UNION PUBLIC SERVICE COMMISSION
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UNION PUBLIC SERVICE COMMISSION
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CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH
O.A.NO.555 OF 2001 & CONNECTED CASES D.D. 16.4.2004
Shri Justice V.S.Aggarwal, Chairman Shri S.K.Naik, Member (A)
Shri Kuldip Singh, Member (J) Dr.A.K.Dawan & Ors. ... Applicants Vs. The Secy. Ministry of Labour New Delhi & Ors. ... Respondents Confidential Report: The question for consideration is if for a promotional post the bench mark prescribed is “Very Good” and the concerned Officer is graded as “Good” whether the said grading should be communicated or not. Held: The Central Administrative Tribunal after examining the entire case law on the point has held that if there is no downgrading of the concerned Government employee in the Annual Confidential Report, the grading of “Good” given to him irrespective of the bench mark for the next promotion being “Very Good” need not be communicated or to be treated as adverse. Cases Referred: 1. AIR 1962 Supreme Court 1893 - M/s. East India Commercial Co. Ltd. Calcutta and another Vs. Collector of Customs, Calcutta 2. (1995) 1 Supreme Court Cases 399 - State of Orissa and Others vs. Bhagaban Sarangi and Others 3. 1996 (33) ATC 217 - U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. 4. JT 1997 (3) S.C. 589 - L.Chandra Kumar Vs. The Union of India & Others 5. 1998 CTJ 129 (MRTPC) - Director General (I and R) vs. Holy Angels School 6. 2001 (2) ATJ 467 - Donatus Engzanang v. State of Mizoram 7. (2001) 7 Supreme Court Cases 469 - Indian Petrochemicals Corpn. Ltd. and another vs. Shramik Sena 8. 2002 (65) Delhi Reported Judgments 607 (FB) - J.S.Garg v. Union of India & Others 9. 2002 (3) ATJ 7 - Dr. Binoy Gupta v. The Union of India and Ors. 10. 2003 (2) ATJ 392 - Dr. J.P.Srivastava v. Union of India & Ors.
ORDER On 17.3.2003, a Bench of this Tribunal referred the following question for
consideration of this Bench:-
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“Whether the grading of “Good” in the Annual Confidential
Report, given to a Government employee, when the grading prescribed in the Bench mark is “Very Good” for the next higher promotion post, should be treated necessarily as “adverse” and so required to be communicated to him in accordance with the law and rules.”
2. This controversy arises as a result of the plea that is being urged that if for a
promotional post, the benchmark prescribed is “Very Good” and the concerned officer is
graded as “Good” whether the said grading should be communicated or not?
3. The matter had been argued earlier before us on 6.1.2004 and it was noted that
though the controversy was before the Supreme Court but as the promotion of many of
the officers was involved, they thought it appropriate to urge the matter to avoid any
delay in affecting their promotion. Furthermore, during the course of submissions, it
transpired that pertaining to this controversy, different High Courts have pronounced
different orders and whether all of them would be binding on the Central Administrative
Tribunal or the judgments of the High Court within whose jurisdiction the Tribunal is
functioning would be binding. On 6.1.2004, the attention of the parties was, therefore,
specifically drawn to the said controversy which was precipitating. The said order
reads:-
“Irrespective of what we have recorded above, since this question also came up for consideration during the course of deliberations, we would request the parties counsel to address us on the controversy because it has been pointed that while judicially reviewing certain orders of different Benches of this Tribunal in India different High Courts have expressed different views. It should also therefore be addressed to this Full Bench as to what is the affect of different judgments of the High Courts which are stated to have become final between those parties.”
4. We have heard the parties counsel with respect to the above said question as well
as pertaining to the question posed by the Division Bench which was referred to this Full
Bench. The Statement of Objects & Reasons of the Administrative Tribunals Act, 1985
(for short, the Act) specifically provides that establishment of the Administrative
Tribunals had become necessary since a large number of cases relating to service matters
were pending before various Courts. It was to deal exclusively with the service matters
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which would go a long way in reducing the burden of the various Courts and for
providing expeditious justice. The preamble of the said Act reads:-
“By section 46 of the Constitution (Forty-second Amendment) Act, 1976, after Part XIV of the Constitution Part XIV A was inserted which relates to Tribunals. In the said inserted Part XIV A article 323A stipulates that Parliament may, by law, provide for the adjudication of trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government. In order to give effect to the aforesaid constitutional stipulation by providing for the establishment of an Administrative Tribunal for the Union and a separate Administrative Tribunal for a State or a Joint Administrative Tribunal for two or more States the Administrative Tribunals Bill was introduced in the Parliament.”
5. The provisions of the Act further show that Section 3(f) defines the Central
Administrative Tribunal to mean the Administrative Tribunal established under sub-
section (1) of Section 4 of the Act. Sub-section (1) to Section 4 gives the power to the
Central Government to establish an Administrative Tribunal to be known as Central
Administrative Tribunal. It reads:-
“4. Establishment of Administrative Tribunals:- (1) The Central Government shall, by notification, establish an Administrative Tribunal, to be known as the Central Administrative Tribunal, to exercise the jurisdiction, powers and authority conferred on the Central Administrative Tribunal by or under this Act.”
The Act further provides for setting up of different Benches of this Tribunal. Sub-section
(1) to Section 18 of the Act permits the appropriate Government to make provisions as to
distribution of the business of the Tribunal amongst the Benches. In exercise of this
power, the Central Government by a notification that was being issued from time to time
the latest being of 23.11.2000 distributed the business of the Tribunal. Suffice to
mention, as would be relevant hereinafter, the Chandigarh Bench of this Tribunal falls
within the jurisdiction of three different High Courts, namely, Jammu & Kashmir High
Court, Punjab & Haryana High Court and the High Court of Himachal Pradesh. Similar
position exists in the case of Allahabad Bench of this Tribunal which, besides falling
within the jurisdiction of Allahabad High Court, also falls within the jurisdiction of
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Uttaranchal Pradesh High Court at Nainital. The position is identical in the case of
Guwahati Bench, Calcutta Bench as well as the Patna Bench of this Tribunal.
6. In exercise of the powers under the Act, the Central Administrative Tribunal
Rules of Practice, 1993 have even been framed. To overcome the situation when there is
a difference of opinion between different Benches of the Tribunal, a provision has been
made to constitute a Larger Bench. Rule 50 provides for preparation and filing of paper
books on reference to the Full Bench. Under Rule 51 of the above said Rules, the
Registrar of the referring Bench has to send a copy of the order of reference to all the
other Benches and under Rule 52, the Registrar of the referring Bench has to forward a
copy of the order of reference to the Registrar of the Principal Bench for securing orders
of the Chairman pertaining to constitution of the Full Bench.
7. Under Section 28 of the Act, from the date this Tribunal came into being, with
respect to service matters, the jurisdiction of all Courts was excluded except that of the
Supreme Court or Industrial Tribunal/Labour Court constituted under the Industrial
Disputes Act.
8. Under Section 26 of the Act, if a Member of the Bench differs in opinion on any
point, the point can be decided according to the opinion of the majority. A decision has
to be taken by the Chairman who can either hear it himself or assign it to any other
Member.
9. In the landmark judgment in the case of L.Chandra Kumar Vs. The Union of India
& Others, JT 1997 (3) S.C. 589, the Supreme Court upheld the principle of judicial
review to be one of the basic structure of the Constitution of India. Resultantly, the
powers of the High Courts to judicially review the orders of this Tribunal could not be
withdrawn. The Supreme Court held that though the Tribunals were competent to hear
the matters where the vires of statutory provisions even has been questioned but they
could not act as substitutes for the High Courts and the Supreme Court. The Supreme
Court held:-
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“95. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts, we may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.”
The Supreme Court thereupon held that the orders passed by the Tribunal would be
subject to judicial review before the High Court where the Tribunal is functioning. The
findings of the Supreme Court in this regard are:-
“92. ............ To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Courts within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.”
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After the decision of L. Chandra Kumar (supra), the orders of this Tribunal became the
subject matter of judicial review before different High Courts. As would be noticed
hereinafter, sometimes views expressed and laws interpreted by different High Courts
were not reconciling and at times were diametrically opposite. According to the learned
counsel who were appearing on behalf of the applicants in particular the Principal Bench,
since the Principal Bench is situated at Delhi, the decision of the Principal Bench are
subject to judicial review before the Delhi High Court and the said decisions should bind
all the Benches of this Tribunal. We do not dispute this proposition. We may mention
that in the present bunch of applications, one matter has been transferred from chandigarh
Bench of this Tribunal and as noticed in the preceding paragraphs, many a times when
Larger Benches are constituted or common questions are involved, applications from
different Benches ay be transferred at one place. At times, exercising powers under
Section 25 of the Act, the applications are otherwise also transferred from one Bench of
the Tribunal to another.
10. If the matter had ended here, there would have been no difficulty but when
different applications are clubbed together which may fall within the jurisdiction of the
different High Courts for judicial review as we have already referred to above. Certain
Benches of this Tribunal could even fall within the jurisdiction of two or three different
High Courts. When this question was posed to the learned counsel, we could not get any
satisfactory answer as to what would be the position of that Bench if it has to follow
different precedents within the same Bench of three different High Courts.
11. However, one fact that cannot be disputed is that this Tribunal is created under
sub Section (1) to Section 4 of the Act. It is one Tribunal. The other Benches have been
established for the sake of convenience to the litigants and for expeditious disposal of the
matters. The scheme of the Act and the Rules clearly indicate that ordinarily this should
have one law which should be applicable to all the Benches of the Tribunal.
12. We are conscious of the decision of the Supreme Court in the case of M/s. East
India Commercial Co. Ltd. Calcutta and another Vs. Collector of Customs, Calcutta, AIR
1962 Supreme Court 1893. In the cited case, appellant – East India Commercial Co. Ltd.
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had applied for grant of licence to import fluorescent tubes and fixtures from the United
States of America. The licence had been issued subject to the condition not to sell the
goods so imported. Subsequently, some breach in the condition was noticed and a notice
had been issued to the licence holder in this regard. One of the questions that came up
for consideration before the Supreme Court was as to whether the decision of the High
Courts would be binding on the Tribunals or not. The Supreme Court held that it would
be binding. The findings read:-
“....... Under Art.227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate Courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working: otherwise, there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction.”
13. In another decision rendered by the Supreme Court pertaining to Orissa State
Administrative Tribunal reported as State of Orissa and Others vs. Bhagaban Sarangi and
Others (1995) 1 Supreme Court Cases 399, the Supreme Court in unambiguous terms
held that the Tribunal is a Tribunal and is bound by the decision of the High Court of the
State. The short judgment of the Supreme Court reads:-
“1. In our opinion, it is not correct for the Tribunal to have stated that they are not prepared to accept the judgment of the Orissa High Court in Kunja Behari Rath v. State of Orissa, O.J.C. No.668 of 1969. We make it clear that the Tribunal in this case is nonetheless a Tribunal and it is bound by the decision of the High Court of the State. It is incorrect to sidetrack or by-pass the decision of the High Court.
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2. However, on the merits of the matter, we do not think that there is any case for interference. The order of the Tribunal appears to be just. We accordingly dismiss the special leave petition.”
However, the question that stares glaringly at us which we have referred to above had not
been the subject mater of controversy before the Supreme Court. In fact while dealing
with contradictory decisions, if any, of the Supreme Court itself, the Supreme Court in
the case of Indian Petrochemicals Corpn. Ltd. and another vs. Shramik Sena (2001) 7
Supreme Court Cases 469 concluded that even when the decision of the Apex Court are
diametrically opposite, the High Courts should decide the matters on merits according to
their own interpretation. The findings read:-
“8. We have perused the impugned order of the High Court. We are unable to appreciate the approach of the High Court. Even when it was faced with diametrically apposite (sic opposite) interpretation of the judgment of this Court, it was expected of the High Court to decide the case (writ petition) on merit according to its own interpretation of the said judgment. Instead the High Court after referring to rival contentions of the parties...”
14. The above said controversy seemingly had only arisen before the Monopolies and
Restrictive Trade Practices Commission in the case of Director General (I and R) vs.
Holy Angels School 1998 CTJ 129 (MRTPC) decided on 15.5.1998. At the outset, we
may mention that as far as the Monopolies and Restrictive trade Practices Commission,
New Delhi are concerned, it has its seat at Delhi. It has jurisdiction through out the
country. It does not have different benches like this Tribunal. However, if the order of
the Commission affects a party residing anywhere in India, such party can invoke the
jurisdiction of the High court exercising the jurisdiction over that area with respect to the
orders of the Commission. Thus, like this Tribunal the orders of the commission are
subject to judicial review in different High Courts except that it does not have different
Benches like one we have already referred to above. However, somewhat similar
situation had arisen and the Commission after broadly considering the same held:-
“(1) If the order of this Commission affects or is likely to affect a party in say State A, and if there is a ruling of that High Court on the point involved in the matter. This Commission will be bound by that ruling of the said High Court.
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(2) If the order of this Commission affects or is likely to affect a party in State A and there is no ruling of the High Court of that State on the point involved in the matter but there is a ruling of the High Court of State B on that point, this Commission will be bind by the ruling of the High Court of State B on that point. (3) If the order of this Commission affects or is likely to affect a party in State A and there is a ruling of the High Court of State A on the point involved in the matter and that ruling of the High Court of State A is in conflict with the ruling of any other High Court whether of a single Bench an equal Bench or a larger Bench, the ruling of the High Court of State A will be binding to this Commission. (4) If the order of this Commission affects or is likely to affect in State A and there is no ruling of the High Court of State A on the point involved in the matter and there are conflicting rulings of two or more different High Courts on that point, the commission will be free to accept the ruling of either or any High Court for the purpose of deciding the case. (5) If the order of this Commission affecting a party in State A is based on the ruling of the High Court in any other State on the point involved in the matter in absence of any ruling on that point by the High Court of State A and subsequently the High Court of State A gives a ruling on that point which might be in conflict with the decision of the High Court which was earlier followed by the Commission in a subsequent case of a party who might be affected in State A, the subsequent ruling of the High Court of State A will be binding to this Commission. (6) If the order of this Commission is likely to affect who different parties in two different States A and B and the High Court of either State has decided the point involved therein, the decision of that High Court will binding to this Commission. If the High Court of States A and B have decided the point separately and their rulings are in conflict with each other, the Commission will be free to follow the ruling of either High Court. (7) If any ruling of a High Court is in conflict with any ruling of the Supreme Court, the ruling of the Supreme Court is always binding to this Commission. (8) In the case of conflict of rulings of the same High Courts on a point of law which is involved in a case before this Commission, the one which is given by a larger Bench will be binding to this Commission. If the conflicting rulings of the same High Courts are by coordinate Benches, ordinarily the ruling which is later in the point of time will be binding to this Commission.”
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15. We do not dispute the proposition enunciated by the above said Commission that
if there is a judgment of the High Court, it would bind this Tribunal. However, if on that
point, there is no judgement of the High Court having jurisdiction, this Tribunal would be
bound by any other judgement of the other High Courts because we have already referred
to above that this Tribunal is one and its orders are subject to judicial review.
16. Keeping in view, the peculiar situation of this controversy which we have already
referred to above particularly when one Bench of this Tribunal is at times under the
territorial jurisdiction of more than one High Courts, it is with respect difficult to
subscribe to the view that in case there is conflict between the judgements of two High
Courts, the judgement of the High Court having territorial jurisdiction would be binding.
In the peculiar situation in which we are placed that may result in an enigmatic situation
because it was brought to the notice of this Tribunal that many a times different persons
posted in different Benches belonging to the very same civil service or cadre file
applications to different Benches and if the Bench considers that the decision of that
particular High Court which is diametrically opposite to the decisions in the other High
Courts is to be followed, this would even bring difficulties in the same cadre or service.
17. Consequently, we hold:-
1. that if there is a judgement of the High Court on the point having territorial jurisdiction over this Tribunal, it would be binding:
2. that if there is no decision of the High Court having territorial jurisdiction on the point involved but there is a decision of the High Court anywhere in India, this Tribunal would be bound by the decision of that High Court:
3. that if there are conflicting decisions of the High Courts including the High Court having the territorial jurisdiction, the decision of the Larger Bench would be binding: and
4. that if there are conflicting decisions of the High Courts including the one having territorial jurisdiction then following the ratio of the judgement in the case of Indian Petrochemicals corporation Limited (supra), this Tribunal would be free to take its own view to accept the ruling of either of the High Courts rather than expressing third point of view.
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18. Having considered this question, we revert back to the main controversy
regarding which the reference was made.
19. During the course of the submissions, it was urged that downgrading without
communicating the remarks thereto would be adverse entry. We had drawn the attention
of the parties counsel of both sides to the order of reference made by the Bench. We
have not been required to consider specifically the case of downgrading of confidential
reports.
20. However, to keep the record straight, it becomes necessary to refer to the said
controversy which in fact, is no more integra. The Supreme Court in the well known
decision rendered in the case of U.P.Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors.
1996 (33) ATC 217:
“3. We need to explain these observations of the High Court. The Nigam has rules, hereunder an adverse entry is required to be communicated to the employee concerned. But not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from very good to good that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidential in the situation is to record reasons for such down grading on the personal file of the Officer concerned and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent
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and the system that should prevail in the Jail Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court.”
It is abundantly clear without any pale of controversy that the Supreme Court was
basically dealing with a matter where there was a steep fall in recording of the
confidential reports and otherwise also not only the Supreme Court was concerned with
the relevant rules of the U.P. Jal Nigam but the said Court held that if there is a
downgrading, in that event, a person who has reached the optimum level must be
convened the same.
21. This decision of the Supreme Court was followed by a Bench of the Guwahati
High Court in the case of Donatus Engzanang v. State of Mizoram 2001 (2) ATJ 467.
The Full Bench of the Delhi High Court in the case of J.S.Garg v. Union of India &
Others, 2002 (65) Delhi Reported Judgments 607 (FB) also took up the matter wherein
the Annual Confidential Reports after being Very Good had been downgraded. The
Judgement of the U.P.Jal Nigam (supra) was referred to by the Full Bench and it was held
that the uncommunicated downgraded remarks could not have been considered. The
Full Bench held:
“13. The learned Tribunal, in our opinion, committed a serious misdirection in law in so far as it failed to pose unto itself a right question so as to enable it to arrive at a correct finding of fact with a view to give a correct answer. The question which was posed before the learned Tribunal was not that whether the petitioner had been correctly rated by the DPC? The question, as noticed hereinbefore, which arose for consideration before the learned Tribunal as also before us was as to whether having regard to the decision of the Apex Court in U.P. Jal Nigam and Ors. (supra), as also Rule 9 of the CPWD Manual the concerned respondents had acted illegally in not communicating his fall in standard. It is now trite that the Court of the Tribunal cannot usurp the jurisdiction of the Statutory Authority but it is also a settled principle of law that the jurisdiction of this court to exercise its power of judicial review would arise in the event it is found that the concerned authority has, in its decision making process taken into consideration irrelevant fact not germane for the purpose of deciding the issue or has refused to take into consideration the relevant facts. The learned Tribunal, in our opinion, while holding that having regard to the decision of the Apex Court in U.P.Jal Nigam and Ors. the DPC could ignore categorisation, committed a serious error in usurping its jurisdiction. Once such categorisations are ignored, the matter would have been remitted to the
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DPC for the purpose of consideration of the petitioner’s case again ignoring the remarks Good and on the basis of the other available remarks. This position stands settled by various judgments of the Supreme Court.”
To the same effect is the Single Bench decision of the Delhi High Court in the case of
Madhu Bala Dham v. Delhi Development Authority in Civil Writ Petition No.5761/2003
decided in January, 2004.
22. The Bombay High Court in the case of Dr. Binoy Gupta v. The Union of India
and Ors. 2002 (3) ATJ 7 was also concerned with the same question where there was
downgrading of the Annual Confidential Reports. Perusal of the judgment reveals that
after earning outstanding report Dr. Binoy Gupta was down graded to Good in the next
year and the remarks had not been communicated. The Bombay High Court relying on
the decision in the case of U.P. Jal Nigam (supra) held:-
“In the light of the decision of the Supreme Court we find that non selection of the petitioner for promotion to the post of Chief Commissioner on the basis of the ACR where communication of down grading has not been made vitiate the proceedings. Therefore, we direct the respondents to convene a review DPC and reconsider the case of the petitioner ignoring the ACRs of the Reviewing Officer for 1995-96 and also ACRs of 1996-97 and 1998-99 and if he is found suitable, give him promotion from the date from which other officers who were promoted on the recommendations of the DPC.” Rule is made absolute accordingly.”
23. It is not only the view of different High Court but the consistent view of this
Tribunal has also been identical. In Original Application No.456/2000 in the case of Sh.
B.L.Srivastava v. Union of India, decided on 16.8.2000, same view following the
decision of U.P. Jal Nigam (supra) had been adopted. The Punjab and Haryana High
Court as would be noticed hereinafter had not approved the same. Similar view had been
expressed by the Principal Bench in the case of A.K.Gupta v. Union of India & Others in
OA No.1016/2001 decided on 2.4.2002 and also in the case of V.S.Arora v. Union of
India & Others in OA No.1570/2001 decided on 7.5.2002. The Lucknow Bench of this
Tribunal in the case of Dr. J.P.Srivastava v. Union of India & Ors. 2003 (2) ATJ 392 also
held on similar lines. There are numerous judgments but it becomes unnecessary to
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multiply the same because as is apparent from the land mark judgment of the Supreme
Court in the case of U.P. Jal Nigam (supra) that when there is downgrading of the Annual
Confidential Reports, the same should be communicated in accordance with law before it
can be considered.
24. Reverting back to the main question that was referred to above that when there are
views expressed which re diametrically opposite of each other, this Tribunal has to take
up one of those views. In the case of Union of India & Others v. M.S.Preeti and Others
in Civil Writ Petition No.13024-CAT of 2002 decided on 22.11.2002, the Punjab and
Haryana High Court did not approve the decision in the case of the B.L.Srivastava
(supra) but concluded that when it is not a case of downgrading, the decision in the case
of U.P.Jal Nigam (supra) will have no role to play. The findings of the said Court read:
“In our opinion, the reason assigned by the Tribunal for entertaining the plea of respondent No.1 is per se erroneous and legally unsustainable and the direction given by it for re-consideration of his case for promotion under BCR Scheme is liable to be set aside. It seems to us that the Tribunal laboured under a mistaken impression that the rules/instructions which regulate recording of ACRs provide for communication of even those entries which are not adverse. During the course of hearing, Shri I.S.Sidhu placed before us the instructions issued by the Government of India for recording the ACRs to show that only adverse remarks are required to be communicated to the officer/employee. This position was not contested by Shri R.K.Sharma. Unfortunately, the Tribunal completely over looked this important aspect of the matter and interfered with the recommendations of the Departmental Promotion Committee by erroneously assuming that average entries were required to be communicated to respondent No.1. The judgment of the Supreme Court in U.P.Jal Nigam’s case (supra) relied upon by the Tribunal has no bearing on the case of respondent No.1. In that case, the Supreme Court considered the question whether the entries recorded in the ACR can be down graded without giving notice and opportunity of hearing to the affected employee. Their Lordships of the Supreme Court answered the question in favour of the employee and observed as under: All what is required by the Authority recording confidential in the situation is to record reasons for such down grading on the personal file of the officer concerned and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an
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optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must in all events be not reflected in such variations as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case, we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain.” As already mentioned above, the present one is not a case of down grading the ACRs but consideration of properly recorded ACRs for the purpose of adjudging the suitability of the employee. Therefore, the Tribunal was clearly wrong in placing reliance on the judgment of the Supreme Court.”
The same High Court in the case of Union of India & Another v. Col. Tilak Raj
and Others, Civil Writ Petition No.18833-CAT of 2002 decided on 13.5.2003 was again
concerned with the matter where there was no downgrading of the Annual Confidential
Reports. While setting aside the decision of the Chandigarh Bench, the Punjab and
Haryana High Court again held that in such an event, it is not required that the remarks
should be communicated. It held:
“The judgment of the Supreme Court in U.P. Jal Nigam’s case (supra) on which reliance has been placed by the Principal Bench of the Tribunal for granting relief to B.L.Srivastava, A.K.Anand and A.K.Gupta and which has also been relied upon in the impugned order has no bearing on the case of respondent no.1. The question which fell for consideration before the Supreme Court in U.P.Jal Nigam’s case (supra) was whether the entries recorded in the Annual Confidential Reports can be downgraded without giving notice and opportunity of hearing to the affected employee.”
25. Same view was taken by the Principal Bench in OA No.2967/2002 in the case of
Tarun Kumar v. Union of India & Others, decided on 25.4.2003. Herein also there was
no downgrading of the Confidential Reports. It was held:
“9. To resolve the said controversy as to whether the applicant has been downgraded to take advantage of the decision in the case of the U.P.Jal Nigam (supra), we had called for the Confidential Reports of the applicant. A perusal of the same reveals that for the years in question, to begin with, the applicant had “Average”/”Good” reports. In the later years, he had improved his performance and his work was assessed as “Very Good”. The
17
Departmental Promotion Committee taking note of the overall assignment had assessed the work of the applicant for the years in question as “Good”. Therefore, it is not a question of down grading or steep fall that the applicant can press into service the decision of the Supreme Court in the case of U.P. Jal Nigam (supra). Therefore, the decision of the Punjab and Haryana High Court in peculiar facts would certainly apply.”
The Division Bench of the Delhi High Court in the case of Rajinder Kumar v. Union of
India and Others, 91 (2001) DLT 170 also considered the same controversy wherein
certain persons junior to Rajinder Kumar had been promoted. He felt aggrieved and
made series of representations and filed OA No.2488/1997 before the Principal Bench of
this Tribunal. He had been found unfit for promotion because he had earned only one
“Very Good” annual Confidential Repot for one year and the “Average” entry for
remaining four years. His argument was that the “Average” entry had not been
communicated. The Delhi High Court held that “Average” entry was not an average
entry and did not require communication. The decision in the case of U.P.Jal Nigam
(supra) was distinguished. The Division Bench held:-
“10. Coming to the other issue whether “Average” entry earned by petitioner for four years after the “Very Good” entry for one year could be treated drastic variation to assume adverse character. We feel that the ratio of Supreme Court judgement in Jal Nigam’s case (supra) was being read out of context, the Apex Court in that case had found a drastic variation from “Excellent” entry for one year to “Poor” next year and held that Competent Authority ought to have recorded reasons for such a steep downgrading and communicated it to enable the employee to improve his performance. But all this was not attracted in the present case because petitioner was graded “Average” which was not an adverse entry under the relevant guidelines not only for one year but also for four years non-stop. This, therefore, was not a case of any drastic variation from top to bottom for one year. Moreover, “Average” entry did not require any communication as it was not considered an adverse entry under the guidelines. Reliance on the Supreme Court judgement appears misplaced on the face of it.”
Another Division Bench of the Delhi High Court by a speaking order in Civil Writ
Petition No.1386/2002 in the case of Union of India v. R.K. Anand had held:
“The only question which arise for consideration in this writ petition is as to whether the office memorandum dated 30th December 1983 – 6th January 1984 in terms whereof the Departmental Promotion Committee had been authorised to classify the officers as “Outstanding” “Very Good” and
18
“Good” on the basis of their merit upon examination of their respective records of service of the candidate, is valid. It is not in dispute that the Departmental Promotion Committee had fixed “Very Good” as the Bench Mark. The respondent herein had received “good” for one year. Tribunal following the decision of the Apex Court in U.P. Jal Nigam Vs. Prabhat Chandra Jain, AIR 1996 SC 1661 had held that, in the event, a Bench mark “Very Good” is fixed, the ACRs should have been communicated to the respondent herein. We do not find any infirmity in the judgement of the Tribunal. Be it recorded that the same view has been taken by a Division Bench of this Court in Union of India and another vs. B.L.Srivastava and Others (Civil Writ Petition No.715/2001) disposed of on 2nd February 2001.
For the reasons as aforementioned, we do not find any merit in this writ petition, which is accordingly dismissed.”
In other words, it was concluded by the Delhi High Court that even when there is a Good
entry, it has to be communicated if it is below the benchmark.
26. Keeping in view these diametrical views that have been expressed,
necessarily we have to adopt one of those views for the reasons we have recorded above.
27. Concept of fairness in administrative action has been the subject matter of
considerable judicial debate, but there is totally unanimity on the basic element of the
concept to the effect that the same is dependent upon the facts and circumstances of each
matter. No straight jacket formula can be evolved. As a matter of fact, fairness is
synonymous with reasonableness and on the issue of ascertainment of meaning of
reasonableness, common English parlance referred to as what is in contemplation of an
ordinary man of prudence similarly placed. (From State of Punjab v. V.K. Khanna and
Others, 2001 SCC (L&S) 1010).
28. It is settled principle that adverse entries cannot be acted upon till a
representation against the same has been afforded. The Supreme Court in the case of
Gurdial Singh Fijji v. State of Punjab and Others, (1979) 2 SCC 368 had held:-
“17. The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted
19
upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him.”
With these basic principles which are not in controversy, we refer to the contentions that
were advanced before us. According to the learned counsel for the applicants and some
of the applicants who had appeared in person that once the confidential report is recorded
which is below the benchmark, necessarily it must be communicated because it had
adverse affect on the service prospects of the individual. On the contrary, the view
expressed was that the “Good” entry which is per se not adverse entry need not be
communicated and this is a matter to be looked into by the Departmental Promotion
Committee as to whether a person has to be promoted or not.
29. We know from the decision rendered in the case of State Bank of India v.
Kashinath Kher, 1996 SCC (L&S) 1107 that the object of writing confidential reports is
to give an opportunity to the officer to remove deficiency and to inculcate discipline.
Similarly, in the case of State of U.P. v. Yamuna Shankar Misra and Another, 1997 SCC
(L&S) 903, the same view was re-expressed holding that before forming an opinion or
making adverse remarks, it is better to confront the concerned officer. In paragraph 7, the
Supreme Court held that the purpose is to enable an employee to improve his
performance in public service. The findings read:-
“7. It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to
20
a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency or administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidential should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standard of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.”
30. Necessarily from the aforesaid, it follows that if the purpose of
communicating of the confidential reports is to let the officer improve his performance
and if the concerned person has already earned a good report which is a positive entry
unless the reporting or the reviewing officer believes that it should be so communicated
and there are deficiencies, the same need not be communicated.
31. During the course of submissions, the instructions issued by the Government
of India that only adverse entries have to be communicated were not challenged.
Therefore, we deem it unnecessary to reproduce the same.
21
32. The settled principle is that no person has a fundamental right to be
promoted. He has only a right to be considered for promotion. In the case of U.P. Jal
Nigam (supra), the Supreme Court held that a “Good” report is a positive entry.
33. Strong reliance is being placed on the following lines recorded by the Apex
Court in the case of U.P.Jal Nigam (supra):-
“It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true.”
These findings necessarily drawn their colour and strength from the earlier findings of the
Supreme Court which we have reproduced above in extenso. The Supreme Court was
dealing with specific rules of the U.P. Jal Nigam. There was a steep downfall in the
performance of the concerned person in the Annual Confidential Reports. The findings
basically reproduced above do not lay down any principle of law as to when it would be
taken as adverse. The decision of the Supreme Court referred to above, therefore,
necessarily has to be considered keeping in view the facts that were before the Apex
Court. The findings, therefore, will not be help the applicants in this regard. The
expression adverse cannot be taken to be an expression of art. There is no statutory
definition of the said expression adverse entry. In the normal balance it would be taken
as opposed to one’s interests, unfavourable, harmful or detrimental to his interests.
Necessarily, an adverse entry has to be seen at the time when the question of promotion
arises. One cannot ignore that in a given case when Good remarks are recorded in a
particular year and on basis of that, the person concerned may earn his promotion but
after four years for the next promotion the same Good remarks may not meet the
benchmark of “Very Good”. Can it be said in that case that it was an adverse entry
recorded five years back? Under the relevant instructions, remarks have to be
communicated within a stipulated period. In our view, the answer would be in the
negative. One cannot earn promotion and after years repeat that it was an adverse
remarks recorded five years earlier. We reproduce the extract of the findings of the Full
Bench of this Tribunal in the case of Manik Chand v. Union of India & Others, 2002 (3)
ATJ 268. The Full Bench noted:
22
“Further, whether a good positive entry is adverse or not, comes to light only when a meeting of the DPC takes place and independent assessment is made by the DPC. If such grading arrived at DPC, were to be communicated to the concerned Government servant perhaps, no purpose would be served except to bring it to the knowledge of the concerned person, because the entries in all the five ACRs which were considered by the DPC will have to be communicated, if they are treated as adverse, even though they may not be adverse in the strict sense. Therefore, the Government servant cannot be expected to improve his performance during the previous four years, if informed after a period of five years. The improvement can come about only for the year immediately preceding the year when the meeting is held. Therefore, conveying of the remarks for improving the performance for promotion may not serve the purpose, because the assessment by the DPC is not to be communicated.”
The said Full Bench had relied upon another decision of the Full Bench of Hyderabad in
the case of V.Pallam Raju v. Union of India & Others in OA No.777/1993, rendered on
10.2.1995. Consequently, if a person earned a ‘Good’ report in his Confidential Report,
it cannot be taken to be an adverse remark when there is no downgrading. Adverse
remarks can indicate the defects and deficiencies in the quality of work, performance and
conduct of an officer. It may not include the words in the nature of counsel or advice.
The adverse remarks have to be seen at the time when they are recorded. If the reporting
and reviewing officers have recorded the performance of an officer to be ‘Good’,
necessarily his total and overall performance have to be considered later on. It cannot,
therefore, be held that merely because on subsequent date, he may not meet the
benchmark, the remarks would automatically turn colour and become adverse.
34. Our attention was greatly drawn towards a decision of this Tribunal in the
case of Udal Krishna v. Union of India (1996) 33 ATC 802. A Division Bench of this
Tribunal at Allahabad was confronted with a similar situation. Their attention was drawn
towards a decision of the Patna Bench of this Tribunal carrying a benchmark in the case
of B.P. Singh v. Union of India (1994) 28 ATC 501. The learned members of the Bench
at Allahabad did not subscribe to the view in the case of B.P. Singh (supra) and
proceeded on to hold to the contrary. This is indeed totally contrary to the judicial
discipline. The decision, therefore, cannot be taken to be precedent pertaining to the
nature of the arguments t hat were advanced before us. We, therefore, subscribe to the
23
view taken by the Punjab and Haryana High Court in the case of M.S.Preeti (supra) and
of the Delhi High Court in the case of Rajender Kumar (supra). We answer the reference
as under:
“If there is no downgrading of the concerned person in the Annual Confidential Report, in that event, the grading of ‘Good’ given to the Government employee irrespective of the benchmark for the next promotion being ‘Very Good’ need not be communicated or to be treated as adverse.”
35. Place the Original applications before the appropriate bench for further
action.
***
24
CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH
ORIGINAL APPLICATION NO.683/2004 D.D. 15.7.2005
Hon’ble Shri Anand Kumar Bhatt, Member (A)
Hon’ble Shri S.G.Deshmukh, Member (J) Shri Dr. A.T.Kumbhar ... Applicants Vs. M/O Personal, Public Grievances & Pensions ... Respondents Confidential Report: Furnishing of various documents considered by UPSC for selection to All India Service – UPSC has claimed privilege in respect of certain documents in its custody – Tribunal has upheld the privilege claimed by UPSC but directed for production of other documents for the perusal of the Tribunal.
ORDER 1. Applicant by Shri Dinesh Tiwari, Respondents by Shri V.S.Masurkar. 2. M.P. 295/2005 has been filed by the applicant for making available records in the
custody of the State Government and UPSC for his inspection. Reply has been filed by
the State Government. An affidavit has been filed by Chairman, UPSC claiming
privilege with regard to the files which are in their custody. We have considered the
various documents which have been requested for by the applicant for inspection. As far
as sub-para (a) and (b) in para 7 of the M.P. is concerned, these letters have not been
referred to by Respodnent No.2 (State Government) in the reply. We do not think that
under the circumstances inspection can be allowed. As far as item (c) regarding zone of
consideration of DPC 2003 is concerned it has been attached with the reply filed by
respodnent No.3 (UPSC). As far as (d) is concerned the applicant is apparently referring
to the files in the custody of UPSC for which they have claiming privilege under Section
123 of Indian Evidence Act 1872. We do not have precedent in the Tribunal in which
file relating to correspondence of DPC proceedings and selection to All India Service has
been shown to the applicant and in addition the UPSC has claimed privilege in their
affidavit. I do not think that it is essential for hearing the present case and we do not
consider it necessary to further hear the counsel for the applicant in this regard.
25
3. As far as (e) nature of the charges against Mr. Sanap and Mr. M.S.Sawant and
under what circumstances they were exonerated, they have also been impleaded by the
applicant in the array of the respondents. However we cannot allow any fishing exercise
on the part of the applicant in the case of other colleagues of his, who were also in the
zone of consideration. The applicant’s case has to be considered on its own merits.
Regarding the articles published in the News Papers, it is clarified by the State
Government that UPSC has asked for State Government’s comments. We do not think
that any inspection is required. There is no order and simply a request of the UPSC
asking the comments from the State Government as intimated by the Respondents and
this is obviously known to the applicant.
4. As far as letter mentioned in para 13 is concerned the State Government wrote to
DOPT to accord sanction to fill up 10 clear vacancies in promotion quota which will be
available on 1.1.2004. Accordingly Central Administration Department invited detailed
proposal from Revenue & Forest Department for Promotion. UPSC wrote to State
Government on 10.3.2004 for forwarding the proposal. As far as the documents
mentioned in para 13 of State Government reply is concerned, the respondents may
produce them for the perusal of the Court. However no such inspection can be allowed
to the applicant. There is no letter mentioned in para 15 of the State Government. As far
as (h) regarding correspondence with Chief Minister of Maharashtra and UPSC, there is
no such correspondence between Chief Minister of Maharashtra and UPSC as mentioned
in para 8 of the reply to MP of the State Government. So far as ACR’s of all the
candidates in the zone of consideration in 2002 and 2003 as well as their service records
are concerned, this is again a fishing exploration on the part of the applicant. In any case,
the Tribunal cannot sit on judgement of the assessment made in regard to other
candidates in comparison to that of the applicant and this cannot be allowed. ACR of the
applicant and DPC proceedings cannot be made available to the applicant for the reason
that the Tribunal cannot allow fishing exercise on the part of the applicant, and there is
absolutely no precedent for this in the Tribunal. Proceedings of DPC and service record
and ACRs of the applicant be made available for perusal of the Tribunal.
26
5. M.P. is allowed partly as has been discussed. Some of the documents will be seen
by the Court as mentioned above. So far as privilege claimed by the UPSC for
documents in their custody is concerned we do not have any reason not to allow such
request. Disclosure of such documents to the applicant would in effect mean impeding
the process of independent noting by the officials for a sensitive matter like promotion to
All India Service. We also do not consider it necessary to further hear the counsel for the
applicant as prayed by him.
6. Shri. Tiwari states that in Writ Petition No.3109/2004 the Hon’ble High Court by
order dated 22.2.2005 in para 10 have stated that if the applicant wants the Tribunal to
record evidence of some persons it can be decided under the provisions of Administrative
Tribunals Act 1985. We do not find any such application by the applicant in this regard.
On application we can consider the matter. It has been pointed out that similar
matters which impugn the same DPC are fixed for hearing on 2.8.2005. Accordingly the
present case is also fixed on 2.8.2005. We have already clubbed all similar matters in our
order dated 13.6.2005.
***
27
ANDHRA PRADESH PUBLIC SERVICE COMMISSION
28
1994(4) SCC 391 IN THE SUPREME COURT OF INDIA CIVIL APPEAL NOS.4440-42 OF 1994
D.D. 6.5.1994
THE HON’BLE MR. JUSTICE K.RAMASWAMY AND
THE HON’BLE MR. JUSTICE N.VENKATACHALA
S.Satyapal Reddy, etc. ... Appellants Vs. Govt. of A.P. & Ors. ... Respondents Qualification: Section 213(4) of the Motor Vehicles Act, 1988 prescribes qualification for appointment to any officer or Class of officers under the Act – As against Diploma in Mechanical Engineer prescribed under the said Act Andhra Pradesh Government prescribed Degree in Mechanical Engineering or Automobile Engineering – After examining the relevant constitutional provision the Supreme Court has held that the State Government while appointing its own officers in its Transport Department as a necessary adjunct is entitled to prescribe qualifications for recruitment or conditions of service - But while so permitting the State Government may accept the qualifications or prescribe higher qualification but in no case prescribe any qualification less than the qualifications prescribed by the Central Government. Case referred: (1972) 2 SCR 33 page 47 (Union of India v. H.S.Dhillon)
JUDGMENT
Leave granted The A.P. Public Service Commission had issued an advertisement on April 20,
1992 calling for applications for recruitment to the posts of Asst. Motor Vehicles
Inspectors in Andhra Pradesh Transport Sub-ordinate Service. Though appellants had
applied for the said posts, since they possessed only the qualification of diploma in
Mechanical Engineering, they were not called for interview. The appellants, therefore,
filed O.A. Nos.2757/92 and batch in the A.P. Administrative Tribunal questioning the
competence of the State Govt. in prescribing the qualification of degree in Mechanical
29
Engineering or Degree in Automobile Engineering or diploma in Automobile
Engineering or any equivalent qualification as conditions for recruitment, contending that
it was the Central Government which had been conferred with the power under Section
213 (4) of the Motor Vehicles Act, 1988, for short ‘the Act’ of prescribing the
qualifications for appointment to any office or class of officers under the Act, which had
prescribed the following:
“1. Qualifications:
1) Minimum general educational qualification of a pass in X standard: and
2) (i) A Diploma in Mechanical Engineering (3 year course) or (iii) a Diploma in Mechanical Engineering awarded by the State Board of Technical Education (3 year course) or (iv) Any qualification in either of the above disciplines declared equivalent by the Central Govt. or State Govt.”
When the appellants, had, become qualified to apply for and seek recruitment to the said
posts, the prescription of qualification of graduation in Mechanical Engineering by the
State Government coming in conflict with the Act, stands superceded. The Tribunal by
its Order dated July 30, 1993 repelled the contention and dismissed the petitions. Thus,
these appeals by special leave.
Shri K.Madhava Reddy and Shri Gururaja Rao, learned Senior counsel for the
appellants contended that as the Act was made under Entry 35 of List III of the VIIthe
Schedule to the Constitution, the Act receives paramountcy and the Central Govt. alone is
competent to prescribe the qualifications as to eligibility for recruitment as Asstt. Motor
Vehicles Inspectors and the power of the State Govt. to that extent gets eclipsed and the
prescription of qualification of degree in mechanical engineering becomes void since it
runs in conflict with the qualifications prescribed by the Central Govt. Therefore, the
State rules become inapplicable. In support thereof, it was further contended that other
State Governments had fallen in line in prescribing the qualification of Diploma in
Mechanical Engg. Prescribed by the Central Govt. and the State Govt. of A.P. had not
30
adopted that course. Since the State rule is in conflict with the Central rule, the Central
rule would prevail over the State rules, by operation of Art.254 of the Constitution.
Sri V.R. Reddy, learned A.S.G. argued that sub-s(1) of s.213 of the Act preserves
the power to the State Govt. to appoint an Officer or class of officers to implement the
Act, sub-s. (4) gives power to the Central Govt. to prescribe “the minimum
qualifications” for appointment as Officers or class of officers to such posts under the
Act and that would not mean that the State Govt. having been given the power to
appoint the officers, are denuded of their power to prescribe higher qualifications than the
one prescribed by the Central Government. There is no conflict between the power
exercised by the Central Govt. under the Act vise-a-versa the power of the State Govt.
under Entry 41 of List II of “the public service” and power preserved to the Governor
exercisable under proviso to Act.309 of the Constitution. Therefore, the State rules are
not Ultra vires.
Having given our anxious consideration to the respective contentions, we find that
the State’s contention merits acceptance. It is seen that marginal note in s.213 for
“appointment of Motor Vehicles Officers” indicates the subject of the Section, Sub-
section (1) says that the State Govt. may, for the purpose of carrying into effect the
provisions of this Act, establish Motor Vehicles Department and “appointment as officers
therefore such persons as it thinks fit”. The power of appointment includes the power to
select a fit and competent person who it thinks fit to hold the post and would discharge
efficiently the functions assigned under the Act. It includes the power to prescribe
qualifications to select suitable officers. The Parliament prescribed that power to the
State Govt. under s.213 (1) itself by allowing it to appoint their officers whom it finds fit
to carry into effect the provisions of the Act. Sub-s.(4) gives power to the Central Govt.,
having regard to the object of the Act, by a Notification in the Official Gazette “to
prescribe minimum qualification” which the officers or class of officers thereof shall
possess for being appointed as subh officer or to the cadre belonging to the State Govt.
Under Entry 41 of list II (State List) of VII Schedule to the Constitution, the public
service includes the services of the officers to be appointed under sub-s.(1) of s.213 of the
31
Act. No doubt, as contended by the learned counsel for the appellants that the Act
receives paramount. Since under Entry 35, the subject under the Act covers the
concurrent field. Sub-s.(4) of s.213 also preserves the power to prescribe qualifications
higher than that “minimum qualification” prescribed by the Central Govt. to appoint the
“said officers or any class thereof shall possess for being appointed as such”.
In Union of India vs. H.S Dhillon [(1972) 2 SCR 33 at 47] considering the scope
of Art. 246 of the Constitution, a bench of seven Judges of this Court held thus:
“Reading Art.246 with the three Lists in the Seventh Schedule, it is quite clear that Parliament has exclusive power to make laws with respect to all the matters enumerated in List I and this notwithstanding anything in clause (2) and (3) of Art.246. The State Legislatures have exclusive powers to make laws with respect to any of the matters enumerated to List II. But this is subject to clauses. (1) and (2) of Art.246. The object of this subjection is to make Parliamentary legislation of matters in Lists I and III paramount. Under cl. (4) of Art.246 Parliament is competent also to legislate on a matter enumerated in State List for any part of the territory of India not included in a State. Art.248 gives the residuary powers of legislation to the Union Parliament.”
It is thus settled law that the Parliament has exclusive power to make law with
respect to any of the matters enumerated in List I or concurrent power with the State
legislature in List III of the Seventh Schedule to the Constitution which shall prevail over
the State law made by the State Legislature exercising the power on any of the entries in
List III. If the said law is inconsistent with or incompatible to occupy the same field, to
that extent the State law stands superceded or becomes void. It is settled law that when
Parliament and the Legislature derive that power under Art. 246 (2) and the entry in the
concurrent list, whether prior or later to the law made by the State legislature, Art.246 (2)
gives power, to legislate upon any subject enumerated in the concurrent list, the law made
by the Parliament gets paramountcy over the law made by the State Legislature unless the
State law is reserved for consideration of the President and receives his assent. Whether
there is an apparent repugnance or conflict between Central and State Laws occupying
the same field and cannot operate harmoniously in each case the court has to examine
whether the provisions occupying the same field with respect to one of the matters
32
enumerated in the concurrent list and whether there exists repugnancy between the tow
laws. Art.254 laid emphasis “with respect to that matter”. Repugnancy arises when both
the laws are fully inconsistent or are absolutely irreconcilable and when it is impossible
to obey the one without disobeying the other. The repugnancy would arise when
conflicting results are produced when both the statutes covering the same field are
applied to a given set of facts. But the Court has to make every attempt to reconcile the
provisions of the apparently conflicting laws and Court would endeavor to give
harmonious construction. The purpose to determine inconsistency is to ascertain the
intention of the Parliament which would be gathered from a consideration of the entire
field occupied by the law. The proper test would be whether effect can be given to the
provisions of both the laws or whether both the laws can stand together. Section 213
itself made the distinction of the powers exercisable by the State Govt. and the Central
Govt. in working the provisions of the Act. It is the State Govt. that operates the
provisions of the Act through its officers. Therefore, sub-s.(1) of s.213 gives power to
the State Govt. to create Transport Department and to appoint officers, as it thinks fit.
Sub-section (4) thereof also preserves the power. By necessary implication, it also
preserves the power to prescribe higher qualification for appointment of officers of the
State Govt. to man the Motor Vehicles Department. What was done by the Central Govt.
was only the prescription of minimum qualifications, leaving the field open to the State
Govt. concerned to prescribe if it finds necessary, higher qualifications. The Governor
has been given power under proviso to Art.309 of the Constitution, subject to any law
made by the State Legislature, to make rules regulating the recruitment which includes
prescription of qualifications for appointment to an office or post under the State. Since
the Transport Department under the Act is constituted by the State Govt. and the officers
appointed to those posts belong to the State service , while appointing its own officers,
the State Govt. as a necessary adjunct is entitled to prescribe qualifications for
recruitment or conditions of service. But while so prescribing the State Govt. may
accept the qualifications or prescribe higher qualification but in no case prescribe any
qualification less than the qualifications prescribed by the Central Govt.. under sub-s.(4)
of s.213 of the Act. In the later event, i.e., prescribing lesser qualifications, both the rules
cannot operate without colliding with each other. When the rules made by the Central
33
Govt. under s.213 (4) and the statutory rules made under proviso to Art.309 of the
Constitution are construed harmoniously, there is no incompatibility or inconsistency in
the operation of both the rules to appoint fit persons to the posts or class of officers the
State Govt. vise-a-versa the qualifications prescribed by the Central Govt. under sub-
s.(4) of s.213 of the Act.
It is seen that A.P. Transport subordinate Service Rules have been made by the
Governor exercising the power under proviso to art.309 of the Constitution and rule 6
thereof prescribes the qualifications as enumerated above. Graduation in Mechanical
Engineering is one of the higher qualifications than Diploma. Since s.213(4) gives such
power to the State Govt. by operation of s.217 of the Act, the statutory rules remain valid
and operate in the field without colliding with the Central Rules. Both the Rules would
operate harmoniously and effect can be given to both the Rules. Thus the question of
inconsistency or repugnancy under Art.254 of the Constitution does not arise. Therefore,
we do not find that there is any conflict in the exercise of power by both Central and State
Govt. or inconsistency in operation of the provisions of the statutory rules made by the
Governor under proviso to Art.309 and the rules made by the Central Govt. under
s.213(4) of the Act. The recruitment as per State Rules is valid and legal.
The appeals are accordingly dismissed, but in the circumstances, without costs.
***
34
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD WRIT PETITION NO.10137 OF 1999
D.D. 18.08.2001
THE HON’BLE SHRI S.B.SINHA THE CHIEF JUSTICE AND
THE HON’BLE SHRI. V.V.S. RAO
R.Bhima Nayak ... Petitioner Vs. Govt. of A.P. & Ors. ... Respondents
Delay and laches:
The petitioner who was a candidate for the State Civil Services Examination (Group I Services) and selected as Deputy Collector but appointed as Deputy Superintendent of Police. One H.Ramulu, who was selected for the post of Deputy Collector failed to turn up and 4th respondent was appointed in the said vacancy on 26.9.1990. The petitioner challenged the said appointment before A.P. Administrative Tribunal which was dismissed. This Writ Petition was filed against the said order. On the ground of delay and laches the High Court dismissed the writ petition.
Cases referred:
1) (1994) 6 SCC 52 – A.Hamsaveni v State of Tamil Nadu 2) AIR 1995 SC 1991 – State of Maharashtra v. Digambar 3) AIR 1994 SC 2559 – High Court of M.P. v Mahesh Prakash
JUDGMENT
This writ petition is directed against a judgement dated 16-04-1999 passed by the
A.P. Administrative Tribunal in Original Application No.139 of 1993 whereby and where
under the application filed by the petitioner herein was dismissed. In the said original
application the petitioner prayed for the following relief:
To direct the 1st, 2nd and 3rd respondents here in to appoint the applicant to the post of Deputy Collector category-II in Revenue Services for which post he is eligible for the recruitment to group-1 services for 1983-84 quashing the appointment of the 4th respondent as Deputy Collector ordered in G.O. Ms.No.883, Revenue (Ser-I) Department, dt 26-09-1990 and to treat the services of the applicant with effect from 20-10-1987 i.e., the date on which applicant joined as Deputy Superintendent of Police , as Deputy collector duly assigning seniority at the appropriate place in the
35
category of Deputy collectors with all attendant benefits and issue service and financial benefits.
In pursuant to an advertisement dated 16-06-1983 issued by the A.P. Public
Service Commission for State Civil Services Examination (Group-I services) the
petitioner applied for and was selected. He, however, could not be appointed as Deputy
Collector. He was appointed as a Deputy Superintendent of Police. According to the
petitioner, he lodged a claim for the post of the Deputy Collector in the place of H.
Ramulu, the lone Scheduled Tribe approved candidate who failed to turn up. Allegedly
between the period 15-12-1988 and 26-03-1992 he submitted various representations
having regard to the fact that the name of H.Ramulu was deleted from the list of
approved candidates. On 10-08-1987, the 3rd respondent selected 15 other candidates.
On 26-09-1990 the 4th respondent was appointed as a Deputy Collector. An original
application was filed questioning the said appointment. Again one P.Tippanna was
appointed as Deputy Collector who joined the said post on 27-11-1995. Similarly one
B.Ramanjaneyulu joined in the post of Deputy Collector on 03-06-1996. G.O.
Ms.No.394, dated 06-06-1998, regularized the services of the 4th respondent with effect
from 21-12-1988. One D Vara Prasad and others had filed an original application
No.5610 of 1998 wherein allegedly a counter-affidavit was filed wherefrom it transpired
that the 4th respondent was appointed in the vacancy of H.Ramulu.
By the impugned order dated 16-04-1999 the aforementioned original application
was dismissed where against the present writ petition is filed.
The main contention of the petitioner is that he belongs to Scheduled Tribes
category and having regard to the fact that the name of another said post as he had not
been selected in the year 1983-84. It is stated that the petitioner is more meritorious than
the 4th respondent as he had secured 720 marks as against 692 marks obtained by the 4th
respondent.
The learned counsel appearing on behalf of the petitioner would submit that the
learned Tribunal committed an error in passing the impugned judgement in so far as they
filed to take into consideration that the delay in filing the original application was
36
condoned and thus the said application could not have been dismissed on the ground of
delay and laches. The learned counsel would contend that delay in disposal of the
original application could not have been attributed to the petitioner. In any event having
regard to the provisions of Section 19(4) of the Administrative Tribunal’s Act the
services of the 4th respondent could not have been directed to be regularized. It was
submitted that the 4th respondent joined the post of Deputy Collector after lapse of 116
days which was in violation of G.O.Ms.No.822 General Administration (Ser-A)
Department, dated 18-09-1967.
Mr. K Lakshmi Narasimha, the learned counsel appearing on behalf of the
respondents on the other hand drew our attention to the order of the Supreme Court. A
wait list was prepared pursuant whereto the 4th respondent was appointed as he was first
in the wait list. Our attention has been drawn to the fact that even in the year 1992 the
three other candidates filed original application questioning the appointment of the 4th
respondent. But the said original application was dismissed by the Tribunal. The learned
counsel would urge that even a special leave petition filed there against was dismissed.
Mr. K.Lakshmi Narasimha would urge that having regard to the fact, that the petitioner
herein had already joined the post of Deputy Superintendent of Police and his probation
has been declared and he having been regularized in services, the question of granting
any relief to the petitioner at this stage dose not arise. It was further submitted that the
petitioner herein did not relinquish the job and in terms of the extant rules the panel and
the select list expired by efflux of time.
It is not in dispute that the petitioner was found to be more meritorious than the
4th respondent but from the factual matrix as noticed hereinbefore, it is no doubt that the
petitioner herein accepted the post of the Deputy Superintendent of police. It may be that
he lodged his claim in relation to the post of Deputy Collector but it has not been
disputed before us that in terms of the rules he was put on probation and upon completion
of the period of probation his service have been regularized. The petitioner filed the writ
petition only in the 1993. G.O.Ms.No.394, dated 06-06-1998, as noticed hereinbefore,
regularized the service of the 4th respondent, with effect from 21-12-1988.
37
It may be that the Tribunal condoned the delay but condonation of delay alone, in
our opinion would not mean that the court or the tribunal loses its jurisdiction to dismiss
the writ petition on the ground of delay and laches on the part of the petitioner. It is one
of the settled legal principles in service jurisprudence that settled things should not be
unsettled after a long number of years. (See N.KOTAM RAJU v REGIONAL DEPUTY
DIRECTOR OF FISHERIES KAKINADA) The 4th respondent had been working since
1991. The services of the 4th respondent were regularized with effect from 21-12-1988
on the ground that he had been appointed in the batch of Deputy Collectors for the year
1983-84. The S.L.P.No.4041 of 1989 filed by A.V.Bhogeswardu was disposed of on 21-
09-1989 directing thus:
We accordingly dispose of the appeal by directing that the existing vacancies remaining to be filled up on account of non joining of selected candidates for whatever reason should be filed up by the present list.
The appointment of the 4th respondent was made in terms of the directions of the
Supreme Court. Therefore, it would not be proper to pass an order in which would run
contrary to the order passed by the Supreme Court. It may be noticed that the
appointment of the 4th respondent was challenged by A.Tirupathi in O.A.No.35501 of
1990 and another Scheduled Caste candidate in Writ Petition No.53243 of 1990 on the
same ground as that of the petitioner herein. The said petitions were dismissed on 30-06-
1994 No.23459 of 1995 was also dismissed on 29-09-1995. One M Naga Rao also filed
an original application before the tribunal questioning the appointment of the 4th
respondent being No.4040 of 1992 which has also been dismissed.
The 4th respondent had not opted for the other posts and he was in the wait list
whereas the petitioner joined in the post of Deputy Superintendent of Police.
We, therefore, are of the opinion that having regard to the peculiar facts and
circumstances of this case and particularly in view of the fact situation obtaining herein,
this court should not exercise its discretion under Article 225 of the Constitution of India.
It is now a well-settled principle of law that a person who sleeps over his right for a long
time may not be granted any relief. In A. HAMSAVENI v STATE OF T.N, it has been
held:
38
Sleeping over the rights, if there were any, with eyes open does not cure laches.
[See STATE OF MAHARASHTRA v DIGAMBAR, STATE OF
MAHARASHTRA v ADDITIONAL COMMISSIONER AND OTHERS, HIGH
COURT OF M.P. v MAHESH PRAKASH]. Such relief may also be not granted when it
is likely to prejudice the right of the other persons. Furthermore, in terms of Rule 6 of the
A.P. Service Commission Rules of procedure, the Commission may select candidates
from the ranking list in force in place of those who relinquish the selection or who do not
join duly within the time given. The petitioner had not opted to remain in the ranking list
but has joined as the Deputy Superintendent of Police. Thus, he sat on the fence for a
long time.
In view of the fact that the petitioner not only was appointed as Deputy
Superintendent of Police, his services had been regularized we are of the opinion that at
this late stage he should not be granted the relief of appointment as Deputy Collector.
Hence, the writ petition is dismissed. There shall be no order as to costs.
***
39
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD WRIT PETITION NO.475 OF 2001
D.D. 14.12.2001
THE HON’BLE MR. JUSTICE: S.R.NAYAK AND
THE HON’BLE MR.JUSTICE: Ch.S.R.K.PRASAD
Andhra Pradesh Public Service Commission ... Petitioner Vs. K.V.Murali Krishna & Ors. ... Respondents Qualification: 1st Respondent who did not have the educational qualification prescribed as per the recruitment rules for the post of Assistant Accounts Officer/Assistant Treasury Officer, secured 649 marks – He was not selection but another candidate who secured 645.25 marks was selected – 1st respondent approached Administrative Tribunal which directed to appoint the 1st respondent – Aggrieved by that A.P. P.S.C. filed Writ Petition – High Court allowed the Writ Petition and quashed the order of the Tribunal. Held:
As direction is issued to P.S.C. as well as the Government P.S.C. has locus standi to assail the correctness of the order of the Tribunal before the High Court. Further held:
Qualification prescribed being degree in Commerce, Economics or Mathematics
the 1st respondent who possesses B.Tech degree is not eligible for the post – Court has no power to hold B.Tech degree held by the respondent as equivalent and more superior to B.Sc. in Mathematics etc. – Appointment of certain unqualified candidates to the posts in the earlier recruitments has no basis to issue mandamus to the Recruiting Agency to commit similar irregularity.
Case referred:
AIR 1966 SC 154 –State of Orissa v. Durga Charan Das
ORDER:
This writ petition is filed by the Andhra Pradesh Public Service Commission, the
petitioner herein, assailing the validity and legality of the order dated 8.12.2000 passed in
40
O.A.No.5511 of 2000 by the Andhra Pradesh Administrative Tribunal allowing the
original application filed by the 1st respondent herein and directing the petitioner herein
and respondents 2 and 3 to appoint the 1st respondent-applicant as Assistant Accounts
Officer/Assistant Treasury Officer (for short, ‘AAO/ATO’) in one of the BC-D vacancies
which remained unfilled, within two weeks from the date of receipt of the order.
The basic facts leading to the filing of this writ petition be noted briefly as under:
The petitioner-Public Service Commission issued advertisement No.5/1998, dated
24.6.1998 calling for applications from the eligible candidates to fill up vacancies in 19
categories of posts including the post of AAO/ATO. The 1st respondent belongs to BC-D
group and he is a holder of B.Tech degree.
In response to the above notification, the 1st respondent applied for all the posts
covered by advertisement No.5/1998 including the pot of AAO/ATO. In the written test
conducted by the petitioner-Public Service Commission, the 1st respondent has secured
649 marks in aggregate whereas one Jithender Reddy, another applicant for the said post
secured 645.25 marks in aggregate. It is stated that the said Jithender Reddy was holding
B.Com. degree at the relevant point of time. Having regard to the educational
qualification possessed by the said Jithender Reddy and having regard to his relative
merit in terms of the total aggregate of marks obtained in the test he was appointed to the
post of AAO/ATO. When the 1st respondent herein came to know about the appointment
of the said Jithender Reddy as ATO, he instituted the present O.A.No.5511 of 2000
before the learned Tribunal praying for the following relief:
“........... to declare that the action of the respondents in not selecting the applicant to one of the post in Group-I Services and especially to the post of Asst. Treasury Officer/Assistant Accounts Officer though a person who secured less marks was selected, as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.” The original application filed by the 1st respondent herein was opposed by the
petitioner-Public Service Commission by filing a counter affidavit. However, the learned
Tribunal placing reliance on the clarification issued by the Government vice letter dated
4.10.1999 and also having regard to the fact that during the recruitment years 1990-1991,
certain candidates possessing B.Tech degree were appointed to the post of ATO and also
41
having regard to the fact that the 1st respondent has secured more marks in the written test
conducted by the petitioner-Public Service Commission than the said Jithender Reddy,
disposed of the application directing the petitioner and respondents 2 and 3 to appoint the
1st respondent as AAO/ATO. Hence this writ petition by the Public Service Commission
assailing the validity of the said order of the learned Tribunal.
Sri. E.Manohar, learned senior counsel appearing for the petitioner-Public Service
Commission would question the tenability of the grounds stated by the learned Tribunal
for allowing the original application file by the 1st respondent. Learned senior counsel
has drawn our attention to the conditions incorporated in Para 2(A)(a) & (d) of the
advertisement No.5/1998 and also the Andhra Pradesh Treasury and Accounts service
Rules notified in G.O.Ms.No.953, General Administration (Rules) Department dated
29.6.1962 particularly the educational qualifications prescribed for category-5 posts,
which include AAO/ATO, and contends that non-consideration of 1st respondent’s case
for appointment for the post of AAO/ATO was justified and was in conformity with the
statutory rules. Learned senior counsel would also contend that simply because during
the recruitment years 1990-1991 certain applicants possessing B.Tech degree were
appointed to the posts of ATO in violation of the rules, only on that count no mandamus
could lie either to the Public Service Commission or to the recruiting agency to repeat the
same irregularity and illegality by appointing the 1st respondent, who admittedly does not
possess the prescribed educational qualification. Learned senior counsel would draw our
attention to the following observation of the learned Tribunal in para 9 of the impugned
order:
“Basing upon the clarification, four persons viz., Hari Prasad, Ram kumar, P.Sunder and Chaitanya Bhargava were earlier appointed as Asst. Treasury Officers/Asst. Accounts Officers though they were possessing B.E. qualification.”
and would contend that this observation is clear indication of non-application of mind on
the part of the learned Tribunal and that when M/s.Hari Prasad, Ramkumar, P.Sunder and
Chaitanya Bhargava were earlier appointed as AAO/ATO though they were possessing
B.E. or B.Tech. degree qualification during the recruitment years 1990-1001, because the
clarification issued by the Government in its letter dated 4.10.1999 was not at all in
42
existence and that when this is the factual position, quite surprisingly, the Tribunal in is
order has stated that on the basis of the clarification issued by the Government, the above
four persons were appointed to the post of AAO/ATO. Learned counsel would also
attack the power of the learned Tribunal to record the finding that since the 1st respondent
is holding an engineering degree, that degree should be considered as the prescribed
qualification or higher than the normal degree and would maintain that it is not within the
domain of the Tribunal or Court to consider whether the two degrees are equivalent or
one is superior to other and it is essentially for the academic bodies or the concerned
State authorities to decide. For all these reasons, learned counsel would conclude that it
is a fit case where the Court should step in and annul the order made by the learned
Tribunal.
On the other hand Sri. M.Surender Rao, with his usual persuasiveness and
tenacity would submit that it cannot be said that the 1st respondent lacks the prescribed
educational qualification. Elaborating the contention, Sri M.Surender Rao would contend
that the 1st respondent in the course of his studies leading to B.Tech degree has studied
mathematics, managerial economics and principles of Accountancy as the subjects in the
I, II & III years of four years course leading to B.Tech degree and therefore, it should be
held that the 1st respondent is also a holder of degree in mathematics within the meaning
of Para 2(A) (a) & (d) of the advertisement No.5/1998 and also the Andhra Pradesh
Treasury and Accounts Service Rules as notified in G.O.Ms.No.953, General
Administration (Rules) Department dated 29.6.1962. Lastly, learned counsel would
contend that the two posts of AAO/ATO earmarked for BC-D remain unfilled for want of
qualified candidates and therefore, looking from that angle also, there is no justification
to disturb the appointment of the 1st respondent. Learned counsel would conclude by
contending that be that as it may, even the recruiting agency has no objection for the
appointment of the 1st respondent to the post of AAO/ATO and there is absolutely no
justification for the petitioner-Public Service Commission to assail the appointment of the
1st respondent in this writ petition. Learned counsel would meekly contend that the
Public Service Commission does not have locus standi to present this writ petition against
43
the order made by the learned Tribunal because it cannot be said to be an aggrieved party
by the impugned order.
Let us dispose of the last contention of the learned counsel for the 1st respondent
first because that goes to the root of the matter. In para 10 of the impugned order, the
Tribunal directed the petitioner-Public Service Commission and respondents 2 and 3 who
are respondents in O.A. to appoint the 1st respondent-applicant as AAO/ATO within the
stipulate timeframe. B virtue of the said order, undoubtedly, the Public Service
Commission is under a legal liability to implement the direction. If the petitioner-Public
Service Commission thinks that the direction issued by the learned Tribunal is irregular
and illegal and cannot be sustained in law, it cannot be said that it has no locus standi to
assail the correctness of the order. We do not think it necessary to further dilute this
aspect. Suffice it to state that under the impugned order, the petitioner-Public Service
Commission is under a legal liability to implement the direction issued by the learned
Tribunal and in view of that legal liability fastened to the Commission, it has locus standi
to question the correctness of the order before this Court.
Advertisement No.5/1998 deals with the posts mentioned in column No.18 which
includes posts of AAO/ATO and para 2(A)(a) & (d) of the said advertisement stipulates
that applicants desirous to apply for the said posts should hold degree in Commerce,
Economics or Mathematics of a recognised university with atleast II class in the subject.
This prescription in the said advertisement is in conformity with the rule rquirement
under Rule 7 of the A.P. Treasury and Accounts Service Rules 1962 as notified in
G.O.Ms.No.953 dated 29-6-1962. Therefore, the applicants applying for the posts of
AAO/ATO should necessarily possess a degree in Commerce or Economics or
Mathematics of a recognised university with atleast II class in the concerned subject. The
question therefore, to be considered is whether the 1st respondent who is appointed to the
post of ATO was possessing, at the relevant point of time, a degree in Commerce or
Economics or Mathematics. The argument of the learned counsel for the 1st respondent is
that the 1st respondent, at the relevant point of time, had passed degree in both
Mathematics and economics. This argument is built-up on the premise that in the course
of studies leading to B.Tech degree, the 1st respondent has had an occasion to study
44
Mathematics as well as Managerial economics and Principles of accountancy. This
contention of the learned counsel for the 1st respondent is not acceptable to the Court. It
cannot be gainsaid that in academics, a degree in a particular subject has a definite
connotation. When the relevant rules speak about the degree in Commerce or degree in
Economics or degree in Mathematics, it means that the applicant applying for the posts
should study the concerned subject as the main subject leading to the award of a degree.
Otherwise, a candidate who has secured a degree in a particular main subject or discipline
could also be considered to be a degree holder in each and every subject, which he
happens to study in the entire course leading to a particular degree. To be specific, we
may give a concrete example. If a candidate after passing intermediate pursues 3 years
degree course in B.Sc. with Mathematics, Physics and Chemistry as part of his
curriculum, he may also study languages, social sciences or some other subsidiary
subjects or minor and then, on the basis of such study, he would not be called to be a
graduate in those subsidiary or minor subjects. It is well known in academic world that
engineering degree is a degree in applied sciences and not a degree in basis sciences.
Undoubtedly, the engineering graduate would study basic sciences like mathematics,
physics and chemistry as part of his curriculum leading to his degree, but the emphasis
would be on the application of the basic sciences. Be that as it may, it is not for the
Tribunal or for the Court to equate the degree of B.Tech held by the 1st respondent as
equivalent or more superior to B.Sc in Mathematics, Physics and Chemistry etc. If the
Tribunal or the Court were to do so, undoubtedly, it would overstep its legitimate power
and usurp the powers of the academic bodies like the universities and academies and
recruiting agencies.
The reasons assigned by the learned Tribunal in granting the relief to the 1st
respondent, in our considered opinion, are perverse and cannot be sustained. Firstly,
there is total lack of application of mind on the part of the learned Tribunal. The Tribunal
has observed that on the basis of the clarification issued by the Government dated 4-10-
1999, four persons viz., M/s Hari Prasad, Ramkumar, P.Sunder and Chaitanya Bhargava
were appointed as AAO/ATO during the recruiting years 1990-91. Alas! By the time
they were appointed, the Government order was not at all in existence. It came to be
45
issued subsequent to their appointments. Be that as it may, even the clarification issued
by the Government is misconstrued by the learned Tribunal and held that the Government
is of the opinion that the graduate degrees in Engineering and Pharmacy etc., are more
than equivalent to graduate degrees in mathematics, science or commerce because they
are professional degrees. The letter of the Government Lr.No.55968/Ser.A/99-1, dated
4.10.1999 reads:
“Government of Andhra Pradesh General Administration (Ser A) Department
Lr.No.55968/Ser.A/99-1 From
The Secretary to Government (Sers) General Administration Department, A.P. Secretariat, Hyderabad.
To
The Secretary, APPSC, Hyderabad.
Hyderabad dt. 4.10.99 Sir,
Sub: P.S. – Recruitment (Direct) – Prescription of Preferential Degrees as alternative qualifications
- Regarding. Ref: 1. GO Ms No.374, G.A. (Ser-A) Dept. dt 28.4.76 2. GO Ms No.471, G.A. (Ser-A) Dept. dt 25.6.79 3. GO Ms No.137, G.A. (Ser-A) Dept dt 18.3.93.
... I am directed to inform that in an earlier occasion, having examined the prescription of professional degree as alternative qualification, Government issued orders in the G.O.s 1st and 2nd cited for specifying any degree of any university in India established of incorporated by or under a Central Act of Provincial ct or State Act or an Institution recognised by the University Grants Commission as the academic qualification for recruitment of post in state services categorised as Group-I service and Group-II services respectively. Similarly in G.O. 3rd cited orders were issued that the B.A.L. Degree awarded to the students of five year B.L. Degree Course in Law be treated as equivalent to a basic degree viz., B.A., B.Sc., and B.Com. and the students, who have completed three years in Law Courses and awarded B.A.L. Degree shall be entitled to appeal for competitive examinations, being conducted by the A.P. Public Service Commission.
46
2. An instance has come to the notice of the Government recently, wherein persons with Graduation in Engineering and Pharmacy have filed O.As in the A.P. Public Service Commission that the graduate degrees in Engineering, Pharmacy are not equivalent to degrees of graduation in Arts, Science and Commerce. The graduate degrees in Engineering and Pharmacy etc., are more than equivalent to graduation but they are professional degrees. This dispute arose because the A.P. Public Service Commission while issuing notification calling for applications from candidates stipulated that one must “Graduate in Arts, Science or Commerce or its equivalent”. In order to avoid such litigation, it has been considered that it is advisable that the service Commission voids the usage of the word “equivalent” and better states in such cases in the notification as “Bachelors Degree in any subject recognised by the State or Central Government or any University in India recognised by the State and Central Government or any University in India recognised by the State and Central Governments” in order to avoid any further litigation. 3. I am therefore, to request you to examine the matter on the above lines and to consider the same in all the Commission’s future notifications.
Yours faithfully, Sd/- xxxx
For secretary to Government (Services) Copy to The General Administration (Ser.F) Department”
True, in para 2 of the above letter dated 4.10.1999, the Government has referred to the
grievance of the persons with graduation in engineering and in that context it has referred
to their claims, whereas quite surprisingly, the Tribunal has observed thus:
“........Engineering degree, which the applicant holds, is equivalent or a higher degree than a normal degree prescribed under the Rules for the post of Assistant Accounts Officer/Assistant Treasury Officer”
The Statement, the graduate degrees in Engineering and Pharmacy etc., are
more than equivalent to graduation occurring in para 2 of the above letter of the
Government in the context is attributable to the graduate engineers, and it cannot be
treated as the opinion of the Government.
Alternatively it needs to be emphasised that simply because during the
recruitment years 1990-91, the Public Service Commission and the recruiting agency
47
appointed certain unqualified candidates to he posts of AAO/ATO, on that basis no
mandamus would lie to the recruiting agency to commit similar irregularity and
appoint Engineering graduates to the post of AAO/ATO the same. In this
connection, it is apposite to note the decisions of the Apex Court in State of Orissa v.
Durga Charan Das, Coromandel Fertilisers Ltd. V. Union of India, Chandigarh
Administration v. Jagjit Singh & Gursharan Singh v. New Delhi Municipal
Committee wherein it was held that if an authority makes an order in violation of a
rule in favour of an ineligible person, that would not justify the claim by another
ineligible person.
The request of the learned counsel for the 1st respondent that the two
vacancies earmarked for BC-D candidates remain unfilled for want of eligible
candidates and in that view of the matter, there is no justification to disturb the
appointment of the 1st respondent to the post of AAO/ATO is also not acceptable to
us. We are in the domain of public employment. Vacant public posts should be
filled up by competent qualified candidates only after issuing necessary notification
calling for applications from the eligible candidates and after going through the
selection procedure prescribed under the recruitment rules and the Court cannot
direct to fill up those posts by ineligible candidates and without due procedure and if
the Court were to do so, it would offend the spirit and letter of Articles 14 and 15 of
the Constitution. If the vacancies meant for BC-D group are still vacant, it is for the
recruiting agency to take appropriate steps to fill up those posts by issuing fresh
advertisement calling for applications from the eligible candidates belonging to BC-
D group and in terms of the recruitment rules.
In the result and for the foregoing reasons, we allow this writ petition and set
aside the order dated 8-12-2000 in O.A.No.5511 of 2000 passed by the learned
Tribunal and dismiss O.A.No.5511 of 2000. No order as to costs.
***
48
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD CONTEMPT CASE NO.1458 OF 2002
D.D. 20.03.2003
THE HON’BLE MR. JUTICE: RAMESH MADHAV BAPAT AND
THE HON’BLE MR.JUTICE CH.S.R.K.PRASAD
G.Suri Babu & Ors. ... Petitioners Vs. Sri. B.Arvind Reddy, Secretary to Govt. & Ors. ... Respondents Selection and Appointment: The petitioners were among the candidates selected for 510 posts of Assistant Executive Engineer and kept in the waiting list – Further vacancies of 176 were sought to be filled up out of the waiting list - The petitioners filed Writ Petition for filling up the vacancies as the Government failed to implement the direction of the Court to fill the vacancies - The petitioners filed Contempt Petition – The Government contended that as most of the projects undertaken by the Government were completed there were no regular vacancies available for appointing the petitioners in the Government Departments – The Court accepted the submission of the Government that the petitioner do not get any right to get themselves appointed in the place of the candidates who are already working in the department and closed the Contempt Petition. Held:
Candidates who apply for recruitment on their selection do not acquire any right to the post. Ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner.
Case referred:
AIR 1991 SC 1613 – Shankarsan Dash v Union of India
ORDER
1) The Andhra Pradesh Public Service Commission (for short “A.P.P.S.C.”)
issued a notification for selection and appointment of 510 posts of Assistant Executive
Engineer in Panchayat Engineering Department vide Advertisement No. 8/95 and it was
49
published. The petitioners were selected and kept in the waiting list. Further vacancies
of 176 were sought to be filled up out of the waiting list candidates by the A.P.P.S.C
pursuant to the requisition sent to the Government.
It is further stated that some unsuccessful candidates filed O.A.No. 8609 of 1998
and O.A.No. 8609 of 1998 and O.A.No.8622 of 1998 questioning the filling up of 176
vacancies before the Andhra Pradesh Administrative Tribunal (for short “Tribunal”). The
said O.As., were allowed by the Tribunal by an order dated 1-4-1999. When the O.A.s.,
were pending before the Tribunal, the Government filed a counter and stating that he
vacancies are to be sanctioned posts. The order passed by the Tribunal was carried in
appeal before this Court by the petitioners by filing W.P.No.10145 of 1999 and W.P.No.
8125 of 1999 & batch. The Division Bench of this Court set aside the order of the
Tribunal. When the respondents herein were not implementing the judgement of this
Court, the petitioners giving six weeks time to the Government to implement the
judgement and giving liberty to the petitioners to file a first contempt case. When the
said order was not implemented, the present contempt case is filed.
It is further stated that when the respondents were seeking to regularize the
illegality of temporary Assistant Executive Engineers numbering about 600, the
petitioners filed an Application No.1474 of 2002 in C.C.No.1458 of 2002 before this
Court was pleased to stay the regularization and also directed the personal appearance of
the respondents by an order dated 16-12-2002.
It is further stated in the contempt case that temporary Assistant Executive
Engineers have filed an application for vacating the stay by impleading themselves in the
contempt case contending that there are 1000 vacancies and the A.P.P.S.C. candidates
can still be appointed. The Government did not file the counter. This Court by an order
dated 2-1-2003 had modified the interim order dated 16-12-2002 directing the
respondents not to fill up 176 posts of Assistant Executive Engineers in favour of the
selected A.P.P.S.C. candidates and give them liberty to the respondents to regularize the
services of the temporary Assistant Executive Engineers in accordance with law.
50
2) The respondents have appeared on 9-1-2003 before this Court and their
presence were dispensed with.
3) In the present contempt case, the respondent have filed their counter stating
that there were no vacancies and that the requisition given to the A.P.P.S.C. is withdrawn
by a memo dated 8-1-2003. The respondents had earlier rejected the request of the
temporary Assistant Executive Engineers for regularization vide. G.O.Rt.No.997 dated
27-07-1996. Though the respondents say that there are no vacancies, they have made
several temporary appointments and one such appointment order dated 26-10-2002 is
filed on record.
It is further stated that there are vacancies available in Panchayat Raj Engineering
Department and there is a clear order of this Court reserving 176 posts in favour of the
petitioners and in the same posts, the petitioners should be appointed and the remaining
posts should be filled up by regularizing the temporary Assistant Executive Engineers.
The sanctioned strength of Panchayat Raj Engineering Department in the category of
Assistant Executive Engineers is 1938. Out of which, the direct recruiters were 1255.
The remaining is all the temporary Assistant Executive Engineers and shall be reverted
back to the original position as and when direct ------------------------------ the petitioners
would not have employment if they are not appointed.
It is further stated by the respondents that about 150 Assistant Executive
Engineers were promoted as Deputy Executive Engineers in Panchayat Raj Department
and the petitioners can be accommodated against the vacancies also.
4) The learned counsel Mr. E. Manohar appearing on behalf of the petitioners
submitted that there was a clear direction by this Court directing the respondents herein to
fill up the vacancies in Panchayat Raj Department by the candidates, who were successful
in the examination conducted by A.P.P.S.C and if the vacancies were not filled up, it
amounts to contempt under the Contempt of Court Act.
51
The learned senior counsel also pointed out that against the order passed by this
Court, the matter was carried in appeal to the Supreme Court by filling SLP. The Hon’ble
Supreme Court dismissed the SLP confirming the order of this Court. Under these
circumstances, learned counsel contends that it is a clear case of contempt and the
respondent shall be dealt with in accordance with the law.
5) While rebutting the aforesaid arguments of the learned counsel for the
petitioners herein, the learned Advocate General appearing on behalf of the Government
submitted that this litigation is a long run litigation when A.P. requisition to the
A.P.P.S.C. to notify certain number of posts for filling up in the Panchayat Raj
Department. It could not be done. Therefore, some posts were filled up by the
Government by withdrawing certain number of posts from the purview of A.P.P.S.C. and
they were sanctioned certain schemes and implemented with the foreign aid especially for
supply of water and therefore it was a time bound programmed and therefore it was
necessary for the government to appoint the posts of Assistant Executive Engineers and
accordingly they were appointed and they have been working in the Department for the
last 8 to 9 years and therefore the Government thought of regularizing their services in
the regular vacancies.
The learned Advocate-General further submitted that after the Supreme Court
dismissed the S.L.P. filed by the Government, the Government reviewed the vacancy
position and came to know that most of the projects undertaken by the Government were
completed. There are no regular vacancies available now for appointing the petitioners in
the Government Departments especially in Panchayat Raj Department and therefore it is
not possible for the Government to fill up those vacancies for those who are successful in
the examination conducted by the A.P.P.S.C.. It was further pointed out by the learned
Advocate-General that simply because the petitioners have passed the examination they
did not get any vested Departments. Therefore, the learned Advocate General submits
that the action of reviewing the vacancy position by the Government and coming to the
conclusion that no vacancies are now available because of lapse of time cannot be
52
challenged and it cannot be said that the respondents’ officials have committed any act of
contempt.
6) The learned counsel Mr. M.Ram Mohan Reddy appearing on behalf of the
candidates, who are already appointed and those who have been working for the last 8 to
9 years, they cannot be reverted and the candidates-petitioners herein, who only pass the
examination conducted by the A.P.P.S.C. do not get any right to get themselves
appointed in the place of the candidate, who are already working in the Panchayath Raj.
The learned counsel further submitted that inclusion of the names of the
candidates in the merit list do not confer any right to get the order of appointment. The
learned counsel Mr. Ram Mohan Reddy relied upon a ruling reported in SHANKARSAN
DASH v UNION OF INDIA in which their Lordships of the Supreme Court in para (7) of
the judgement were pleased to observe as under:
“7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an infeasible right to be appointed which cannot be legitimately denied. Ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana Vs. Subhash Chander Marwaha, (1974) 1 SCR 165: (AIR 191173 SC 2216), Miss Neelima Shangla V State of Haryana, (1986) 4 SCC 268: (AIR 1987 SC 169) or Jitendra Kumar Vs. State of Punjab (1985) 1 SCR 899: (AIR) Considering the fact that the impleaded candidates have already been working for number of years in the posts of Assistant Executive Engineers, their cases have to be first considered by the Government for regularization of their services in the Department.
53
As per the principles laid down by their Lordship of the Supreme Court that simply because the selected candidates passed the examination that itself does not confer any right to get the appointment order and also considering the fact that the Government has reviewed the vacancy position and came to the conclusion that the time bound work, which was undertaken by the Government, was already over and there were no vacancies available now. Under these circumstances, if the respondents do not appoint the petitioners, it cannot be said that the respondents have committed any act of contempt.
Under these circumstances, the Contempt Case is closed. No costs.
***
54
IN THE ANDHRA PRADESH ADMINISTRATIVE TRIBUNAL AT HYDERABAD O.A.NO.7403/2003 & Connected Cases
D.D. 29.01.2004
THE HON’BLE MR. SUDHENDER KULKARNI, MEMBER
Tirupalaiah & Ors. ... Applicants Vs. The Andhra Pradesh Public Service Commission & Anr. ... Respondents
Age Relaxation: Applicants who had become over aged by 2 years for recruitment to the post of Assistant Executive Engineer have sought age relaxation on the ground that the Government had not notified vacancies for recruitment for a period of 7 years. Held: As far as relaxation of age is concerned it is totally prerogative of the Government the Tribunal cannot compel the Government to relax the relevant rule. Applications were dismissed.
JUDGMENT The applicants have filed these O.A.s. complaining the action of the Government
in not conducting the direct recruitment to the posts of Assistant Executive Engineers.
The last recruitment was conducted in the year 1995. After about 8 years, the respondents
have issued the present notification, which stipulates that maximum age, as per the rules,
is 33 years as on 01-07-2003. The applicant in these O.As. have become over-aged by 2
years.
In these O.As., the applicants claim that on, an earlier occasion, the Government
has issued G.O. Ms.No.260, dated 13-07-1998 relaxing the age with regard to Group-I
Services, which were not held for a period of 2 years. The Government, in these cases,
having not notified vacancies for recruitment by the A.P. Public Service Commission, for
a period of 7 years, they are also entitled for issuance of similar ad-hoc rule, which was
issued in G.O. Ms.No.260, dated 13-07-1998.
55
When the matter came for admissions, this Tribunal granted the following interim
orders, on 24-11-2003, 25-11-2003 and 28-11-2003:
“Pending disposal of the O.As., 1st respondent is directed to receive the
applications of the applicant and a further direction to the 2nd respondent to --------
----------------of similar G.O.., in the cases of --------------------------------------------
Assistant Executive Engineers.”
While the matters stood thus, the applicants have filed this M.A. seeking a
direction to the respondents to permit them to participate in the process of selection
which is scheduled to begin on 31-01-2004 onwards.
The A.P. Public Service Commission has filed a counter affidavit and sought for
vacation of interim orders.
The respondents contend that immediately after receipt of the interim directions
granted by this Tribunal, they have addressed the Government with regard to the question
of maximum age. The Government, by its letter dated 08-01-2004, has informed the A.P.
Public Service Commission that:
“I am directed to invite attention to the letter cited and to inform that the Upper-Age for Direct Recruitment is 33 years, except recruitment to uniform services, and further age concession was allowed by 5 years to the candidates belonging to Scheduled Castes/Scheduled Tribes and Backward Classes. For the in-service candidates irrespective of the Community, they belong, age concession of 5 years is allowed. For the Physically challenged candidates 10 years age concessions is allowed.
The age concession given in G.O. Ms.No.260, General Administration (Ser.A) Department, dated 13-07-1998 and other G.Os., is a one time measure. The request that upper age concession over and above, the maximum age should be given based on the number of years over which recruitment is held is not based on their late thirties or early forties will defeat the purpose of direct recruitment as direct recruitment envisages infusion of young blood into services.”
56
Therefore, the respondents contend that the Government has negative request of
the applicants for issuance of a similar ad-hoc rule which was given in 1998. The
applicants are not qualified in accordance with General Rule 12. In-fact, the applicants
must be within the age as on the date of notification i.e., on 01-07-2003, for the relevant
year. The applicants have become over-aged and consideration of their cases will be
illegal.
The learned counsel for the applicants, on the contrary submits that there is a
decision of the Rajasthan High Court, reported in 1992 (8) SLR 585, in the matter of
Parmanand Sharma V. Rajasthan Public Service Commission. As per the said decision,
when the recruitment was not held for a certain period, and the vacancies, which arose,
should be filled up, in accordance with the rules. This Tribunal has perused the
judgement and that judgement is not applicable to the facts of these cases, as it pertains to
a Physically Handicapped candidate, who was enjoying the benefit as in service as well
as Physically Handicapped candidate. As far as the relaxation of age is concerned, it is
totally prerogative of the Government. Now that the Government has taken a decision
stating that earlier G.O. Ms.No.260, dt. 13-07-1998 was issued as a one-time measure,
and they do not want to grant and such relaxation for further more. Further, the
respondents also contend that, with a view to infuse young blood into service, they are
not inclined to relax the upper age limit. This Tribunal cannot compel the respondent –
Government to relax the rule as it is totally the domain of the Government to frame or
relax rules of recruitment.
In view of this, there is no merit in these O.As. and the O.As. are accordingly
dismissed and the VMA also sand disposed of. In view of disposal of the main O.As.,
M.As. stand disposed of.
***
57
(2005) 7 Supreme Court Cases 177 Civil Appeal No.5335 of 2005
D.D. 30.8.2005
BEFORE HON’BLE H.K.SEMA AND B.N.SRIKRISHNA, JJ.
A.P.Public Service Commission ... Appellant Vs. Koneti Venkateswarulu & Ors. ... Respondents
Appointment: Cancellation of appointment for suppression of material information: Service Law – Appointment – Cancellation/Refusal of appointment –
Cancellation – Suppression of material information – Fact that respondent candidate was
already employed and working as teacher not disclosed by keeping the relevant column
11 of application form pertaining to previous employment blank and a declaration given
in Annexure III that he was not working elsewhere and that information furnished by him
was true and correct and that his candidature shall be cancelled at any stage if the same
was found in correct – Respondent selected for the post of Women and Child Welfare
Officer but before he could be notified about the result, appellant Commission having
come to know about said suppression of information by respondent issued a notice to
show cause why his candidature should not be cancelled – Respondent explained that he
inadertently filled up and signed Annexure III which was intended only for candidates
seeking fee exemption for unemployed youth in the age group of 18-35 years and was not
applicable to him – Finding the explanation not satisfactory and taking the view that
respondent deliberately indulged in suppression of relevant information, appellant, held,
cancelled the candidature of respondent rightly – It was not for the respondent candidate
to decide which information was relevant and required to be furnished and which one
need not be furnished – Person who indulges in suppressio veri and suggestio falsi does
not deserve public employment.
Case Referred:
(2003) 3 SCC 437 : 2003 SCC (L&S) 306, Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav
***
58
ARUNACHAL PRADESH PUBLIC SERVICE COMMISSION
59
IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM:NAGALAND:MEGHALAYA:
MANIPUR:TRIPURA:MIZORAM AND ARUNACHAL PRADESH) ITANAGAR BENCH
W.P.(C) No.34(AP) OF 2002 D.D. 5.2.2002
The Hon’ble Mr. Justice P.G.Agarwal Sri Lishi Lal ... Petitioner Vs. The State of Arunachal Pradesh ... Respondent Recruitment : Cutoff marks for being called for viva-voce depending on number of candidates and vacancies whether valid? – Yes Petitioners participated in the selection process for the post of Assistant Engineer (Civil) and appeared for personality test but not called for viva-voce as he did not qualify in the written test - P.S.C. contended that the cutoff marks depending /on the number of candidates and vacancies fixed – High Court in view of the decision in 1987 (Supp) SCC 401 held that the petitioner having failed in the written examination cannot claim to be called for viva-voce test. Cases referred: 1987 (Supp) SCC 401 – State of U.P. vs. Rafiquddin & Ors.
ORDER
1. Heard Mr.C.Baruah, learned counsel for the petitioner and Mr.T.Pertin, learned
counsel for the Arunachal Pradesh Public Service Commission and also the learned
Govt.Advocate.
2. The petitioner Sri Lishi Lel had participated in the selection process for the post
of Assistant Engineer (Civil) conducted by the Arunachal Pradesh Public Service
Commission, for short, the commission as per the advertisement issued, both written test
and Viva-Voce test were to be conducted after final selection. Petitioner appeared in the
written test but as he did not qualify he was not called for the viva voce test. Petitioner
has therefore filed the present application for a direction to the respondent Commission to
allow him to appear in the viva voce test.
60
3. The plea raised by the petitioner is that the final selection is to be made on the
basis of written examination and Viva-Voce test and as no qualifying marks were laid
down and communicated to the petitioner, the petitioner cannot be thrown out from the
purview of selection on the basis of the written test only.
4. The respondent Commission has filed an affidavit in-opposition stating interalia
that this being the competitive examination for filling up 15 posts of Assistant Engineer
(Civil), the total number of candidates selected for viva voce was 48. It was further
averred as follows:
“ The Commission adopts a cut-off marks confidentially depending on the number of candidates and vacancies and the ratio to be maintained. It is unjustified to expect the Commission to call the entire candidates who has appeared in the written test for the Viva-Voce”.
5. So far the plea of the petitioner for laying down any qualifying marks or for
informing the candidates about such marks was considered by the Apex Court in the case
of State of U.P. vs. Rafiquddin and others, reported in 1987(Supp)SCC 401 and the Apex
Court observed:
“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 prescribed 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 --------------------- ----------- the select most suitable candidates for appointment to public services. A person may obtain sufficient highly marks and yet he may not be selected
61
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”
6. In view of the said proposition of law, the petitioner having failed in the written
examination, the Commission may not call him in the viva voce test and he is not entitled
to any relief in this writ petition. The writ petition is accordingly dismissed. Costs easy.
***
62
IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM NAGALAND MEGHALAYA MANIPUR TRIPURA
MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BRANCH)
W.P.(C) No.330 (AP)/2003 & connected cases D.D. 27.4.2004
The Hon’ble Mr. Justice B.Lamare Smt. Mhalo ali & Ors. ... Petitioners Vs. The State of Arunachal Pradesh & Ors. ... Respondents Recruitment : Revision of select list: Recruitment to the post Arunachal Pradesh Civil Services Group A & B – Petitioners were included in the select list of 98 candidates published on 26.6.2003 – In view of O.M. dated 10.10.2000 providing recruitment to vacancies as per 80:20 ratio of reservation policy of the Government the select list was published as per notification dated 5.11.2003 – Petitioners were excluded from the revised select list – High Court in view of the decision in Ashok Kumar Yadav Vs. State of Arunachal Pradesh & Ors. held that the O.M. dated 10.10.2000 pursuant which the select list was revised was not applicable – Consequently quashed the revised select list dated 5.11.2003 and directed to issue appointment orders to petitioners as per the result published on 26.6.2003. Cases referred: 1. (2002) 3 GLR 412 – Ashok Kumar Yadav vs. State of Arunachal Pradesh & Ors. 2. 2002 (1) GLT 223 – State of Arunachal Pradesh Vs. Ashok Kumar Yadav & Ors.
ORDER
1. Heard Mr. R Deka, learned counsel for the petitioners in WP(C)363 (AP)2003,
Mr. K.Ete, learned counsel for the petitioner in WP(C) 360 (AP)2003 and Mr.
J.K.Pangjeng, learned counsel for the petitioners in WP(C) 367 (AP) 2003 and
Mr.J.Hussain, learned Counsel for the petitioners in W.P.(C) 81 (AP) 2004. Also heard
Mr. BL Singh, learned Sr. Govt Advocate for the State respondents and Mr. T Pertin,
learned counsel for the Arunachal Pradesh Public Service Commission.
2. These 4 (four) writ petitions are taken up together as they relates to the same
selection and the same questions of law and facts are involved.
63
3. Briefly stated the fact in that the Arunachal Pradesh Public Service Commission,
for short APPSC issued an advertisement No. PSC-R/31-2000 dt 8/6/2001 inviting
applications for recruitment of 63 posts of the following Grade – A and B posts in the
State Government:-
(A) Arunachal Pradesh Civil Services (Entry Grade) 27 posts
(B) Finance and Accounts Officer /Treasury Officer 6 posts
(C) Dist Information and Public Relations Officer 3 posts
(D) Assistant Registrar of Cooperative Society 4 posts
(E) Dist Supply Officer 4 posts
(F) Dist Arts and Culture Officer 6 Posts
(G) Child Development Project Officer 6 Posts
(H) Assistant Director (Textile & Handicraft)_ 1 Post
(I) Assistant Director (Industries) 4 Posts
(J) Assistant Employment Officer 2 Posts
4. In the advertisement, it is prescribed that 80% of the posts will be reserved for
APST Candidates and the rest 20% will be unreserved (open competition) for 63 numbers
of posts. The number of posts was subsequently increased to 98.
5. The petitioners having required qualification applied for the posts and after
completions of both the written examination and the viva voce/interview the APPSC
published the list of selected candidates for all the 90 posts.
6. The name of the petitioners in WP (C) 363 (AP) 2003 appeared at Sl.No.
40, 43, 45, 75 and 88. The petitioner No.1 in WPC (C) 363 (AP) 2003 was selected for
the post of Child development Project officer and was placed at Sl.No. 1 of the list for
CDPO. The petitioner No. 2 was selected for the post of Assistant Director of Industries
and her name was shown at Sl.No.1 for the post of Assistant Director of Industries. The
petitioner No. 3 was selected for the post of Entry Grade and his name appeared at Sl.No
39 of the list for Entry Grade. The petitioner No.4 was selected for the post of Finance &
Accountant Officer /Treasury Officer and his name appeared at Sl.No. 2 for this post. The
64
petitioner No.5 was selected for the post of District Information and Public Relation
Officer and her name appeared at Sl.No.4 for the post of D.I. P.R.O.
7. The petitioner in WP(C) 330 (AP) 2003 were selected and their names were
shown at Sl.No. 51, 53, 65, 68 and 94 of the select list. The petitioner No.1 was selected
for the post of Child Development Project Officer and her name appeared at Sl.No. 10 of
the list for this post. The petitioner No. 2 was selected for the post of District supply
officer and her name appeared at Sl.4 of the list for this post. The petitioner No. 3 was
selected for the post of Circle Officer and his name appeared at Sl No. 40 of the list of
Entry Grade. The petitioner No.4 was selected for the post of Circle Officer and also the
petitioner No. 5 was selected for the post of Entry Grade. And their name appeared at Sl
No.53 and 56 of the list of Circle Officer.
8. The petitioner in WP(C) 367 (AP) 2003 was shown at Sl.No.49 of the select list
and he was selected for the post of Entry Grade and his name appeared at Sl.No.43 in the
list for this post.
9. The petitioners in WP(C) 81 (AP) 2004 were selected and their names were
shown at Sl.No. 38 and 42 of the select list. The petitioners No.1 was selected for the
post of Entry Grade and his name appeared at Sl.No. 36 of the list for this post. The
petitioner No.2 was selected for the post of Assistant Registrar of Coop Society and her
name appeared at Sl.No. 1 of the list for this post.
10. Before any appointment could be made to the posts as per selection and
recommendation by the APPSC some of the unsuccessful candidates approached this
court in WP(C) No.125 (AP)2003 along with that writ petition a Misc case No. 708/2003
was also filed and this court by an interim order dated 30/5/2003 granted interim order
and no appointment could be made from the select list. However an application for
modification alteration or vacation of the interim order was made by the State
respondents in Misc Case No. 159(AP) 2003and this court by order dated 16-09-2003
vacated the interim order passed by this Court. While vacating the interim order, this
65
Court also had directed that all appointments made on the basis of the selection would,
however abide by final orders that would be passed in the writ petition.
11. After the interim order was vacated by this Court, the APPSC published the
revised result Notification dt: 5-11-2003. The ground for publishing of the revised result
is that at the time of publication of the result on 26-6-2003 the office memorandum No.
OM-2/2000 dt 10-10-2000 providing allotment of vacancies as per 80:20 ratio of the
reservation policy of the Government was not taken into consideration by the APPSC. By
the said revised result Notification the petitioner who were non APST Candidates were
excluded from the list of successful candidates. However 2(two) non-APST candidates
were adjusted against the unreserved vacancies at 55 and 60 roster point. All the writ
petitioners in these writ petitions have, therefore assailed the said revised Notification dt
5/11/2003 published by the APPSC.
12. The case of the petitioners are that according to the result Notification dt 26-6-
2003 98 candidates were shown to have been successful for the posts as per the
advertisement issued by the APPSC. The names of the petitioners were also shown in the
said result Notification. The selection made by the APPSC was based on the roster
system of 100 point roster system as per the Notification No. OM-38/76 (Vol-III) pt-1 dt
4-5-2001. The purpose for introducing this 100 point roster system in to fulfill the claims
of the members of the SC and ST of the state for their adequate representation in the
administration of t he State. The selection made by the APPSC was also based on this
basis. It is also the case of the petitioners that the revised result Notification dt 5-11-2003
by canceling the earlier result Notification dt 26-6-2003 is totally wrong and against the
100 point roster system as per the Notification dt 4-5-2001. According to the petitioner
the Office memorandum dt 10-10-2000 is not applicable in the instant case. The
petitioner also contended that by revising the select list of 26-6-2003 the APPSC has
selected only 34 candidates leaving aside other successful candidates including the
petitioners. This was done with an ulterior motive to fill up the remaining vacancies by
depriving the petitioners of unreserved quota meant for non AP ST candidates. The
petitioners contention is also that the original result notification clearly indicates that
66
selection was made for 98 posts but the said result notification was cancelled and a
revised result notification was issued which is totally illegal and against the reservation
policy of the Govt as indicated in the advertisement.
13. The respondents in their affidavit in opposition resisted the claim of the
petitioners and stated that the petitioners have attempted to misinterpret the meaning of
20% unreserved quota. According to the respondents 20% of unreserved posts are meant
for selection on the basis of merits of the competitive examination where all categories of
candidates including the candidates belonging to APST are eligible to compete in the
examination. This is clear from the office Memorandum dt: 10.10.2002. The respondents
also contended that the 100 point roster appended with the reservation policy of the State
contained in Office Memorandum dt : 4.5.2001 is to identify the vacancy position in
respect of the posts, both in reserved and unreserved point of the roster maintained by the
department. The claim of the petitioners that unreserved point as mentioned in the roster
should be strictly followed by the APPSC in determining the merit position is absolutely
wrong. The APPSC is to maintain the actual merit point obtained by each candidate
separately as mentioned in the Office Memorandum dt 10-10-2000.therefore according to
the respondents the merit position is to be maintained as per the performance of each and
every candidate in the preliminary main and viva-voce test conducted by the APPSC.
Since the petitioners could not secure higher position in the merit list in the said
examination therefore, their case could not be considered by relaxed standard as is done
in the case of reserved category. Moreover the Office memorandum dt 10-10-2000 was
based on the Govt of India Office Memorandum dt 22-5-1989.
14. The respondents also contended in their affidavit in opposition that as the APST
candidates were not adequately represented in the service of the State, therefore 80% of
the posts were reserved for APST candidates vide Notification dt 4-5-2001 and this
reservation policy was specified in the advertisement dt 8-6-2001.
15. In order to appreciate the case in hand the revised result Notification is
reproduced below:-
67
ARUNACHAL PRADESH Public Service Commission
ITANAGAR No.PSC-R/31/2000 (Vol.III) Dated Itanagar, the 5th November, 2003.
REVISED RESULT NOTIFIACATION In view of the personnel Dept’s letter No. PERS-14 /2003/782 dt 22nd
October 2003 the commission reviewed the select list of candidates who have been declared successful and recommended for appointment to Arunachal Pradesh Civil Services (EG)and other Arunachal Pradesh General Services vide this commission’s Notification No. PSC-R/31/2000 (vol. III) dt 26th June 2003.
After thorough examination and interpretation of the Governments office Memorandum No. OM-12/2000 dt 10th October 2000 regarding allotment of vacancies as per 80:20 ratio reservation policy of the Government the Commission has revised and amended the Select list of the Candidates for appointment.
The two non APST candidates namely, Pranjal Bora and Vishwadeep
Chello have been adjusted against unreserved vacancy at 55 and 60 roster point.
A separate list of selected candidates with the order at their
choice/preference of posts will be available with the Govt. The earlier result of the APPSCCE as notified vide No. PSC-R/31/2000 (Vol.III) dt 26th June 2003 stands vacated. The list is in order of merit.“
16. From the above Notification it is seen that the APPSC has revised the result
Notification dt 26-6-2003 on the basis of the Office Memorandum dt 10-10-2000. In the
Office Memorandum dt 10-10-2000 the Govt of India Office Memorandum No.
36012/13/88 Estt(SCT)dt 22-5-89 was reproduced an the departments were directed to
follow the said Govt. of India’s Office Memorandum. By this office Memorandum, 50%
of the posts in Group A are to be treated as reserved and 50% as unreserved 20% of the
posts in Group B and C are category posts. The illustration shows in Group A posts are as
follows :-
68
ILLUSTRATION
Points in the Roster
Whether reserved or Unreserved
3 4
1 Reserved 2 Unreserved 3 Reserved 4 Unreserved 5 Reserved 6 Unreserved 7 Reserved 8 Unreserved 9 Reserved 10 Unreserved
The illustration for Group B & C posts are as follows :-
Points in the Roster
Whether reserved or unreserved
3 4
1 Reserved
2 Reserved
3 Reserved
4 Reserved
5 Unreserved
6 Reserved
7 Reserved
8 Reserved
9 Reserved
10 Unreserved
If the illustration as shown above for Group A posts is to be taken as per the
reservation policy after each reserved post there is unreserved post next. So also for
Group – B and C Posts after every 4 reserved posts 1 post is unreserved. Therefore, there
will be more unreserved posts in Group – A posts. However, this court in the Case of Shri
Ashok Kr. Yadav petitioner vrs State of Arunachal Pradesh and ors reported in (2002) 3
69
GLR 412 by judgment and order dt 8-2-2002 has held that the Govt of India’s office
Memorandum dt 22-5-89 which was reproduced in the office Memorandum dt 10-10-
2002 is not applicable in that case. The said judgment and order of the learned single
judge was also upheld by a Division Bench of this court in State of Arunachal Pradesh.
Appellant vrs Ashok Kr.Yadav & ors. Respondents reported in 2002 (1) GLT 223. in the
instant case also the said office Memorandum is not applicable in respect of reservation
policy of the State.
17. The Government policy which is applicable in the instant case in respect to
Group- A post in the Notification Dt: 6-5-2001 and the policy of reservation for Group B
posts is the Notification No.OM-13/90 dt :26-3-91 which was upheld by the division
bench of this court in the case of State of Arunachal Pradesh vrs Ashok Kr. Yadav & Ors
(Supra). The Notification dt 4-5-2001 in respect of Group A posts and the Notification dt
26-3-1991 in respect of Group B posts are on the same basis of 100 points Model Roster
of direct recruitment for the posts in Group-A and Group – B posts respectively. In both
the Notification dt 4-5-2001 for Group A posts and Notification dt: 26-3-91 for Group B
posts, the Model 100 points Roster is as follows:-
A MODEL 100 POINT ROSTER FOR GROUP ‘A’ POSTS IN WHICH
ARE TO BE FILLED UP BY DIRECT RECRUITMENT Point in the Roster
Whether Reserved or Unreserved
Point in the Roster
Whether Reserved or Unreserved
1 Reserved 51 Reserved 2 Reserved 52 Reserved 3 Reserved 53 Reserved 4 Reserved 54 Reserved 5 Unreserved 55 Unreserved 6 Reserved 56 Reserved 7 Reserved 57 Reserved 8 Reserved 58 Reserved 9 Reserved 59 Reserved
10 Unreserved 60 Unreserved 11 Reserved 61 Reserved 12 Reserved 62 Reserved 13 Reserved 63 Reserved 14 Reserved 64 Reserved
70
15 Unreserved 65 Reserved 16 Reserved 66 Reserved 17 Reserved 67 Reserved 18 Reserved 68 Reserved 19 Reserved 69 Reserved 20 Unreserved 70 Unreserved 21 Reserved 71 Reserved 22 Reserved 72 Reserved 23 Reserved 73 Reserved 24 Reserved 74 Reserved 25 Unreserved 75 Unreserved 26 Reserved 76 Reserved 27 Reserved 77 Reserved 28 Reserved 78 Reserved 29 Reserved 79 Reserved 30 Unreserved 80 Unreserved 31 Reserved 81 Reserved 32 Reserved 82 Reserved 33 Reserved 83 Reserved 34 Reserved 84 Reserved 35 Reserved 85 Reserved 36 Reserved 86 Reserved 37 Reserved 87 Reserved 38 Reserved 88 Reserved 39 Reserved 89 Reserved 40 Unreserved 90 Unreserved 41 Reserved 91 Reserved 42 Reserved 92 Reserved 43 Reserved 93 Reserved 44 Reserved 94 Reserved 45 Reserved 95 Reserved 46 Reserved 96 Reserved 47 Reserved 97 Reserved 48 Reserved 98 Reserved 49 Reserved 99 Reserved 50 Unreserved 100 Unreserved
18. In view of the above reservation policy made by the Government in respect of
Group A And Group B points the revised result Notification dt 5-11-2003 by which the
result was revised on the basis of the office Memorandum dt 10-10-2000 was wrongly
made as the Office Memorandum dt 10-10-2000 is not applicable in the instant case.
71
19. For the aforesaid reasons the revised result Notification dt 5-11-2003 is hereby set
aside and quashed.
The respondents are directed to issue appointment letters to the petitioners to their
respective posts to which they were selected as per the result Notification dt 26.6.2003.
If any appointment is made on the basis of the revised Notification dated 5-11-2003,such
appointments shall be cancelled as per the order passed by this court on 16-9-2003 in
Misc Case No. 159 A (AP)/2003 arising out of W.P.(C) No.125 (AP)2003. The
appointments to the petitioner shall be made within a period of 1 (one) month from the
date of receipt of this order by the respondents No. 1 and 2, the chief Secretary to the
Govt. of Arunachal Pradesh and the Secretary (Personnel) Department of Personnel
Govt. of Arunachal Pradesh, Itanagar.
These writ petitions are accordingly disposed of. However considering the facts
and circumstances of the case, I pass no order as to the costs.
***
72
THE GAUHATI HIGH COURT ITANAGAR PERMANENT BENCH
NAHARLAGUN W.P.(C) 200(AP) 2003
D.D. 17.5.2005 The Hon’ble Mr. Justice Ranjan Gogoi
Smt.O.Gyati & Anr. ... Petitioners Vs. State of A.P. & Ors. ... Respondents Recruitment to Arunachal Pradesh Civil Services Group A & B Posts: 5% reservation under sports quota:
Writ petitioners who were participated in the selection process held pursuant to advertisement dated 8.6.2001 were not selected – Challenged claiming that they ought to have been selected under 5% sports quota in terms of O.M. dated 14.5.2001 – High Court in view of the submission made on behalf of the State that in accordance with the policy in force 5% of vacancies in all departments are required to be held back for being filled up under sports quota from the normal recruitment procedure and that 5% of reservation vacancies were excluded from the present recruitment also dismissed the writ petition.
ORDER
Heard Mr.N.Grayu, learned counsel for the petitioners and Mr.C.K.Sarma Baruah,
learned Advocate General, Arunachal Pradesh, appearing on behalf of the official
respondents. Also heard Mrs.T.Pertin, learned counsel appearing for the respondent
No.3.1.c.A.P.P.S.C.
The writ petitioners participated in the selection held pursuant to an advertisement
dated 8.6.2001, issued, for filing up of vacant posts in the Arunachal Pradesh Civil
Service Group-I & II. They were not successful in the preliminary examination held and,
therefore, could not take part in the subsequent segments of the selection process.
Thereafter, they have instituted the present writ application calling into question the
selection procedure as well as the list of the successful candidates prepared by the Public
Service Commission on the ground that the advertisement issued did not provide for any
reservation for sports person, though, in terms of the Government policy in force, 5% of
the vacancies should have been earmarked for being filled up by meritorious sports
persons, Reliance in this regard has been placed on an office Memorandum dated
73
14.5.2001 which, the writ petitioners contend, provide for reservation of 5% of the
vacancies in favour of meritorious sports persons.
I have read and considered the terms of the office Memorandum dated 14.5.2001
and an examination of the said office Memorandum makes it clear that 5% of the
vacancies in group-B, C and D posts (in the present case the Court is concerned with only
Group-B posts) against direct recruitment quota is earmarked for being filled up from
meritorious sports persons. The office Memorandum dated 14.5.2001 further visualizes
that the aforesaid 5% quota is to be filled up by the appointing authorities/Head of the
Department from meritorious sports persons belonging to APST in relaxation of the
normal recruitment procedure applicable to such posts. Not only does the office
Memorandum dated 14th of May 2001 so indicated, what has been mentioned in the
affidavit filed by the State respondent is that, in accordance with the policy in force, 5%
of the vacancies in all Ministries/Departments are required to be held back, for being
filled up by meritorious sports persons, from the normal recruitment procedure. It is
further stated that in the present selection process 5% of the vacancies were excluded
from the purview of the competitive examination held by the Public Service Commission,
The learned Advocate General for the State has made a further statement that if any
vacancy against the 5% quota for sports persons is available as on date, the petitioners,
notwithstanding their lack of success in the competitive examination, may apply for the
said posts.
In view of the what has been noticed above and particularly the terms of the
policy and the statement made in the affidavit filed by the respondents to the effect that
the quota reserved for meritorious sports persons was excluded from the purview of the
competitive examinations held by the Public Service Commission, this Court is unable to
recognize any infirmity in the selection held or the select list prepared on the basis of the
contions advanced in the present writ petition. Consequently, the writ petition is without
any merit and is accordingly dismissed. However, having regard to the facts and
circumstances of the case, there shall be no order as to costs.
***
74
IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM ,NAGALAND,
MEGHALAYA,MANIPUR,TRIPURA,MIZORAM AND ARUNACHAL PRADESH) W.P. (C) NO- 195 (AP) OF 2003
D.D.18.5.2005 The Hon’ble Mr. Justice Ranjan Gogoi
Shri Rinchin Leta ... Petitioner Vs. The State of Arnachal Pradesh & Ors. ... Respondents
Reservation for Physically Handicapped: In the recruitment for Arunachal Pradesh Civil Services Group A & B as per advertisement dated 8.6.2001 no reservation for P.H. made – Petitioner a physically handicapped candidate with loco motor disability challenged non reservation for P.H.- As per interim order dated 27.6.2003 the High Court directed to keep one post vacant for persons with loco motor disability – In view of the stand taken by both State and P.S.C. that reservation should have been made for P.H. as per Persons with Disabilities Act the High Court disposed of the writ petition with a direction to pass necessary order for appointment of most meritorious of the candidates against the post that has been directed to be kept vacant as per order dated 27.6.2003.
ORDER
The writ petitioner, who is a physically handicapped person, complains of an
alleged violation of his right to receive fair consideration for appointment to the
Arunachal Pradesh Civil Service, Specifically, the aforesaid grievance has been raised on
the ground that in the advertisement issued for filling up vacant in the Arunachal Pradesh
Civil Service (Group A & B) pursuant to which selection have been made, reservations as
required to be provided under the provisions of Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995, (hereinafter
referred to as the Act) have not been made and consequently the right of the petitioner to
be considered against the posts which were required to be kept reserved under the
provisions of the Act have been infringed.
2. By an advertisement dated 8.6.2001, application were invited for filling up as
many as 63 vacant posts in the Arunachal Pradesh Civil Service (Group – A& B). It is not
disputed at the Bar that after the advertisement was so issued on 8.6.2001, 7 posts were
75
taken out of the purview of the selection process and subsequently a total of 43 other
posts were requisitioned by the State to be filled up on the basis of the selection initiated
by the Public Service Commission. In this manner, a total of 100 posts in the Arunachal
Pradesh Civil Service (Group- A & B) were covered by the recruitment process initiated
by the Public Service Commission though it appears that two of the aforesaid posts in the
cadre of Assistant Director, Textiles, were subsequently kept outside the purview of
selection under court’s orders, The petitioner submitted his application pursuant to the
advertisement issued and qualified in the preliminary as well as the main written
examination held. Having qualified in the main written examination, he was called for the
viva voce test, wherein he participated However, in the select list prepared by the Public
Service Commission, the name of the petitioner did not figure. Consequently, the present
writ petition has been filed contending that a minimum of 1% of the available posts
should have reserved for physically handicapped candidate of the category to which the
petitioner belongs, i.e, Orthopaedically handicapped persons having loco motor
disability/cerebral palsy, as required under the provisions of the Act in force. On the
above basis, a case has been sought to be built up by the petitioner that had the
reservation as required by the provisions of the Act been made, the petitioner would have
been considered against the specific reserved category of candidate of physically
handicapped, in which event the petitioner claims he would have been selected and
consequently appointed on the basis of inter se merit of the physically handicapped
candidates.
3. Having noticed the parameters of the challenge made in the writ petition, this
Court may now proceed to understand the projections made by the State and the Public
Service Commission before this Court in the affidavits filed. The State had not denied
and disputed that reservation under the provisions of the Act are required to be made and
in fact has enclosed two circulars dated 20.2.2000 and 23.5.2000 (Annexure-B and C to
the counter affidavit of the State), which circulars have been issued by the competent
authority of the State requiring the appointing authorities to adhere to the reservation
provided by the provisions of the Act. In fact, the stand taken by the State Government in
the affidavit filed is that reservation, as required under the provisions of the Act. Have
76
directed by the State to be made available in all deserving cases in accordance with the
principles laid down in different memorandums issued by the Government of India in this
regard. The instant advertisement was issued by the Public Service Commission on the
basis of requisition/requisitions placed by the State and it was, therefore, the duty of the
Public Service Commission to stipulate the availability of reservations in accordance with
the provisions of the Act and proceed to make its recommendation for appointment on the
basis.
4. The Public Service Commission, in the affidavit filed, has again not denied and
disputed the applicability of the provisions of the Act with regard to reservations for
different categories of physically handicapped persons. The stand taken in that in the
Service rules in force, there is no specific provision for reservation to physically
challenged persons and the State also had not intimated the necessity of making.
Reservations for physically handicapped persons in the requisition placed before the
Public Service Commission. Accordingly, the Public Service Commission had proceeded
in the matter without making any provision for reservation to physically handicapped
persons.
5. The stand taken by the State Government and the Public Service Commission, as
noticed above, therefore, is not in variance with the pleadings of the writ petitioner and
the oral arguments advanced. In fact, the writ petitioner as well as the State Government
and the Public Service Commission have virtually proceeded in the instant matter by
agreeing before the Court that reservation of vacancies in the Civil Service as per the
provisions of the Act is required to be made and the same had, in fact, not been provided
in the recruitment initiated by the Public Service Commission pursuant to the
advertisement dated 8.6.2001.
6. Having noticed the respective stand of the parties before the Court, this Court may
now briefly note what has been provided by the Act. The provisions relevant to the
instant case are contained in Chapter-vi of the Act. Section 32 enjoins upon the
appropriate government a duty to identify posts in the establishments which can be
77
reserved for persons with disability and to review the same periodically at intervals not
exceeding 3 years. Under Section 33 of the Act, a minimum of 3% reservation is
required to be made for physically challenged persons belonging to the following 3
categories’
(i) Blindness or low vision’
(ii) Hearing impairment; (iii) Loco motor disability or cerebral palsy.
The break up of reservations that has to be provided is a minimum of 1% for each
category. The proviso to Section 33 of the Act, however, empowers the appropriate
government to exempt any establishment from the provisions of Section 33, if the
appropriate government is satisfied that having regard to the nature of work involved in
such establishment such exemption is necessary or required. It will also be appropriate at
this stage to put on record that the Government of India by Office memorandum bearing
No 36035/9/98 Estt (res) dt. 04-06-1998 has laid down the minimum degree of disability
that a person must suffer from for being eligible for getting employment against a post
earmarked/reserved for a physically handicapped person.
7. The petitioner belongs to the category of Orthopeadically handicapped person and
has been certified by the Board of Doctors constituted by the Social Welfare Dept, to be
suffering from Orthopaedic Disability to the extent of 50% He, therefore claims to be a
victim of loco motor disability. Under the provisions of the Act and the various circulars
issued by the Central Government as well as the State Government to give effect to the
provisions of the Act, reservation of vacancies in the State civil Services to the extent of
1% is required to be made for persons suffering from locomotor disability. Keeping in
mind the total number of vacancies involved in the selection process undertaken by the
Public Service Commission, the percentage prescribed worked out in figures, will be one
post. This court may therefore, proceed on the basis that in the recruitment initiated and
undertaken by the State Public Service Commission for filling up vacant posts in the
State Civil Service (Groups A & B), one post was required to be kept reserved for
physically challenged persons of the particular category, i,e, those suffering from
locomotor disability. All physically challenged persons, belonging to the said category,
78
who may have applied pursuant to the advertisement issued and had taken part in the
selection, in the event all or any of them have not been included in the select list prepared
are required to be considered against the said reserved post on the basis of their inter se
merit within the particular group of physically handicapped persons and thereafter the
recommendations of the Public Service Commission were required to be made by
categorizing such physically handicapped persons as a separate group. The same has not
been done in the present case and, therefore this Court can reasonably construe the failure
of the respondents to so act to be in derogation of the rights of the petitioner under the
provisions of the Act, which may have impaired the petitioner’s right to fair consideration
of his case. Though a claim has been made on behalf of the petitioner, at the hearing, that
he is the only candidate will loco motor disability, who has been selected by the Public
Service Commission, the Court would certainly not like to proceed on the basis of
aforesaid statement Instead what would be just and appropriate for the Court is to direct
the respondents to determine the relative merit of all candidates with loco motor
disability, who may have appeared in the competitive examination and who had been
selected and thereafter prepare a list of such candidates in order of merit by taking into
account the inter se merit of all such candidates and thereafter send its recommendation
to the government. This Court would also like to make it clear that the expression “
SELECTED” used hereinabove must necessarily mean those physically challenged
candidates who had succeeded in the main written examination and had been called for
interview but whose names have not been included in the select list because of the
inherent restrictions in the select list that had to be imposes in view of the number of
vacancies available. A physically handicapped candidate who has already been selected
on his own merit and on this basis has already been included in the select list prepared,
needless to say, will not compete against the reserved seat for physically handicapped
candidate. Once the recommendations of the Public Service Commission are received by
the State Government, the State Government will pass necessary orders for appointment
of most meritorious of the candidates recommended against the post that has been
directed by the Court to be kept vacant by its order dated 27-06-2003. The directions of
this Court will be required to be carried out by the Public Service Commission and
79
thereafter by the State authorities as expeditiously as possible and in any case within a
period of 3 (three) months from the date of receipt of a certified copy of this order.
8. Consequently and in the light of the foregoing discussions, this Writ Petition shall
stand allowed to the extent indicated above.
***
80
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
ITANAGAR BENCH
W.P(C) NO.166 (AP)2003 & Connected cases D.D. 20.5.2005
The Hon’ble Mr.Justice Ranjan Gogoi
Shri Padi Grayu & Ors. ... Petitioners Vs. The State of Arunachal Pradesh & Ors. ... Respondents Recruitment : Irregularities in recruitment process: Petitioners who are unsuccessful in the recruitment for Arunachal Pradesh Civil Services Group A & B held in the year 2001 challenged the select list on several grounds alleging irregularities in the selection process – High Court after examining each of the defects alleged found not valid – Hence writ petitions dismissed.
ORDER
All the 3 writ petitions being similar, were considered together are being disposed
of by this common judgment and order.
2. The petitioners, in each of the cases, were candidates in the combined
Competitive Examination held in the year 2001 by the Arunachal Pradesh Public Service
Commission (hereinafter referred to as the Commission.) for filling up of vacant posts in
the Arunachal Pradesh Civil Service (Group –A and B). While the writ Petitioner in
W.P.C.No.166 (AP) 2003 had qualified up to the stage of the main written examination
but was not called for interview. The four petitioners in WP(C) No.214(AP) 2003 had
taken part in the viva voce segment of the selection but their names were not included in
the select list of successful candidates recommended for appointment. The sixteen
petitioners in W.P.(C) No.125 (AP) 2003 like the petitioner in WP(C) No.166 (A) 2003,
did not qualify for the viva voce test. Being unsuccessful in the manner indicated, the
writ petitioners have assailed the selection held by the Public Service Commission and
81
the select list of successful candidates published by it and the recommendations sent to
the Government.
3. Largely similar grounds and contentions have been advanced in support of the
challenge made in all the cases, which reduced to its essence, can be conveniently
categorized in the following order:-
(i) Firstly it is urged that under the combined Competitive Examination Rules, 2001, though it was incumbent on the Commission to call the candidates for the interview in the ratio between 2:1 and 3:1 (twice /thrice as against the vacancies available), the Commission in the instant case, had called a disproportionate number of candidates and had fixed a percentage of 40.8 marks to be eligible to be called for interview.
(ii) Answer Scripts of the candidates have been changed and such Answer Scripts contain double markings.
(iii) The petitioners have been awarded low marks;
(v) The relatives of people in power and the Chairman and the
Office bearers of the Public Service Commission have been selected. (vi) The question papers did not contain any serial number and there was
also no indication in the question papers as to the examination, for which it was meant.
(vii) English was not made a compulsory subject in the examination.
4. The Commission has filed separate affidavits in each of the cases. In the affidavits
filed, the Commission has stated that in the selection in question, the Commission, in its
wisdom, had decided to follow the ratio of 2.5:1 for the purpose of determining the
number of candidates to be called for interview. Accordingly, there being 100 posts
covered by the selection, 250 candidates were called. There was no qualifying marks
fixed for being called for the interview but the last candidate called for interview had
secured 40.8% marks, which is a matter of co-incidence. The allegations of the Answer
Scripts being changed and there being anomalies in the marking, as alleged by the
petitioner(s), has been denied. In so far as evaluation of the answer scripts is concerned
the Public Service Commission, in the affidavit filed, has stated that such evaluation was
82
left to be done by the renowned academicians and the Public Service Commission has no
role to play in the matter of marks awarded by the examiners. The Commission in the
affidavit filed has also stated that the selection was made as per merit and that the
question papers were printed by the Examination Branch of the Public Service
Commission and there were no anomalies whatsoever on this score.
5. The power of the writ Court to scrutinize selection for appointments made by the
prescribed authority, which power has been sought to be invoked by the petitioners in the
present cases, has to be understood to be a limited and circumscribed power. The writ
Court cannot covert itself into an appellate body and embark upon a process of re-
examination of the selection process initiated and under taken. The role of the writ Court
is board and supervisory and the power must be exercised only in cases where there has
been blatant and perverse exercise of the jurisdiction reducing the selection process to a
farce or mockery. In the present case, it must be particularly kept in mind that the
selection was under taken by the Public Service Commission, a constitutional body, and
the Court will certainly not sit in judgment over the decisions of the Commission taken at
various stages of the selection process, if such decisions are, otherwise, within the power
and jurisdiction of the Commission and the same have been taken in a just and fair
manner.
6. It is in the above backdrop that the Court must proceed to analyze the contentions
advanced on behalf of the rival parties.
Under the Combined Competitive Examination Rules, 2001, the Public Service
Commission is required to call for the interview, candidates between 2 to 3 times the
number of vacancies available. In the present case, the Commission, in the affidavit filed,
has stated that a decision was taken to call candidates in the ratio of 2.5:1 and
accordingly, for the 100 vacancies, 250 candidates were called. If that be so, it is difficult
to visualize as to how the discretion vested in the Commission can be understood to have
been improperly exercised. No qualifying mark was prescribed for being eligible to be
called for interview. The fact that the last of the candidates called for the interview had
secured 40.8% marks in absolutely co-incidental.
83
7. The grievances raised by the petitioners with regard to the answer scripts written
by them has been basically three –fold. Low marks have been awarded to the writ
petitioners which they contend, is an arbitrary exercise. Anomalies in the answer scripts,
by way of double marking is the second grievance on the issue whereas the third
grievance is that the answer scripts have been changed/ altered, meaning thereby that the
marks secured by one candidate have been assigned to another.
8. To ensure that the petitioners do not continue to entertain any grievance on the
aforesaid score and also satisfy the conscience of the Court, this Court had required the
Public Service Commission to place the answer scripts of all the petitioners in all the
subjects of the examination taken by them. The answer scripts have been accordingly
made available to the Court in a sealed cover and the Court has scrutinized the answer
scripts of all the petitioners in two of the compulsory papers i.e., General English and
Essay and two Optional papers of the some of the Petitioners i.e., Public Administration
and History. No double marking, erasures or any other discrepancies are noticed in the
answer scripts examined by the Court. The allegation that the answer scripts have been
changed is an allegation that would require a more in-depth examination, which, in the
absence of any prima facie materials, the Court does not consider to be a proper exercise
to be gone merely on the basis of the allegations made. In so far as the award of low
marks is concerned, this Court must put on record that marks awarded by an examiner is
so awarded on the perceptions and judgment of the examiner. Such marks awarded must,
normally, be allowed to hold the field and the Court must not convert itself to an
appellate body to sit in judgment over the decision of the examiner that a candidate
deserves to be awarded a particular mark. In the present case, the examiners being
independent academicians of high repute, appointed by the Public Service Commission,
no basis is disclosed as to why the Court should undertake any exercise to substitute or
supplant the views of the examiners.
9. In so far as the allegation or relatives of politicians and officials of the Public
Service Commission being selected, this Court must put on record that being related to a
84
person in power or a person connected with the Public Service Commission, person
cannot be under stood to be disqualification so as to render such a person ineligible for
selection. There must be positive material that such a relative has been selected not on his
merit but because of his relationship. In the present case, no such material is forthcoming.
Even the names of the candidates and their relations, who are alleged to be in power,
have not been mentioned. In so far as the grievance with regard to the printing of
question papers is concerned, this Court finds it difficult to visualize as to how the
petitioners can have any complaint on this score. It is not the case of the petitioners that
there was any leakage of the question paper. How the question papers were printed; in
which press these were printed; how many question papers were printed; how many were
used are all questions that have no relevance, unless the petitioners pleaded and proved
that there was a leakage of question papers, which is not the case in the present
proceedings.
10. It is again difficult to visualize and appreciate the contention of the petitioners
that English was not made a compulsory subject. A paper on General English and Essay
was mandatory for all the candidates and in fact the Court had scrutinized the answer
scripts of the petitioners on the aforesaid subjects.
11. For all the aforesaid foregoing this court finds no good ground to cause any
interference as prayed for by the writ petitioners. All the Writ petitions, therefore, are
dismissed but without any cost.
***
85
BIHAR PUBLIC SERVICE COMMISSION
86
IN THE HIGH COURT OF JUDICATURE AT PATNA L.P.A NO.1555 of 1999
D.D. 6.4.2001 Hon’ble Mr. Justice Nagendra Rai Hon’ble Mr. Justice S.K.Katriar
The State of Bihar ... Petitioner Vs. Narendra Deo & Ors. ... Respondents Recruitment : Recruitment Rules in force when selection process was started apply and not amendment made in the midst of selection. Recruitment to the post of Village Level Worker/Village Extension Worker in accordance with the provisions of Bihar Jan Sewak and Gramin Prasar Karyakarta Niyamawali, 1987 – Learned Single Judge allowed the writ application filed by the respondent as per the above principle – Appeal filed by the State is dismissed. Held: Law is well settled that when the process of selection has started in accordance with the Rules in force, then the selection has to be made on the basis of the said Rules and the amendment in the midst of the selection process will not deprive the candidates of consideration of their cases according to the Rules in force at the relevant time. Further held: If there is no vacancy at any place then the State is not obliged to fill up the same only because advertisement has been issued for the said purposes.
ORDER
Heard the parties.
This appeal is directed against the judgment dated 2nd September, 1998, whereby
the learned single Judge allowed the writ application filed by the respondents – writ
application filed by the respondents – writ petitioners for commanding the respondent –
appellant and its officers to consider the cases of the writ petitioners for appointment to
the post of Village Level Worker/Village Extension Worker in accordance with the
provisions of Bihar Jan Sewak and Gramin Prasar Karyakarta (Bharti Avam Sewa
Sharten) Niyamawali, 1987 (hereinafter referred to as the Rules).
87
Learned single Judge held that as the process of selection in the case of the writ
petitioners-respondents had started according to the Rules prior to the Government
decision dated 6.12.1995 providing a different procedure, the same has to be completed
in accordance with the Rules.
Law is well settled that when the process of selection has started in accordance
with the Rules in force, then the selection has to be made on the basis of the said Rules
and the amendment in the midst of the selection process will not deprive the candidates
of consideration of their cases according to the Rules in force at the relevant time.
We fully agree with the view taken by the learned single Judge.
During the course of arguments, learned counsel for the appellant-State stated that
in many districts there is no vacancy and as such the direction given for filling of the post
cannot be carried out.
This Court has only directed for consideration of the cases of the writ petitioners –
respondents for appointment according to the Rules as it was in force at the time when
the selection process had started. If there is no vacancy at any place, then the State is not
obliged to fill up the same only because advertisement has been issued for the said
purposes.
With the aforesaid observation, this appeal stands disposed of.
***
88
IN THE HIGH COURT OF JUDICATURE AT PATNA LPA NO.893 of 2003
D.D. 13.10.2003 Hon’ble Mr. Nagendra Rai, A.C.J.
Hon’ble Mr. R.S.Garg, J. The Bihar P.S.C. ... Appellant Vs. The State of Bihar & Ors. ... Respondents Reservation: Backward Caste Certificate required to be issued by District Magistrate is issued by Sub Division Magistrate. Whether valid? - No Recruitment to the post of Assistant Teacher in Primary School – The writ petitioner-respondent No.2 who claimed to be backward caste candidate produced caste certificate granted by Sub Division Magistrate – Rules provide that the said certificate should be issued by the District Magistrate – Respondent No.2 was selected and appointed on the basis of backward class certificate issued by the Sub Divisional Magistrate – This appeal preferred by the State is allowed quashing the order of the learned Single Judge. Held: As per Government Circular dated 6.5.1995 for the purpose of admission and other purposes apart from the District Magistrate other authorities are also authorised to grant caste certificate but so far as appointment is concerned the sole authority to grant the certificate is District Magistrate of the concerned District.
ORDER The appellant – Bihar Public Service Commission (hereinafter referred to as the
Commission) is aggrieved by the order dated 14.8.2003 passed by the learned Single
Judge of this Court allowing the writ application being CWJC No.6344 of 1999 filed by
the writ petitioner – respondent No.2 directing the Commission to publish his result for
appointment as Assistant Teacher in Primary School in the district of Bhojpur.
It is admitted position that there is provision for reservation for appointment to the
post of Assistant Teacher. Category 05 relates to backward class candidates. The writ
petitioner – respondent No.2 applied and claimed to be the backward class candidate but
filed the caste certificate granted by the Sub-divisional Officer. The Commission did not
accept the said certificate and treated the writ petitioner – respondent No.2 as a general
89
category candidate and as such he has not been selected by virtue of having obtained
lesser marks as general category candidates. The writ petitioner – respondent No.2 filed
the said writ application before this Court and the learned Single Judge has allowed the
same on the ground that Clause (kha) of the Circular of the Government No.1031 of 1994
dated 9.2.1994 provides that in case of extremely backward class and backward class, the
Collector/District Magistrate/Deputy Commissioner, Additional Collector/Additional
District Magistrate/Additional Deputy Commissioner and Sub-Divisional Officer/Deputy
Collector, Land Reforms are competent to issue caste certificate. As in the case of writ
petitioner – respondent No.2 certificate has been issued by the Sub-divisional Officer, the
authorities have wrongly treated him in general category candidate.
The Government Circular of 1994 has been modified and clarified by subsequent
Government Circular No.32 dated 6.5.1995 which has been filed by the Commission as
Annexure C/1 to the counter affidavit in the writ petition. From perusal of the same it
appears that the District Magistrate and other authorities are the prescribed authorities for
grant of caste certificate but so far appointment is concerned Clause (4) of the said
Circular of 1995 clearly states that so far appointment to the post in Government service
is concerned the competent authority to grant caste certificate is the District Magistrate.
In other words for the purpose of admission and other purposes, apart from the District
Magistrate the other authorities have also been authorised to grant caste certificate but so
far appointment is concerned the sole authority to grant certificate is the District
Magistrate of the concerned District. As admittedly in this case caste certificate granted
by the District Magistrate has not been filed by the writ petitioner – respondent No.2 the
stand taken by him that he belongs to the backward class candidate cannot be accepted.
We have already dealt with the similar matter in LPA No.729 of 2003 (Ashok
Kumar Vs. The State of Bihar & others) disposed of on 26.8.2003 and we have already
held that for the purpose of employment/appointment the authority competent to grant
caste certificate is the District Magistrate. In that view of the matter we find force in the
submission raised by the appellant – Commission that the learned Single Judge was not
90
justified in allowing the writ application on the ground that the requisite caste certificate
was filed by the writ petitioner – respondent No.2.
In the result, the impugned order passed by the learned Single Judge is set aside
and the appeal is allowed.
***
91
IN THE HIGH COURT OF JUDICATURE AT PATNA L.P.A. No. 930 of 1998
With L.P.A. No. 931 of 1998
D.D.20.5.2005 The Hon’ble Mr. Justice Barin Ghosh The Hon’ble Mr. Justice V.N.Sinha
Dr. Dharmendra Kumar Singh ... Applicant Vs. Dr. Jyoti Prasad & Anr. ... Respondents
Appointment : Whether Teaching experience gained on the basis of an order which was subsequently quashed can be treated as valid experience in the eye of law? – Yes Recruitment Rules prescribe minimum teaching experience of 3 years for promotion to the post of Lecturer, Prosthetic apart from requisite qualification – Learned Single Judge quashed the promotion of the appellant Dr.Singh on the ground that the teaching experience gained by Dr. Singh on the basis of an order which was subsequently quashed cannot be treated as valid – The Division Bench allowed the Appeals and issued direction. Held:
It is true that no one can take advantage of a wrong order. It is also true that an order quashed by the court in a proceeding initiated under Article 226 of the Constitution of India should be treated to have never been in existence. However, it cannot be said that a person who had worked on the basis of such an order does not earn experience. Case referred:
A.I.R. 1983 SC 509 – Dr. Prashun Kumar Ghosh Vs. Union of India
ORDER
Barin Ghosh, J. The two appeals are by Dr. Dharmendra Kumar Singh (hereinafter
referred to as ‘Dr.Singh’) against the common judgement and order dated 03rd August,
1998 rendered in two writ petitions, registered as C.W.J.C.No. 8106 of 1997 and
C.W.J.C. No.9321 of 1997 filed by Dr.(Mrs.) Mridula Verma (hereinafter referred to as
‘Dr. Verma’) and Dr.Jyoti Prasad (hereinafter referred to as ‘Dr.Prasad’) respectively.
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2. In both the writ petitions the petitioners contended that Dr.Singh does not posses
the minimum required teaching experience of three years for being promoted to the post
of Lecturer, Prosthetic, which was accorded to him. They also contended that it was
improper on the part of the State respondents in not considering their candidature for
being appointed to the said post.
3. By the impugned judgement and order the learned Judge held that the
appointment of Dr.Singh is not in accordance with law and accordingly, His Lordship set
aside the said appointment and remitted the matter back to the Government to consider
the question afresh in the light of the observations made in the said Judgment. At the
same time the learned Judge found that the question was of filling up of vacancy of 1991
and, accordingly, Dr.Prasad was not eligible to be appointed to the post in question for he
was appointed to the feeder post of Tutor in 1992. The learned Judge, however, directed
that if it is found that Dr.Singh and Dr.Verma were having requisite qualifications and
experience up to the relevant date, then the appointment has to be made according to law
with an observation that if it is found that neither Dr. Singh, nor Dr.Verma has requisite
qualification up to the relevant date, then the cases of the other doctors, who acquired
requisite qualifications and experience subsequently, should be considered for promotion
to the post of Lecturer, Prosthetic though in that case the appointment has to be made not
from 1991, but from a subsequent date.
4. In holding that the appointment of Dr.Singh is not in accordance with law, the
learned Judge accepted two principal contentions of Dr.Verma and Dr.Prasad, namely,
that any experience gained on the basis of an order, authorizing Dr.Singh to teach, which
order was subsequently quashed, cannot be treated to be valid experience in the eye of
law; and that the observations made in a decision by a Division Bench of this Court in an
earlier appeal, before whom Dr.Singh, Dr.Verma and Dr.Prasad were present in addition
to the State respondents, in relation to the experience of Dr.Singh, are res integra and
have not attended finality.
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5. In order to appreciate the rival contentions of the parties and to appreciate the
findings of the learned Single Judge we have looked into those facts which were accepted
by the learned Single Judge and which were also accepted by the parties before us. It
appears that on 20th December, 1979 Dr.Singh was appointed as Tutor, Dental Hygienist,
whereas Dr.Verma was appointed as Tutor, Dental Mechanics on purely ad hoc basis for
six months in Patna Dental College. On 30th July, 1981 Dr.Singh was posted as Tutor,
Hygienist and Dr.Verma was appointed as Tutor, Dental Technician in Patna Dental
College until further order. At the same time Dr. Singh was asked to perform the duty of
Tutor Dentistry. He, thus, started his teaching career. The Dental Council of India in its
meeting held on 17th and 18th April, 1984 took a decision that duties of a Doctor as
Dental Hygienist be taken into account as teaching experience of Tutor Dentistry.
Accordingly, a request was made by the Dental Council of India to the Government of
India for approval of its said decision as required under section 20(1) of the Dentist Act,
1948. No approval to the said decision was granted by the Government of India. It does
not appear that even now the Government of India has given approval to the said
decision. On 30th May, 1984 the Central Government approved the proposal of the Dental
Council of India to treat the post of Tutor Dental Technician as a teaching post. On 19th
February, 1987 the State Government issued a notification and thereby appointed Dr.
Singh as Tutor Dentistry with retrospective effect from 01st August, 1981.
Simultaneously therewith a writ petition registered as C.W.J.C. No. 762 of 1992 was filed
challenging the said Notification dated 19th February, 1987. By the judgment and order
dated 26th September, 1988 C.W.J.C.No.762 of 1987 was allowed and the said
notification of the Government dated 19th February, 1987 was quashed. On 12th July,
1991 the Additional Secretary, Health, Medical Education and Family Welfare,
Government of Bihar prepared a note and therein proposed to grant promotion to
Dr.Singh to the said post of Lecturer, Prosthetics in Patna Dental College. On 12th
August, 1991 the Departmental Promotion Committee found Dr. Singh fit for promotion
to the said post. The Departmental Promotion Committee though considered the case of
Dr.Singh on the basis of the proposal contained in the note dated 12th July, 1991, where
the proposal was only to promote Dr.Singh, it held that Dr.Singh is senior to Dr.Verma.
As aforesaid Dr.Singh and Dr.Verma were appointed on the same date. There is no
94
dispute that Dr.Verma passed BDS earlier. There is also not dispute that by age
Dr.Verma is also senior to Dr.Singh, There is also no dispute that prior to 12th August,
1991 there was no determination of inter se seniority in between Dr.Singh and Dr.Verma.
At the same time there is no dispute that Dr.Singh and Dr.Verma were then working in
two different Departments, one in the Department of Prosthetics and the other in the
Department of Prothentia. When the recommendation of the Departmental Promotion
Committee came to be considered by the Government, the Government on 24th
November, 1992 rejected the same on the ground that Dr.Singh did not have required
teaching experience. This decision of the Government was challenged by Dr.Singh by
filing a writ petition which was registered as C.W.J.C.No.12481 of 1992. In the said writ
petition it was contended that since Dental Council of India has taken a decision that duty
of a doctor as Dental Hygienist should be taken into account as experience of Tutor,
Dentistry, it must be deemed that in 1991 Dr.Singh had sufficient teaching experience. In
addition to that it was contended that Dr.Singh acquired teaching experience by, in fact,
teaching with effect from 30th July, 1981 until the same was quashed by the Court on 26th
September, 1988 and therefrom it was incorrect on the part of the Government to assume
that Dr.Singh did not have required teaching experience. By a judgment and order
rendered on 08th April 1994, a learned Single Judge of this Court rejected
C.W.J.C.No.12481 of 1992 principally on the ground that the decision of the Dental
Council of India that duties of a doctor as Dental Hygienist be taken into account as
experience of teaching in Dentistry was not translated into law as the Government of
India did not accord approval, which is a requirement under section 20(1) of the Dentist
Act, 1941. The Government, while rejecting the recommendation of the Departmental
Promotion Committee also held out that Dr. Verma too does not have required teaching
experience. Accordingly, Dr.Verma also challenged the said decision of the Government
by filing a writ petition registered as C.W.J.C.no. 0844 of 1993. C.W.J.C.No.0844 of
1993 was also dismissed on 08th April, 1994 by a common judgment. Dr.Singh filed
L.P.A. No.59 of 1994 and Dr.Verma filed L.P.A. 61 of 1994 challenging the common
judgment and order rendered on 08th April, 1994 while dismissing C.W.J.C. No.12418 of
1992 and C.W.J.C. No.0844 of 1993. The said two appeals were decided by a Division
Bench on 20th December, 1996. The Division Bench held that in the absence of the
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approval by the Central Government under section 20(1) of the Dentist Act, 1948, the
proposal of the Dental Council of India to treat the duty of the Dental Hygienist as
teaching experience of a Tutor would be improper and accordingly it agreed with the
finding of the learned Single Judge to that effect. At the same time the Court observed as
follows:
“But considering the claim of this appellant’s (Dr.Singh) teaching experience as Tutor. Dentistry, there cannot be any dispute that by an order dated 30.7.1981, contained in Annexure-6 to the writ petition, he was directed to work as Tutor Dentistry in addition to his duties. This is also not in dispute that the aforesaid order was later confirmed by the State Government vide a Notification of the Health Department dated 19th February, 1987 with effect from 1.8.1981. The Notification was, however, quashed by this Court on 26.9.1988 as a result Dr. Singh although filed a Letters Patent Appeal but continued to work as Dental Hygienist. In any view of the matter, undisputedly Dr.Singh also got teaching experience while working as Tutor Dentistry for more than three years. But I have not noticed that this aspect was not considered by the learned single Judge while disposing of a writ petition.” Before the appeal court Dr. Prasad contended that to grant the benefit of teaching
experience either to Dr.Singh or to Dr.Verma against the post of Tutor Dentistry with
effect from 01st August, 1981 would offend his seniority. He contended that the
notification dated 26th September, 1988 whereby Dr.Singh was absorbed with effect from
01st August, 1981 against the post of Tutor, Dentistry, has been quashed. In relation to
those contentions the appeal court observed as follows:
“In my view, having regard to the questions involved in these cases, such an apprehension of the learned counsel has no substance. Because the scope of these appeals is only to consider whether appellants are qualified for consideration to the posts of lecturers, Prosthetics.” The Division Bench by this judgment and order dated 20th December, 1996
allowed both the appeals and set aside the judgment and order of the learned single Judge
dated 08th April, 1994 with a direction to the respondents to consider the case of the
appellants i.e.Dr.Singh and Dr.Verma, for the post of Lecturer, Prosthetics, if they are
otherwise qualified. Thereafter, on 25th April, 1997 the Deputy Secretary to the
Government by a letter informed the Secretary, Bihar Public Service Commission that
after the said judgment of the Division Bench the earlier proposal for grant of promotion
96
made on 12th July, 1991 stands revived. It was added that on enquiry it was found that
Dr.Singh is senior to Dr.Verma and that she has been proceeded with departmentally on
serious charges and that Government has taken decision to punish her. Thereafter, on 27th
June, 1997 the Deputy Secretary to the Government prepared a Note and there it was
mentioned that in view of the said judgment of the Division Bench Dr.Singh has more
than three years teaching experience and as such he is eligible for promotion to the said
post. On 19th August, 1997 the Departmental Promotion Committee declared that
Dr.Singh is fit for promotion. Simultaneously Dr.Verma filed a writ petition registered as
C.W.J.C.No.8106 of 1997 for consideration of her case for promotion to the said post and
during pendency of the said writ petition on 11th April, 1998 a Notification was issued
and thereby Dr.Singh was promoted to the said post. At that stage Dr.Prasad also filed a
writ petition registered as C.W.J.C. No.9321 of 1997. On 22nd April, 1998 a learned
single Judge passed an order restraining Dr.Singh from functioning as Lecturer,
Prosthetics, in Patna Dental College. Thereafter, the impugned judgment and order was
passed on 03rd August, 1998 and on 01st September, 1998 a Division Bench of this Court
granted stay of the impugned judgment and order in L.P.A. No.930 if 1998.
Subsequently, on 01st August, 2002 Departmental Promotion Committee found Dr.Verma
fit for promotion to the said post as on 11th January, 1987.
6. From the facts, as above, it would be evidenced that the promotion to the post in
question was considered in 1991. Admittedly, Dr.Prasad was appointed as Tutor in 1992.
There is no dispute that the State Government has not made any law either statutory or by
way of administrative instructions specifying eligibility to be promoted to the said post.
There is, however, no dispute that the Central Government in July, 1973 laid down that in
order to be appointed to the post of Assistant Professor/Reader/Senior Lecturer, which is
equivalent to the post of Lecturer in the instant case, the required qualification is BDS
degree of an Indian University or an equivalent qualification with post Graduate
qualification in the subject with three years’ teaching experience in the subject. Dr.Prasad
having joined as Tutor, i.e, a teaching post in 1992 could not acquire three years teaching
experience in the subject. Dr. Prasad having joined as Tutor, i.e. a teaching post in 1992
could not acquire three years teaching experience in 1991 and, accordingly, he could not
97
be considered for promotion to the post in question. There is no dispute that Dr.Singh
was asked to perform duty of Tutor Dentistry with effect from 30th July, 1981 and
Dr.Verma was appointed as Tutor Dental Technician and in terms of the decision of the
Central Government dated 30th May, 1984 such duty is to be considered as teaching duty.
There is also no dispute that they performed their such duty until 26th September, 1988
when the Notification dated 09th February, 1987, appointing Dr.Singh and Dr.Verma as
Tutor Dentistry and Tutor Dental Technician respectively with retrospective effect from
01st January, 1981 was quashed. Therefore, Dr.Singh acquired teaching experience by
actually teaching, whereas Dr.Verma acquired deemed teaching experience for a period
in excess of three years prior to 1991.
7. There is also no dispute that in 1991 when the case for promotion of Dr.Singh to
the said post was considered the case of Dr.Verma was not considered at all. There was
no just reason why the case of Dr.Verma was not considered. There is no promotion
policy of the government. The aforementioned policy of the Government of India does
not suggest that seniority is a fact to be taken note of for grant of promotion to the said
post. As aforesaid, the State Government has not laid down any law fixing seniority as
one of the requirements for granting promotion to the said post. Even after the positive
direction of the Division Bench rendered on 20th December, 1996, the case of Dr.Verma
was not considered on the ground that she is junior to Dr.Singh. At that stage it was
added that the case of Dr.Verma will not be considered for she has been proceeded with
departmentally on serious charges. Although in 1991 no charge sheet was issued against
Dr.Verma it appears that before 25th April, 1997 a charge sheet was issued against her but
no final decision in the disciplinary proceeding has yet been taken. In such situation, the
case of Dr.Verma was also required to be considered and the decision in relation thereto
should have been kept in a sealed cover and if she was preferred over Dr.Singh, the post
ought to have been kept vacant until the departmental proceeding reached its finality,
inasmuch as there was only one post. For no just reason this procedure was not adopted,
and, accordingly, Dr.Verma had reasons to be aggrieved by the decision of the
Departmental Promotion Committee dated 19th August, 1997 declaring Dr.Singh fit for,
promotion to the said post. However, inasmuch as Dr.Prasad did not come within the
98
zone of consideration, he had no reason to be aggrieved by the said decision, but then it
was the contention of Dr.Prasad that neither Dr.Singh nor Dr.Verma was entitled to be
promoted for they did not have required teaching experience, as was contended in his
writ petition and, accordingly, if none of them could be promoted, the post in question
will remain vacant and the same would be filled up by a proper person having all
necessary requisite qualifications and when the cases of other persons will be considered,
the case of Dr.Prasad will also be considered. The learned Judge partly accepted the
contention of Dr.Prasad and declared that Dr.Singh did not have the requisite teaching
experience by accepting the contentions as mentioned above.
8. We do not think that the learned single Judge was right in directing that if it is
found that Dr.Singh and Dr.Verma were having requisite qualification and experience
upto the relevant dates, then the appointment has to be made according to law, for the
learned Judge held that Dr.Singh did not have requisite teaching experience. However,
the direction that is it is found that none has requisite qualification upto the relevant date,
then the cases of other doctors who acquired requisite qualifications and experience
subsequently should be considered for promotion to post in question though in that case
the appointment has to be made not from 1991 but from a subsequent date is a direction
which cannot be interfered with. We are, however, unable to accept the view of the
learned single Judge as contained in the impugned judgment and order to the effect that
the experience gained on the basis of an order which was subsequently quashed cannot be
treated to be a valid experience in the eye of law and that the decision of the division
bench rendered on 20th December, 1996 is res integra and has not attended finality.
9. From the portion of the judgment of the division bench as quoted above, it is clear
that there is a direct and clear pronouncement of the division bench rendered on 20th
September, 1996 that Dr.Singh Undisputedly has got experience as tutor Dentistry for
more than three years. The passage of the division bench judgment dated 20th December,
1996 referred by the learned single Judge makes it abundantly clear that the division
bench did not go into the question as to grant of the benefit of teaching experience to
Dr.Singh with effect from 1st August 1981 which may offend the seniority of Dr.Prasad,
99
as was claimed by him, inasmuch as the question before the division bench was not of
seniority and the scope of appeal was only to consider as to whether Dr.Singh and
Dr.Verma were qualified to be considered for the said post and that too only in regard to
three years teaching experience and in no uncertain terms directed consideration of the
cases of Dr.Singh and Dr.Verma for the said post. The division bench, accordingly, held
that Dr.Singh had requisite teaching experience which was the bone of contention
between the parties in the said appeals. The said finding given by the division bench
which has been permitted to reach finality, cannot be said to be res integra, or has not
attended finality.
10. It is true that no one can take advantage of a wrong order. It is also true that an
order quashed by the court in a proceeding initiated under Article 226 of the Constitution
of India should be treated to have never been in existence. However, it cannot be said that
a person who had worked on the basis of such an order do not earn experience. In the
case of Dr.Prashun Kumar Ghosh vs.Union of India, reported in A.I.R. 1983 S.C. 509 on
the facts it was found that Dr.Prashun Kumar Ghosh while holding the post of
Radiologist-cum-Professor of Radiology was asked to teach in addition to his duty as
Radiologist. It was found that Dr.Ghosh actually taught students. It was also found that
Dr.Ghosh was not drawing teaching allowance for such allowance was attached to the
regular teaching post. The experience thus gained by Dr.Ghosh was not taken into
account as the required teaching experience. This dispute was sorted out by the Supreme
Court. The Supreme Court looked at the rules and found that there is no provision made
in the Rules that the teaching experience must be gained on a regular appointment and
unless the same is so gained, it would not count towards teaching experience. The
Supreme court observed that there is hardly any difference so far as teaching experience
is concerned whether it is acquired on regular appointment or as specialist in a teaching
hospital with the Ex-officio capacity. The court, thus, held that Dr.Ghosh was entitled to
be considered for he had the actual teaching experience. In the instant case not only
Dr.Singh had actual teaching experience but his such experience has been taken note of
and upheld by a division bench of this court, which has reached its finality and is binding
upon the parties before us. In such situation it was not permissible for the learned single
100
Judge to hold that the impugned appointment of Dr.Singh to the question was not in
accordance with law for he did not have the requisite teaching experience, as is the view
of the learned single Judge expressed in the impugned judgment and order.
11. While, therefore, we set aside the judgment and order under appeal but at the
same time direct Dr. Singh not to function in the said post until the cases of Dr.Singh and
Dr.Verma for promotion to the said post is considered simultaneously on their merits. In
the event it is held that Dr.Verma is to be preferred for the promotion, sealed cover
method should be adopted and only after the disciplinary proceeding against her reached
its finality, the decision in the sealed cover shall be given effect to in the manner as is
required to be given effect to on the basis of the out come of the disciplinary proceeding
and in such case the post shall remain vacant until disciplinary proceeding against
Dr.Verma reaches its finality. In the event it is found that Dr.Singh and Dr.Verma are not
fit to be promoted, then the cases of the other doctors should be considered for promotion
to the post in question and in that case appointment shall be given not from 1991 but
from a subsequent date when the chosen incumbent acquired necessary qualification to be
appointed.
12. The appeal is, thus, disposed of. There shall be no order as to costs.
***
101
CHHATTISGARH PUBLIC SERVICE COMMISSION
102
HIGH COURT OF JUDICATURE CHHATTISGARH : BILASPUR WRIT PETITION NO.3171 OF 2004
D.D. 28.9.2004
Hon’ble Shri A.S.Venkatachala Moorthy, CJ & Hon’ble Shri L.C.Bhadoo, J.
Sarita Das ... Petitioner Vs. State of Chhattisgarh & Anr. ... Respondents Age relaxation: Fixing minimum age for applying to the post of Civil Judge Class-II Chhattisgarh Lower Judicial Service (Recruitment and Conditions of Service) Rules, provides that a candidate should be of 25 years of age to apply for the post – Petitioner who is a Law Graduate below 25 years has sought for quashing of the said Rule on the ground that it is contrary to clear mandate of the Supreme Court in All India Judges Association & Ors. Vs. Union of India & Ors. case (AIR 2002 SC 1752) – Pursuant to the said decision the requirement of having practice at the Bar not less than 3 years for applying for the post has been dispensed with but the Rules were not amended to reduce the minimum age of 25 years – High Court allowed the writ petition quashing the Rule fixing 25 years as minimum age and directed the 2nd respondent to make necessary publication that even persons who have not completed 25 years of age, but, possessing the qualification can apply etc. Held: If the rule is allowed to stand, then a person who secures a law degree at the age of 21 will have to wait for four years to become eligible to apply for a post in Lower Judicial Service. That being so, fixing minimum of 25 years of age cannot be said to be not contra to the directions given by the Supreme Court.
ORDER The following order of the Court was passed by A.S.Venkatachala Moorthy, CJ:- The petitioner who is a fresh Law Graduate prays this Court to issue a writ of
certiorari to quash Rule 7(b) of Chhattisagarh Lower Judicial Service (Recruitment and
Conditions of Service) Rules, 1994 (2001?) to the extent that it lays down that a
candidate should be of 25 years of age to apply for a post in Lower Judicial Service. His
grievance is that such a rule cannot be allowed to be there in view of the clear mandate of
Supreme Court of India in the case of All India Judges Association and Others Vs. Union
103
of India and Others reported in AIR 2002 SC 1752. Further case of the petitioner is that
second respondent has now called for the applications from the candidates who are Law
Graduates for the post of Civil Judge, Class-II who have completed 25 years of age.
(2) First respondent has filed a reply resisting the claims of the petitioner
contending that in view of what has been stated in para-40 of the judgment in the case of
All India Judges Association (supra), the petitioner who in effect seeks only a
clarification has to go before that Court and this Court may not entertain the writ petition.
Alternatively, it is contended that fixing such minimum age has a reasonable nexus with
the object sought to be achieved and therefore, eligibility criteria does not suffer from any
legal and constitutional infirmity. According to this respondent the directions given by
the Supreme Court in the above-referred case has been complied with and now the
requirement of having practice not less than three years has been dispensed with. The
first respondent has endeavoured to explain that by the time a person completes his law
examination he will be 23rd/24th year of age and after making necessary preparations for
the competitive examination he becomes eligible for the test of Civil Judge Class-II on
attaining the age of 25. After so explaining, the first respondent has concluded by stating
that the rule prescribing the minimum age cannot be said to be discriminatory, arbitrary
and unreasonable, and consequently the writ petition has to be dismissed.
(3) The second respondent namely Public Service Commission has filed a reply
independently, but however putting forth the same points raised by the first respondent.
The only extra point that has been raised by the second respondent is that the writ petition
is liable to be dismissed for laches since the advertisement for calling of applications by
second respondent was made as early as 19.8.2004, but the present petition was filed only
on 10.9.1994 and according to him there has been inordinate delay in petitioner
approaching this Court.
(4) The State of Chhattisgarh was in fact originally a part of State of Madhya
Pradesh till 01.11.2000. After formation of the new State, rules of Madhya Pradesh have
104
been extended to be in force in this State. It is necessary and appropriate to refer to the
relevant rule as it stood earlier.
In pursuance of the provisions contained in Proviso to Article 309 of the
Constitution of India, the Government of Madhya Pradesh was pleased to make the rules
for consideration of the judicial service and for regulating the recruitment and conditions
of service of persons appointed to that service. The rules are called ‘Madhya Pradesh
Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955’.
According to Rule 19 no person hall be eligible for appointment of Civil Judge unless
he/she is a Graduate of Law of any University and has practised at the Bar for not less
than three years. That rule prescribes only maximum age as 30 years; however, the same
was relaxed up to 32 years in case of candidates applying from the castes or tribes
specified in the Constitution (Scheduled Castes) Order, 1950 or Constitution (Scheduled
Tribes) Order, 1950.
(5) The said rules continued to be in force till 1995 when the Madhya Pradesh
Lower Judicial Service (Recruitment and Conditions of Service) Rules 1994 came into
force on 17.10.1994. The said rules (1994 Rules) repeal all rules corresponding to these
rules, orders and resolutions, if any, and in force immediately before commencement in
respect of matters covered by these rules.
Rule 7 of 1994 Rules lays down as under:
“7. Eligibility.- No person shall be eligible for appointment by direct recruitment to posts in category (i) of Rule 3(i) unless:-
(a) he is a citizen of India;
(b) he has attained the age of 25 years and not completed the age of 35 years on the first day of January of the year in which applications for appointment are invited:
Provided that the upper age of limit shall be relaxable up to a
maximum of five years if a candidates belongs to scheduled Castes, Scheduled Tribes or other Backward Classes:
105
Provided further that the upper age limit of a candidate who is a Government servant (whether permanent or temporary) shall be relaxable up to 38 years;
(c) he possesses a degree in law of any recognised University;
(d) he has practised as an advocate for not less than three years
on the first day of the January of the year in which applications for appointment are invited; and
(e) he has good character and is of sound health and free from
any bodily defect which renders him unfit for such appointment.”
(6) The Government of Chhattisgarh issued Notification bearing No.6700/21-
AP.2001/CG, dated 27th December 2001, extending the Madhya Pradesh Lower Judicial
Service (Recruitment and Conditions of Service ) Rules, 1994 to this State. The order
reads thus:
ORDER
1. (1) This order may be called the Adaptation of Laws Order, 2000.
(2) it shall come into force in the whole State of Chhattisgarh on the First day of
November, 2000.
2. The Laws as amended from time to time, specified in the Schedule to this Order,
which were in force in the State of Madhya Pradesh immediately before the formation of
the State of Chhattisgarh, are hereby extended to and shall be in force in the State of
Chhattisgarh until repealed or amended. Subject to the modifications that in all the laws
for the words “Madhya Pradesh” wherever they occur the word “Chhattisargh” shall be
substituted.
3. Any thing done or any action taken (including any appointment, notification,
notice, order, form, rule, regulation, certificate or licence) in exercise of the powers
conferred by or under the laws specified in the Schedule shall continue to be in force in
the State of Chhattisgarh.
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Schedule
Sl.No. Name of Laws
(1) (2)
1. Madhya Pradesh Civil Court Adhiniyam, 1958.
2. ---------------------
15. The Madhya Pradesh Lower Judicial Service (Recruitment and Conditions of
Service) Rules, 1994.
16. ---------------
[Emphasis Supplied)
Now this rule is described as Chhattisgarh Lower Judicial Service (Recruitment
and Conditions of Service) Rules, 1994 in the advertisement made by the second
respondent rightly because the order referred (supra) does not say that the year must be
substituted as 2001 instead of 1994. In fact the order should have been to the effect that
the year also shall stand substituted as 2001.
(7) The Supreme Court in All India Judges Association and Others (supra) had
occasion to examine various aspects/questions including conditions of service of
subordinate judiciary. In that case the Supreme Court also considered the report of
Shetty Commission and the question as to whether while appointing a person to the post
of judicial service (Civil Judge, Class-II), it has to be insisted that such person should
have atleast three years of experience as an advocate. The Apex Court answered in
negative and directed all High Courts and the State Governments to amend their Rules so
as to enable a fresh Law Graduate who may not even have put in even three years of
practice, to be eligible to compete and enter the judicial service. We deem it necessary to
extract herein the relevant paragraph in the said judgment.
“32. In the All India Judges’s case, (1993 (4) SCC 288 at P.314), this Court has
observed that in order to enter the Judicial Service, an applicant must be an Advocate of
at least three years standing. Rules were amended accordingly. With the passage of
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time, experience has shown that the best talent which is available is not attracted to the
Judicial Service. A bright young law graduate after 3 years of practice finds the Judicial
Service not attractive enough. It has been recommended by the Shetty Commission after
taking into consideration the views expressed before it by various authorities, that the
need for an applicant to have been an Advocate for at least three years should be done
away with. After taking all the circumstances into consideration, we accept this
recommendation of the Shetty Commission and the argument of the learned Amicus
Curiae that it should be no longer mandatory for an applicant desirous of entering the
Judicial Service to be an Advocate of at least three years standing. We, accordingly, in
the light of experience gained after the Judgment in All India Judges’ case directs to the
High Courts and to the State Government to amend their rules so as to enable a fresh law
graduate who may not even have put in even three years of practice, to be eligible to
compete and enter the Judicial Service. We, however, recommended that a fresh recruit
into the Judicial Service should be imparted with training of not less than one year,
preferably two years.” (emphasis supplied).
(8) While it is the case of the respondents that in obedience to the directives of
Supreme Court they are not insisting that the applicant should have three years standing
at the Bar and it is complete compliance, learned counsel for the petitioner would contend
that the rule insisting that a candidate applying for the post of Civil Judge, Class-II should
have completed 25 years of age would go contra to the directives of Supreme Court since
it is possible that there may be candidates who have passed the law degree but they are
below 25 years of age, may be even 21, 22 or 23.
(9) If we carefully peruse the judgment of the Supreme Court of India in the case
referred (supra) it could be seen that the Supreme Court directed all the High Courts and
the State Governments to amend their Rules so as to enable a fresh law graduate to be
eligible to apply for the post of Civil Judge, Class-II. It is not the case of the respondents
that a student cannot obtain a law degree before he completes 25 years of age. All that
they have stated in the reply is that generally a student completes law graduation during
his 23rd/24th year and thereafter he prepares for the competitive examination and by that
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time he will be 25 years of age. If the rule is allowed to stand, then a person who secures
a law degree at the age of 21 will have to wait for four years to become eligible to apply
for a post in Lower Judicial Service. That being so, fixing minimum of 25 years of age
cannot be said to be not contra to the directions given by the Supreme Court. Once we
come to such a conclusion, the Chhattisgarh Lower Judicial Service (Recruitment and
Conditions of Service) Rules, 1994 fixing 25 years as the minimum age [Rule 7(b)] has to
be quashed. In the result, Rule 7(b) of the Chhattisgarh Lower Judicial Service
(Recruitment And Conditions of Service) Rules, 1994 in so far as fixing minimum age as
25 years is hereby quashed and consequently it has to be declared that even those who
have not completed 25 years, but have obtained a law degree of any recognised
University can apply.
(10) Consequently, we direct the second respondent to make necessary
publications prominently in the newspapers etc., as was done earlier referring to the
earlier publication (19-08-2004) and informing the public that even persons who have not
completed 25 years of age, but, possessing a law degree from any recognised University,
can apply and for which purpose two weeks’ time from the date of such advertisement
should be granted. In the said advertisement it must also be made clear that the
candidates who have applied already, need not apply again and their application already
made will also be considered taking the age limit as on 1st January 2005.
(11) In the result, the writ petition is allowed.
***
109
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION NO.3701/2005
D.D. 12.9.2005
Hon’ble Mr. Justice Satish K.Agnihotri Smt. Vijaya Dayal ... Petitioner Vs. Chhattisgarh Public Service Commission & Others ... Respondents Recruitment – Whether number of vacancies advertised can be increased after the issue of Employment Notification and during the process of selection? – Yes. In Employment Notification dated 19.8.2004, 30 vacancies of Civil Judge Class-II were advertised for recruitment with a clause that the number of vacancies would be subject to variation – Petitioner applied in response to the said notification – Written Examination was held on 15.2.2005 – Pursuant to further requisition of the High Court to increase the number of vacancies from 30 to 61 P.S.C. intimated the candidates through notification dated 15.2.2005 that the number of vacancies was increased from 30 to 61 as per the clause contained in the original notification – Result of the written examination was declared on 19.2.2005 and interview process was commenced from 12.9.2005 – Petitioner who was unsuccessful in the written examination and failed to become eligible to appear for the interview filed this Writ Petition on 4.8.2005 seeking cancellation of the notification dated 15.2.2005 – High Court dismissed the Writ Petition. Held: When the petitioner had appeared at the examination without protest and having failed in the examination, the petition challenging the examination should not be entertained and the petitioner is not entitled to any relief. Further held: The first notification dated 19.8.2004 clearly provided for variation clause that number of vacancies would be subject to variation. Therefore, there is no illegality or discrimination and the process of selection for 61 posts of Civil Judges Class-II is valid and legal. Cases referred: 1. (1997) 4 SCS 426 – University of Cochin Vs. N.S.Kanjoonjamma & Ors. 2. (1998) 3 SCC 694 – Union of India & Anr. Vs. N.Chandrasekharan & Ors. 3. AIR 1998 SC 3268 – Roshni Devi & Ors. Vs. State of Haryana & Ors. 4. (2000) 2 SCC 615 – Suneeta Aggarwal Vs. State of Haryana & Ors. 5. (2001) 6 SCC 380 – All India SC & ST Employees’ Association & Anr. Vs. A.Arthur Jeen & Ors.
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6. AIR 2001 SC 3757 – Sri Kant Tripathi & Ors. Vs. State of U.P. & Ors. 7. (2002) 6 SCC 127 – Chandra Prakash Tiwari & Ors. vs. Shakuntala Shukla & Ors. 8. (2002) 10 SCC 269 – Suvidya Yadav & Ors. vs. State of Haryana & Ors.
ORDER 1. The present petition filed under Articles 226/227 of the Constitution of India
impugns the advertisement dated 15.2.2005 (Annexure P/3) whereby number of
vacancies of the Civil Judge Class-II has been increased from 30 to 61, as being illegal,
discriminatory and unconstitutional.
2. The undisputed relevant facts, in brief, are that the petitioner made an application
for appointment to the post of Civil Judge Class-II pursuant to the advertisement
No.02/2004/Examination dated 19.8.2004 (Annexure P/1). In the said advertisement,
notified vacancy of Civil Judge Class-II was 30. The said advertisement further provided
that the number of vacancies would be subject to variation. On the basis of the
requisition sent by the Law and Legislative Affairs Department, Govt. of Chhattisgarh,
number of vacancies of Civil Judge Class-II was increased to 61, keeping in view the
availability of the vacancies upto December, 2005, as informed by the Registrar General
of the High Court vide Memorandum No.510/Confdl./2004/II-3-7/2002, Bilaspur, dated
28th December, 2004 to the effect that “there will be further requirement of 31 or more
Civil Judges Class-II by the end of next year” i.e. 2005. Accordingly special notice was
published on 15th February, 2005, which is impugned in this petition, informing that the
posts of Civil Judges Class-II would be 61 in place of 30. The respondent No.2 on the
basis of the requirement of Civil Judges, Class-II proceeded with the selection process.
The written examination for selection of the candidates for interview and thereafter for
appointment to the post of Civil Judge Class-II took place on 15.2.2005 and the result of
the said examination was declared on 19.2.2005. The Respondent No.1 and 2 are to
initiate interview process from 12.9.2005. The petitioner finding herself unsuccessful in
the result declared on 19.2.2005, has filed the instant petition on 4.8.2005 praying that the
respondents be directed to cancel the advertisement dated 15.2.2005 relating to 31 posts
of Civil Judge Class-II which was increased later on.
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3. Learned counsel for the petitioner, Shri T.K.Tiwari submitted that there should
have been separate examination for enhanced 31 vacancies to provide one more
opportunity to the petitioner and as such the same was violative of Articles 14 and 16 of
the Constitution of India. It was further contended that the respondents No.1 and 2 have
no authority to increase number of vacancies of Civil Judge Class-II from 30 to 61, once
it has been advertised that the number of vacancies would be 30.
4. Learned counsel for the petitioner, next, submitted that the Chhattisgarh Lower
Judicial Service (Recruitment and Conditions of Service) Rules, 1994 does not provide
for variation of number of posts after the vacancy has been notified in the advertisement.
5. Learned counsel for the petitioner next submitted that the petitioner was denied
the opportunity of appearing again if there was no second examination process for the
enhanced number of vacancies of 31 Civil Judge Class-II, as the petitioner would became
over age.
6. Mr. Abhishek Sinha, learned counsel appearing for the Respondents No.1 and 2 in
reply submitted that there was variation clause in the first advertisement dated 19.8.2004
to the effect that the number of vacancies is subject to variation. The petitioner having
been applied pursuant to the said notification dated 19.8.2004 and having appeared in the
written examination, has no right to challenge the variation clause to the extent that there
was no provision under Rules to provide for variation clause in the advertisement.
Learned counsel further submitted that the petitioner, having appeared in the examination
held on 26.12.2004 and remained unsuccessful in the result declared on 19.2.2005, is
estopped from filing this writ petition and this writ petition should not be entertained on
this ground alone.
7. Next contention of learned counsel for the Respondents No.1 and 2 is that the
petitioner having come to know on 19.2.2005 that she has been unsuccessful in the
written examination waited till August, 2005 when she filed the instant petition on
4.8.2005 with the sole motive to defeat the process of interview for selection to the posts
of Civil Judge Class-II. It is clearly evident that there was no reason and she had also not
112
explained, as to why the petitioner waited till August 2005 for filing writ petition when
admittedly the interview is to commence from 12.9.2005.
8. Learned counsel for the Respondents No.1 and 2 further submitted that there is no
violation of Articles 14 and 16 of the Constitution of India, as alleged by the petitioner, as
there is no discrimination or arbitrariness, and the corrigendum was issued at the earliest
possible i.e., 15.2.2005, on the basis of the variation clause mentioned in the original
advertisement dated 19.8.2004, which was applicable to all the candidates who had
applied for the examination. The petitioner as well as other candidates have more
chances of success in view of the increase in number of vacancies from 30 to 61.
Learned counsel prays for dismissal of the writ petition with costs.
9. Shri P.S.Koshy, learned Deputy Advocate General, with Shri Vivek Sharma,
learned Panel lawyer appearing for the Respondent No.3/State, adopts the submissions
made by learned counsel for the Respondents No.1 and 2.
10. In the case of Sri Kant Tripathi and others Vs. State of U.P. & others, A.I.R. 2001
S.C. 3757, cited by learned counsel for the petitioner, the Supreme Court while
considering Rule 8 of the U.P. Judicial Service Rules (1975) held as under:-
(direction No.7)
“For all future appointments, the High Court must take steps to fill the vacancies of every recruitment year during the year itself. The High Court must determine the vacancies not only on the basis of the actual vacancies on the date of such determination but also take into account probable vacancies by reason of superannuation of officers in the next two years from that date. Once the vacancies are so determined, the percentage of the vacancies available for recruitment by direct recruitment and by promotion must be fixed and steps taken for filling up the same expeditiously. The number of vacancies available for the direct recruits quota must be advertised without any variation clause. The Select List prepared both for direct recruits as well as for promotees prepared by the High Court will be operative only till the next recruitment commences with the fixation of the vacancies for the next recruitment year.”
11. In the present case when the advertisement was issued for selection of Civil Judge
Class-II it was found that by the end of the year 2005 the total requirement of Civil
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Judge-II would be 61, as such in the recruitment process which was on, number of
vacancies was increased from 30 to 61.
12. The case of Roshni Devi & Others Vs. State of Haryana & others, A.I.R. 1998
S.C. 3268, cited by learned counsel for the petitioner is not applicable to the facts of the
present case.
13. In the case of University of Cochin Vs. N.S.Kanjoonjamma & Others (1997) 4
S.C.S. 426, cited by the counsel for the Respondents No.1 and 2, the Supreme Court held
as under:-
“4. ........ In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure..........”
14. In the case of Union of India & another Vs. N.Chandrasekharan & Others (1998)
3 S.C.C. 694, cited by learned counsel for the Respondents 1 and 2, the Supreme Court
held as under:-
“13. .............. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report...........”
15. In the case of Suneeta Aggarwal Vs. State of Haryana & Others (2000) 2 S.C.C.
615, cited by learned counsel for the Respondents No.1 and 2, the Supreme Court held as
under:-
“4. .......... Not only did she apply for the post, but she also appeared before the Selection Committee constituted consequent upon readvertisement of the post and that too without any kind of protest, and on the same day she filed a writ petition against the order of the Vice-Chancellor declining to accord his approval and obtained an ad interim order. In the writ petition she also did not disclose that she had applied for the post consequent upon the second advertisement. The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are
114
of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice Chancellor......”
16. In the case of Chandra Prakash Tiwari & others Vs. Shakuntala Shukla & others,
(2002) 6 S.C.C. 127, cited by learned counsel for the respondents No.1 and 2, the
Supreme Court held as under:-
“32.............. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla v. Akhilesh Kumar Shukla a three Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.” “33. Subsequently, the decision in Om Prakash stands followed by a later decision of this Court in Madan Lal v. State of J & K wherein this Court stated as below: (SCC p.493, paras 9-10) “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful s a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.”
17. In view of the foregoing decisions of the Supreme Court, it is well settled that
when the petitioner had appeared at the examination without protest and having failed in
the examination, the petition challenging the examination should not be entertained and
the petitioner is not entitled to any relief. In the present case the petitioner in fact
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appeared in the examination, knowing very well that the number of vacancies of the posts
of Civil Judge Class-II has been increased from 30 to 61 and having failed in the said
examination in the result declared on 19.2.2005 filed the present petition after a gap of
5½ months to defeat the process of examination and selection for appointment to the
posts of Civil Judge Class-II. Thus, the petitioner is not entitled to any relief in the facts
and circumstances of the case.
18. In the case of All India SC & ST Employees’ Association & another Vs. A.Arthur
Jeen & Others, (2001) 6 S.C.C. 380 the Supreme Court held as under:-
“12. Similarly the contention that the vacancies to be filled up could not be increased to 917 from 330 originally notified without there being subsequent notification is untenable in view of the changed situation as explained above. No fault can be found with the direction of the High Court to issue appointments only to available vacancies on merit out of the candidates included in the panel of selected candidates following rules of reservation and that too reserving 3% seats to Physically handicapped instead of 2%. 382 vacancies would be available upto March 2002 possibly as of no all the 382 candidates may not be given appointment; the appointments may be given up to 330 or less. Further, the purpose of issuing notification and giving due publicity is to provide opportunity to as many eligible candidates as possible. Employment Notification No.1 of 1995 was issued on 7.9.1995 and the decision was taken to increase the posts on 17.5.1996, the time gap was hardly 8 months; as many as 58,675 made applications and 32,563 were called for interview. It was quite probable that all candidates eligible and interested including a large number of local candidates, applied for the posts. The time gap of about 8 months between the original notification and the decision to increase posts not being much, it cannot be said that many of the eligible candidates were deprived of applying for the posts looking to the requirements of eligibility. As already stated above, in the changed situation only 382 posts are to be filled up upto March 2002. The selected candidates are to be appointed on the basis of merit following rules of reservation applicable to different categories. The process of selection was long drawn and the candidates were made to appear for interview twice. The candidates and their families have been waiting for a long time from 1995 with great hope of getting jobs. Enormous money and man-hours have been spent in completing the process of selection in preparing the panel of selected candidates. In this view there was no justification for the Tribunal to quash the entire panel of selected candidates.”
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19. In the case of Suvidya Yadav & Others Vs. State of Haryana & Others (2002) 10
S.C.C. 269, wherein the facts were similar to the effect that the advertisement stated that
an advertisement issued by the Haryana Public Service Commission on 16.2.1991 clearly
stated the number of posts would be subject to variation to any extent. Initially, the
number of posts advertised was 18 but on the requisition of the State Government, the
number of posts was increased to 30. Accordingly the Public Service Commission made
recommendations for appointment on 30 posts. The Supreme Court after considering
held as under:-
“7.................We see no bar on the power of the Commission in recommending 30 names, which was the subject matter of challenge before the High Court. In fact the very judgment itself on which the learned Single Judge has relief upon in para 10 indicates the said position. Accordingly we set aside the impugned order passed by the learned Single Judge and affirmed by the Division Bench in appeal and hold that the recommendations made by the Commission are in accordance with law and therefore all the 30 names recommended are entitled to be appointed.”
20. The present case is squarely covered by the decision of the Supreme Court in the
case of Suvidya Yadav (supra).
21. The first advertisement dated 19.8.2004 clearly provided for variation clause that
number of vacancies would be subject to variation. On the basis of the requisition made
by the State Government that the requirement of Civil Judges Class-II by the end of 2005
would be 31, a second advertisement was issued informing to all the applicants that they
would be considered for 61 vacancies of Civil Judge Class-II. There is no illegality or
discrimination and the process of selection for 61 posts of Civil Judges Class-II is valid
and legal.
22. The contention of learned counsel for the petitioner that she would have got one
more opportunity, had a new process of selection for increased 31 posts, be taken up
separately is untenable and rejected.
23. For the reasons stated above, the petition is dismissed. No order as to costs.
***
117
GUJARAT PUBLIC SERVICE COMMISSION
118
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO.485 OF 2002 & CONNECTED CASES
D.D. 11.12.2002
Hon’ble Mr. Justice R.K.Abichandani And
Hon’ble Mr. Justice Sharad D.Dave K.D.Vohra Vs. Kamleshbai Gobarbhai Patel
Appointment – Appointment order issued to selected candidates after terminating the services of Ad hoc Lecturers
GPSC made selection to 475 posts of Gujarat Educational Services Class-II (Collegiate Branch) in Government Colleges in different subjects as per rules – As there was delay in issuing appointment orders to the selected candidate they filed writ petitions before the High Court – The Ad hoc Lecturers who were required to be replaced by GPSC selectees also moved the High Court – The High Court allowed the writ petitions of the GPSC selectees and rejected Special Leave Applications of Ad hoc appointees – Aggrieved by the same Ad hoc selectees filed these Appeals – Ad hoc Lecturers were appointed and they were to hold the post till the availability of GPSC selectees - The High Court in these Appeals after considering several aspects of Ad hoc appointment and regular selection has rejected the Appeals filed by the Ad hoc lecturers.
Held:
Ad hoc Lecturers could have been continued only for one year without consulting the PSC and their continuance for a long period beyond one year without consulting PSC was contrary to Gujarat Exemption from Consultation Regulations, 1960. It is further held that if the ad hoc employees who continued as ad hoc beyond one year are to be regularised or deemed to have been regularised that would frustrate the very process of selection and appointment as per the mode and procedure prescribed by the statutory rules and as would happen in the present case, no posts would be left for the regularly selected persons because two persons cannot hold the same post on a regular basis. It is further held that deliberate and consistent failure on the part of the executive to consult the PSC in the matters in which it is constitutionally obliged to consult, notwithstanding that the advice may not be binding on it, would bring about a situation in which it would appear that the governance of the State is not carried on in accordance with the provisions of the Constitution, by on one hand paralysing a constitutional body like the PSC from functioning and on the other, short circuiting the provisions which require regulations under the proviso to clause (3) to Article 320 to be framed and to be laid before the Legislature which can modify them for deciding in which specified matters consultation with PSC is to be dispensed with.
119
Cases referred: 1. [1972] 1 SCC 409 - R.N.Nanjundappa v. Thimmiah 2. (1985) 2 SCC 604 – G.S.Lama v. Union of India 3. (1986) 2 SCC 157 – Narendar Chadha v. Union of India 4. AIR 1987 SC 478 – Rattan Lal v. State of Haryana 5. AIR 1987 SC 1554 – State of Bihar v. Kripala Shanker 6. AIR 91 SC 295 - H.C.Puttaswamy v. Hon’ble the Chief Justice of Karnataka High
Court 7. 1992 Supp. (1) SCC 272 – Keshav Chandra Joshi v. Union of India 8. AIR 1994 SC 1808 – J&K Public Service Commission v. Dr.Narinder Mohan 9. 1995 Supp. (2) 407 – State of Maharashtra v. Sanjay Thakre 10. AIR 1995 SC 974 – State of Orissa v. Dr. Pyari Mohan Misra 11. (1996) 10 SCC 565 – E.Ramakrishnan v. State of Kerala 12. AIR 1996 SC 2775 – Dr. Surinder Singh Jamwal v. State of Jammu & Kashmir 13. (1997) 1 SCC 350 – P.Ravindran v. Union Territory of Pondicherry 14. AIR 1998 SC 375 - Government of Orissa v. Hara Prasad Das [1998] 6 SCC 165 – State of M.P. v. Dharam Bir 15. AIR 1999 SC 152 – Dinkar Anna Patil v. State of Maharashtra 17. AIR 2001 SC 606 – State of Karnataka v. B.Suvarna Malini
ORDER
1. This group of appeals has been preferred by persons who are appointed as ad hoc
lecturers pending the availability of the regular recruits through the Gujarat public
Service Commission (GPSC for short), to the post of lecturer, Gujarat Educational
Services, Class II, (Collegiate Branch), against the common judgment and order dated
15th July 2002 passed by the learned single judge allowing the Special Civil Applications
No.2395 of 2001 and other cognate matters which are filed by the candidates selected
through the GPSC as per the Recruitment Rules applicable to the said post and rejecting
the Special Civil Application No. 4396 of 2001 and other cognate matters which were
filed by the ad hoc appointees, who were required to be replaced by the GPSC selectees.
2. In Special Civil Application No. 2395 of 2001 and its cognate matters, which
were filed by the direct selectees through the GPSC, it was prayed that the petitioners
should be appointed to the posts of lecturer as per the recommendation of the GPSC. The
GPSC had issued an advertisement on 15th June 1990 for recruitment to the posts of
lecturer, Gujarat Educational Services, Class II, (Collegiate Branch) to the Government
120
Colleges in different subjects in respect of 475 vacancies which had arisen and many of
which were being manned by the ad hoc appointees over a long period of time.
According to these petitioners, they were duly selected by the GPSC and recommended
for the post, and that, as per the extant instructions of the Government, the appointment
pursuant to the GPSC recommendations could not have been delayed beyond the period
of six months. It was pointed out that 300 Lecturers were continued on ad hoc basis
subject to the availability of the candidates selected through the GPSC, but, for the
reasons best known to the Government, these regularly selected candidates were not
issued appointments. Among these regularly selected candidates, there were also some
candidates who while working on ad hoc basis came to be selected by the GPSC. Some
of the ad hoc lecturers locally appointed were drawn from government schools from their
Class III posts in which their lien was retained, while the rest were locally appointed
direct on ad hoc basis. All the ad hoc appointees knew that they were to hold the post
only till the availability of the GPSC candidates. Despite the PSC asking the Government
to explain why the appointments were not being made pursuant to its recommendation,
the Government was delayed the matter. These direct selectees therefore prayed for being
appointed pursuant to their selection by the GPSC. As the matter now stands,
appointment orders of 132 direct selectees were issued on 10th November 2001, and
further appointments of 210 such GPSC selectees have been issued on 9th October 2002
after the decision of the learned single Judge. It is stated that many of these have joined
their posts except 123 direct selectees who, though appointed, are yet not posted in view
of the interim orders which operated in favour of the ad hoc appointees.
2.1 It appears that, during the pendency of Special Civil Application No.2395 of
2001, which was filed by direct selectee, the present three appellants of the Letters Patent
Appeal No. 485 of 2002 and three other ad hoc appointees had, at their instance, been
impleaded as party respondents No.5 to 10. The original respondents Nos.5, 6 and 8 are
the appellants of the Letters Patent Appeal No. 485 of 2002. All other Letters Patent
Appeals are by such ad hoc appointees.
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3. In Special Civil Application No. 2992 of 2001 and other cognate matters, the
contentions raised by the ad hoc appointees were almost common in all their petitions and
their main grievance was that, though initially they were appointed on ad hoc basis, their
appointments having been made after being selected by the local Committee constituted
as per the resolution / circular dated 21st December 1992, which comprised of Joint
Director of Education or Deputy Director as well as Principal and Lecturer of the
respective college and one expert from amongst the panel of lecturers, in accordance with
the requirements of the Recruitments Rules as regards the educational qualifications and
they, having been continued for a number of years, have acquired a right to continue on
the post of Lecturer. Their appointments should be considered to have been duly
regularised and they have a better right to hold the said post over the direct selectees.
According to them, their appointments were made on the basis of merit after they were
tested by the interview Committee constituted under the aforesaid circular. It is
contended by them that, since they had a long teaching experience and have been
teaching in various colleges without any adverse reports against them, any action of
discontinued them for accommodating the fresh candidates was viorative of their
fundamentals rights guaranteed by Articles 14 and 16 of the constitution. It is also their
case that the Government had regularized similar temporary employees as Doctors in
Ayurvedic Colleges, as also the employees of the Narmada & Water Resources
Department, without being required to undergo the process of selection through the
GPSC. Denial of similar treatment to these ad hoc appointees was, therefore, violative of
their fundamental right to equality guaranteed by Articles 14 and to 16 of the
constitution, as also their right to life under Article 21 of the Constitution. The ad hoc
lecturers therefore prayed that they should be regularized as lecturers.
3.1 On 15th July 2002, the learned Single Judge, while allowing the petitions of the
direct selectees, rejected the prayer of the appellants for continuing the service, holding
that they would be treated as surplus but not entitled to any regular salary or financial
advantage.
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3.2 The case of the appellants of Letters Patent Appeal No.540, 558 to 561 of 2002
and other matters was that they were interviewed by the duly constituted Staff Selection
Committee in January 1990 and appointed as Lecturers in Electronics in the Government
Colleges. They applied pursuant to the advertisement dated 15th June 1998 issued by the
Gujarat Public Service Commission for recruitment of Lecturers and they received which
were rejected on the ground that did not posses the prescribed educational qualification.
In May 1999, they represented to the Government for regularizing their ad hoc
appointments, but without any response. They apprehended that the GPSC selectees may
be appointed in their place and their service would terminated and therefore, they filed
the petitions from which these appeals arise. They also relied upon the affidavit-in–replay
dated 14th June 2001 filed on behalf of the State Government claiming to be regularised
as Lecturers from the date of their initial ad hoc appointment notwithstanding the change
in the stand by the Government in its subsequent affidavit dated 30th August 2002.
3.3 The Letters Patent Appeal No. 818 of 2002 is preferred by the ad hoc appointee
who had approached the Court for regularization on the ground that he had put in 11
years of service as ad hoc appointee. It was his case that though he was desirous of
getting appointment through the PSC, no selection process was held by the State
Government for more than 10 years. His petition in which he raised contentions similar to
raised by the other ad hoc appointees, also came to be rejected as the learned Single
Judge had rejected the grounds similar to those urged in other Appeals.
3.4 Letters Patent Appeal No. 492 of 2002 is filed by the original respondent No.7,
who came to be added in Special Civil Application No. 2395 of 2001 along with, other
five persons as respondents Nos. 5 to 10. In this appeal, contentions identical to those
raised in other appeals by the ad hoc appointees have been raised and hence, they need
not be repeated.
4. The stand taken up by the State Government in the affidavit-in-replay dated 27th
April 2001 filed in the Special Service Application No. 2395 of 2000 was that the post of
lecturer in Gujarat Educational Services (Collegiate Branch) are Class II posts and were
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required to be hired in by the consultation with the GPSC. However, in accordance with
the provisions contained in the provision to Regulation 3 of the GPSC (Exemption from
Consultation) Rules, 1960, appointment to such posts can be made by the Competent
Authorities for a period of one year without such consultation. Since considerable time
elapses in getting recommendation from the GPSC of such candidates, the ad hoc
appointments have been made from time to time so as to ensure that the interest of the
large number of students was not affected adversely for the reason of non-availability of
teaching staff. It was stated that several candidates selected by the local selection
committee constituted by the Commissioner of Higher Education under its circular dated
21-12-1992, came to be appointed on ad hoc basis. Similarly, several candidates who
were working in the government schools and associated with teaching were also
appointed on ad hoc basis keeping their experience and educational qualification in view,
as per the circular dated 21-12-1991 issued by the Commissioner of Higher Education in
this regard. The above two circulars are produced at Annexure “I” and “II” to the said
affidavit-in-replay. It was stated that, as per the scheme of the ad hoc appointments
services of all such ad hoc appointees were to be terminated on completion of academic
term. However, such ad hoc appointees had obtained interim orders from time to time
from the Courts against such termination and therefore, they were continued in service on
ad hoc basis. Ultimately, it came to be decided in a group of petitions on 12-5-1999
(Special Civil Application No. 841 of 1998 and other cognate matters decided by the
Hon’ble Mr. Justice S.R. Resnotej, that such ad hoc appointees were to be continued only
till availability of the candidates recommended by the GPSC. A group of appeals
preferred by the ad hoc appointees (Letters Patent Appeal No. 1057 of 1999 and other
cognate appeals) against the said decision dated 12-5-1999 came to be disposed on by the
Court on 29-9-1999, and the appellants were permitted to withdraw their original
petitions, without reserving any liberty for them to file fresh petitions and to make
representations. The appeals were disposed of on the ground that they did not survive in
view of the withdrawal of the petitions. It was stated that, pursuant to the said decision,
which required the representations of these persons to be considered, they had made the
representations, which were considered by the Government. In the meanwhile, to fill up
the posts of lecturers available in the different subjects, necessary requisitions were sent
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to the GPSC in the year 1997, with reference to which the Commission issued an
advertisement and on completion of process of selection, have recommended the names
of selected candidates to the Government for appointment. It was also stated that, in view
of the Government having accepted the package of University Grant Commission
recommendations in respect of all the teaching staff, it had undertaken the task of
reviewing the strength of the sanctioned establishment of lecturers as per the norms of the
UGC guidelines. It was then stated that the Government was making all possible
endeavors to keep balance between those who have been directly selected through the
GPSC and those who working on ad hoc basis and who are required to be considered as
per the guidelines issued in group of appeals, and that, appropriate action would be taken
when decision was reached. It was also stated that all possible endeavor was made by the
Government to accommodate and appoint the persons selected through the PSC though
such selected person had no right to seek a mandamus for appointment.
4.1 In the affidavit-in–replay filed on 14th June 2001, in context of the direction of the
High Court to decide the representation of the ad hoc lecturers as early as possible and, in
any case, before 10th June 2001, which was issued on 4-5-2001 on the basis of the earlier
directions given in Letters Patent Appeal No. 1057 of 1999 on 29-9-1999, the
Government had taken a decision that the services of all the 330 persons appointed as
lecturers in Government Colleges on ad hoc basis, from time to time, by the
Commissioner of Higher Education pursuant to their selection by the local Selection
Committee constituted under the circular of 21-12-1992 should be regularized from the
date of their appointment as such, as was done in cases of Medical Officers (Ayurved)
by the Health and Family Welfare Department by its resolution dated 4-10-1999. It was
further stated that it was decided that, for regularizing the services of all such ad hoc
appointees, a reference to the GPSC should be made to obtain its approval as a special
case. All the 64 persons who had lien on the posts in respective schools from which they
were drafted and appointed as ad hoc lecturers in Government Colleges to be repatriated
to their original post. It was also decided that, after working out the subject-wise number
of posts of lecturers in Government Colleges in view of new workloads on account of
revision of UGC scales and after accommodating the ad hoc appointees, if clear posts of
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lecturers of the respective subjects become available, the candidates recommended by the
GPSC were to be considered for appointment as per their rank in the select list. It as
further decided as stated in the said affidavit-in-replay, in the eventuality of the ad hoc
appointees being declared surplus, their names would be registered by the Commissioner
of Higher Education and they would be adjusted by giving appointments on the posts that
may be available on account of retirement, resignation, promotion, death etc. in future.
4.2 In the affidavit-in-replay dated 30th August 2001, the Government, however, took
a stand different from that which was taken in its affidavit dated 4th June 2001. it was
stated that a High Level Committee held its meeting on 16th August 2001 to consider the
issue relating to ad hoc lecturers / regular lecturers selected through the GPSC in the
Education Department and after the due deliberations over various issues and through
examination of the background of the case and various orders passed by the High Court
in various matters, final as well as interim, and also keeping in view the legal provisions
and taking into consideration the representations submitted by the ad hoc employees, the
Committee had come the conclusions whish are narrated in paragraph 3 of the said
additional affidavit-in-replay. Accordingly, it was decided that the candidates duly
recommended by the GPSC shall be given appointments by the State Government. It was
decided that the appointments may be given to the candidates recommended by the GPSC
in various subjects against clear vacancies now worked out as per the UGC guidelines. It
was also decided to repatriate the ad hoc appointees working in Government Colleges,
back to their respective cadres in which they were having their lien, subject to the
vacation of the stay order in this regard by the High Court. It was noted that, out of 70
appointees having such lien, 11 were selected by the GPSC and 4 could be continued
against clear vacancies available after accommodating the GPSC selectees and ad hoc
appointees. But the repatriation could only be made if and when the High Court vacated
status quo orders. The Committee further noted that, out of 341 lecturers who were
presently working on ad hoc basis, 77 were already selected by the GPSC. It was found
that, on account of availability of vacancies as per permissible strength and after
accommodating GPSC selectees, several posts continued to be available against which
122 ad hoc lecturers could be continued. It was noted that in a few subjects, appointments
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were in excess of the permissible posts which had been worked out as per the UGC
norms, and that the services of 22 ad hoc appointees will have to be declared surplus with
varying length of service in different subjects, on the principal of “last come first go”.
The Committee further noted that for giving appointment to all 335 GPSC selected
candidates, services of 120 ad hoc appointees will have to be declared surplus forthwith.
It was observed that, in view of the Government policy to start Government Colleges in
tribal taluka where there was no college available, four new Government colleges were
started this year, and similarly, some more colleges were likely to be opened next year
and keeping in view these aspects, the Government had taken a lenient view with regard
to regularization of ad hoc appointees which could be considered by the State
Government under Article 309 of the Constitution, as one-time measure. It was then
stated in the affidavit that, in view of the policy decision taken by the High Level
Committee, it was decided to repatriate the ad hoc appointees working in the Government
Colleges, and lien, back to their respective cadres subject to the vacation of the interim
orders of the High Court so as to enable the state to implement its policy decision. It was
also stated that, pursuant to the said decision, order of appointment in respect of 95
candidates selected by the GPSC were issued on 27th August 2001 against clear
vacancies. The petitioner of Special Civil Application No. 2395 of 2001 who was
selected by the GPSC was one such candidate who was given appointment.
4.3 In the further affidavit dated 18th October 2001 in Special Civil Application No.
2992 of 2001, it was stated some of the petitioners had withdrawn their petitions and
therefore could not approach the High Court again, on the principal of resjudicata.
Statement at Annexure “A” of that affidavit-in-replay showed the details of such persons
who had unconditionally withdrawn their petitions.
5. In the group of Special Civil Application No. 841 of 1998 and 17 other matters,
including those which where filed in the year 1990 by the ad hoc lecturers who were
apprehending termination of their services on the ground that the GPSC selected
candidates would replace them, the learned Single Judge, by his Judgment and order
dated May 1999, holding that in the eventuality of the availability of the selected
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candidates, these petitioners had no right to continue on the post and immediately joining
of the selected candidates, the respective petitioner would have relinquish the post,
directed the GPSC to complete selection process in different subjects for the post of
lecturers within six months from the date of the receipt of the order. The Court observed
that ad hoc the temporary appointments give rise to manifold litigation and a sense of
instability in service resulting in frustration and dissatisfaction amongst the appointees. It
was observed that the time has come where the Court has to take appropriate steps and
measures to see that the State of Gujarat, its functionaries and officers work within the
framework of the Constitution as well as to see that, because of inaction or omission,
unnecessary and avoidable litigation may not come before the Court. In Letters Patent
Appeal No. 1057 of 1999 and cognate appeals, these petitioner who had appealed against
the said order of the learned Single Judge withdrew their petitions without reserving any
liberty to file fresh petitions on the same cause of action. This is clear from the order
dated 29-9-1999 passed by the Division Bench holding that the Letter Patent Appeal did
not survive and allowing the original petitioners to make a fresh representation in the
matter. On the basis of withdrawal of these petitions, it was rightly urged that, since no
liberty was reserved by these ad hoc lecturers who had filed the earlier petitions and are
also amongst those had filed the present petitions from which these appeals have arisen,
the present petitions were not maintainable at their instance on the same cause of action.
However, there were other ad hoc employees who had filed petitions for the first time and
same question arose in their case. Therefore, having regard to the general nature of the
disputes involved, it would not be appropriate to shun consideration of the issues on any
such technical ground and the decision that would be taken would obviously apply to all
the similarly situated persons.
6. There was yet another group of petitions filed by ad hoc appointees as lecturers
being Special Civil Application No. 2843 of 1971 and other cognate matters which came
to be decided by Hon’ble Mr. Justice M.R. Calla on 9th March 2001. In all those petitions
grievance was raised by the ad hoc lecturers that appointments were being given for a
limited period till the end of the academic term and though no candidates were yet
selected through the GPSC, they were not being given salary for the vacation period
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though they were being re-engaged as ad hoc employees on the commencement of the
new academic term. In that petition, the learned Single Judge issued certain direction in
paragraph 15 of the judgment which included that direction that the services of such ad
hoc employee shall not be terminated until a regularly selected candidate was available
for appointment in the concerned subject. Direction No. (ii) is material to be noticed in
the present context and therefore, it is reproduced hereunder “(ii) if regularly selected
candidates are available, they will not be made to wait and such regularly selected
candidates shall be given appointment and the ad hoc appointees shall have to make room
for them. Of course in doing so, the Government would follow the order of seniority
according to the length of the service of the ad hoc appointees in the respective Branch /
Specialty / Subject. In other words, amongst the ad hoc appointees in a given subject or
specialty or Branch, the candidate who was appointed at the earliest point of time will be
the last candidate to be replaced”.
6.1 The said Judgment and order dated 9th March 2001 of the learned Single Judge
has not been challenged and therefore, the afore said directions remained and operative
and binding.
6.2 In the present group of matters, namely, Special Civil Application No. 2395 of
2001 and other petitions, which were filed in 2001, an order was made on 4th May 2001,
by Hon’ble Mr. Justice M.S. Shah, taking note of the earlier order of the Division Bench,
dated 29-9-1999 in Letter Patent Appeal No. 1057 of 1999 and cognate appeals, by which
the ad hoc lecturers were allowed to file representation to the Government while
permitting them to withdraw their petitions, gave a direction that the State Government
should decide the representations of ad hoc lecturers of their association as early as
possible, in any event by 10-6-2001. The above directions will have relevance on the
question of appreciating the Government appointing a High Power Committee for
considering the question and taking a decision different from the one which was reflected
in the earlier affidavit of the Government when it was decided to undertake the process of
regularizing the ad hoc lecturers and for that purpose, to refer the matter to the GPSC.
However, before that could be done, the decision of the High Power Committee was
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taken by which the direct selectees were to be given appointments, replacing the ad hoc
lecturers.
7. All the learned Senior Council appearing in these Letters Patent Appeals have
argued their respective appeals and adopted each other arguments. The learned counsel
appearing in Letters Patent Appeal No. 818 of 2002 and 1818 of 2002 and the learned
counsel appearing in Letters Patent Appeal No. 492 of 2002, also adopted those
contentions, pointing out to them individual facts of their case. These contentions of the
learned counsel in all these appeals are as under:
(i) The matter should be viewed in context of higher education and not ordinary
government offices. Therefore, interest of the student community should be kept in mind
while considering whether these ad hoc lecturers who have put in several years of
service, should be regularised by relaxing the rules.
(ii) Both the sides are innocent and it is not as if the ad hoc lecturers are waiting in
qualifications. In fact, they have acquired experience, which gave them an edge over the
fresh GPSC recruits, and therefore, it could in the interest of the student community and
education system to regularize them.
(iii) The GPSC procedure was not started for more than a decade in these ad hoc
appointees were continued in the public interest. Their temporary appointments could
have been made without consultation of the GPSC only for a period of one year, and
therefore, their continuance beyond one year of their initial appointment should lead to an
inference or presumption that the requirement to consult PSC was deemed to have been
relaxed under the power of relaxation vested in the Government under rule 16 of the
Gujarat Civil Services Qualifications & Recruitment (General) Rules, 1967.
(iv) The non-initiation on consultation process for recruitment for a decade resulted in
breakdown of consultation rule and therefore, it should be assumed that the Government
must deemed to have relaxed the recruitment rules and since their initial appointment was
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by selection made by select committee, they should be treated as having been regularly
recruited by the mode of direct selection by such Committee instead of the PSC.
(v) Thirty three of the ad hoc lecturers were not called by the GPSC in the ground that
they were age barred. They should have been given an opportunity to compete by
relaxing their age.
(vi) The State Government had held out a promise that ad hoc appointees will be
regularized and therefore, it was stopped from taking a different stand. There would be
legitimate expectation on the part of the ad hoc employees that they will be continued and
regularized. Regularization should be done, because, the Government has created this
situation.
(vii) Decisions of the Apex Court fall in three categories. The Apex Court has, in some
cases, decided strictly according to the Rules and quashed the appointments, which are
against the rules. In some cases, while holding that the rules of recruitment should be
followed, the Apex Court has not disturbed the appointments on facts, and, in the third
category, directions to regularise the ad hoc employees by exercising power to relax have
been given. According to the learned counsel, instead of relying on a precedent of
particular case, the general trend of all the precedents should be kept in mind and a
precedent should be evolved keeping in view the law laid down by all these decisions.
(viii) The appointments of these ad hoc lecturers were not illegal, but made by adopting
an alternate method devised by the State Government itself, by its circular dated 21st
December 1999, and therefore, there was no back-door entry in the appointments of these
ad hoc lecturers. If an appointment contrary to Rules is continued for many years, the
Court will presume that relaxation power was exercised.
(ix) Consultation with the GPSC was not mandatory and therefore, non consultation will
not vitiate the appointment.
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(x) In case of some ad hoc lecturers, they were held to be ineligible on the basis of higher
qualifications prescribed under the amended rules. It was argued that, in such cases, the
subsequent amendment in the rules could not have been applied to such ad hoc lecturers
who were duly qualified when they were initially appointed as per the then existing
recruitment rules.
(xi) General parameters should be kept in mind whiled deciding the case and these are;
what the justice require, what the law require, the public interest involved, the nature of
default committee by the Government, and the innocent character of the parties.
7.1 in support of their contentions, the learned Senior Counsel for the appellants have
relied upon the following precedents:
(a) Decision of the Supreme Court in State of Haryana V. Piara Singh, reported in AIR
1992 SC 2130 was relied upon for the proposition that the persons who are ad hoc or
temporary employees have a right to claim regularization and the authorities are under an
obligation to consider their case for regularization in a fair manner keeping in view the
principles enunciated by the Court. It will be noticed that while making this observation,
the Supreme Court also held that blanket directions given for regularization cannot be
sustained.
(b) Decision of the Supreme Court in Jakob .M. Puthuparambily Kerala Water Authority,
reported in AIR 1990 SC 2228 was cited to point out that a direction was given for
regularizing the services of the employees who were working on the establishment for
long spells and had the requisite qualification for the job. It was observed that such
employees should not be thrown out but their services should be regularized as far as
possible. It would be noticed that this decision was rendered in context of Rule 9(a)(i) of
the Kerala State & Subordinate Service Rules, 1958 in which it was provided that, where
it is necessary in the public interest, owing to an emergency which has arisen to fill
immediately a vacancy in a post borne on the cadre of a service, class or category and
there would be undue delay in making such appointment in accordance with these rules
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and the Special Rules, the appointing authority may appoint a person, otherwise than in
accordance with the said Rules temporarily. It was held by the Court in paragraph 15 of
the judgment that the rule was not intended to fill a large number of posts in the service
but only those which could not be kept vacant till regular appointments were made in
accordance with the rules. But once the appointments continued for long, the services had
to be regularized if the incumbent possessed the requisite qualification, as was done by
sub-rule 2(e) of rule 9. It was held that if the rule was so interpreted, it seemed clear that
the employees who had been working on the establishment since long and who possessed
the requisite qualifications for the job as obtaining on the date of their employment must
be allowed to continue on their jobs and their services should be regularized. It was held
that if Rule 9(a)(i) was interpreted consistently with the spirit and philosophy of the
Constitution, which was permissible to do, without doing violation to the rule, it followed
that the employees who had served on the establishment for long spells and had the
requisite qualifications for the job should not be thrown out, but their services should be
regularized as far as possible.
(c) Decision of the Supreme Court in Government of Orissa V. Hara Prasad Das, reported
in AIR 1998 SC 375 was cited for the proposition that, mere empanelment or inclusion of
the name in the selection list did not give the direct selectee a right to be appointed, and
that if the government decided not to make further appointments for a valid reason, it
could not be said that it acted arbitrarily by not appointing those whose names were
included in the select list. Whether to fill up a post or not was a policy decision and
unless it is shown to be arbitrary, it would not be open to the Tribunal to interfere with
such decision of the government and direct to make appointments. This matter arose from
a petition filed by those who had appeared in the selection process. The petition was
resisted by the government on the ground that only six posts were notified and no more
posts can be filled up on the basis of selection list.
[d] Decision of the Supreme court in H.C Puttaswamy v Hon’ble the Chief Justice of
Karnataka High Court, reported in AIR 1991 SC 295 was cited to point out that the
Supreme Court while holding that the appointing made by Chief Justice of the High
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Court without consulting the GPSC were not proper, issued a direction that, on
humanitarian ground, all such appointees should be treated as regularly appointed with all
benefits of past service.
[e] Decision of the Supreme Court in Karnataka State Private College Stop-Gap Lecturers
Association v State of Karnataka. reported in AIR 1992 SC 677, was cited to point out
that, in a case where teachers were appointed temporarily by private managed colleges
receiving grant-in aid, sought regularization of their services by invoking principle of
equitable estopple arising from implied assurance due to their continuance, as such, for
years with a break of a day or two every three months, the Supreme Court directed that
the services of such temporary teachers who had worked as such for three years including
breaks shall not be terminated and they shall be absorbed as and when regular vacancies
arise. It was also directed that if regular selections have been made, the government shall
create additional posts to accommodate such selected candidates. In that case, there was
no question of availability of any candidate selected as per the Recruitment Rules framed
under Article 309 of the Constitution through the PSC.
[f] Decision of the Supreme Court in All Manipur Regular Posts Vacancies Substitute
Teachers’ Association v. State of Manipur, reported in AIR 1991 SC 2088, was cited to
point out that, it was observed by the Supreme Court that, if the direct recruitment takes
place on one hand and substituted teachers are also directed to be regularised
subsequently, it would create an enormous problems for the department to accommodate
both the categories of persons. Taking all these factors into consideration, the Court
made an order, earlier, directing the State Government to consider the case of
regularisation of the appellants before making direct recruitment. The Court ordered that
substituted or ad hoc teachers who had put in five years of service or more on the
specified date shall be regularised without pay by the D.P.C. and such regularisation
would be subject to their possessing the required qualifications at the time of their initial
appointment. It was also directed that those who had rendered less than five years service
on the said date, shall be allowed to appear before the DPC for selection and those who
are selected shall be regularised it was also directed that the services of those who did not
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appear before the D P C or could not be selected by the DPC could be terminated unless
their services were required for a further period.
[g] Decision of the Supreme Court in State of Karnataka v B Suvarna Malini reported in
AIR 2001 SC 606 was cited to point out that, in a case where the lecturers appointed by
way of stop gap arrangement had put in 10 to 20 years of service, the Court observed that
such cases involve not only a question of law, but also human problem in as much as
these part-time lecturers had served in different colleges for a long period and treated as
regular servants, and they will not be able to get themselves engaged anywhere else.
Moreover, their experience in teaching will be a great loss to the student community if
they were removed Reliance was placed on paragraph 9 of the judgement in which it was
observed that, though the selection of such part-time lecturers was not made by the Public
Service Commission, yet there was a process of selection and it appeared that unqualified
people were not appointed as part-time lecturers. Part-time lecturers having been formed
a class by themselves and for some reasons or the other, they having been deprived of the
benefits of the earlier directions of the Court on account of inaction on the part of the
State Government, the matter was re-examined by a Committee of Experts as to how best
their services could be utilized without diluting the quality of teaching. Earlier in the
judgment, it was noticed that High Powered Committee considered the problems of the
part time lecturers in grant detail and bearing in mind the relevant decision on the
question, made the recommendation for their absorptions. It was recommended that
special recruitment rules will have to be framed by the State Government in exercise of
powers conferred on it by the Karnataka State Civil Services Act, 1978 for the purpose of
absorption. Section 8 of that Act gave rule making powers to make rules to carry out the
purposes of the Act. The absorption rules were framed in exercise of these Legislative
powers. The Court held that those absorption rules were made to solve human problems
and that the High Court committed an error in striking them down, because they were
validly made after putting them to objection to general public and consulting the PSC
before being put before the State Legislature to have its concurrence. It was held that it is
not that in every case the Court would be justified in striking down the process of
absorption or requisition, more so when such absorption has been made as a legislative
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measure and that also as a one time measure. In the present case, no such attempt is
made for regularizing the ad hoc employees by resorting to such statutory powers.
[h] Decision of the Supreme Court in Narendar Chadha v Union of India, reported in
(1986) 2 SCC 157 was cited to point out that the Supreme Court held that, where persons
have been allowed to function in higher posts for 15 to 20 years with due deliberation, it
would be certainly unjust to hold that they have no sort of claim to such posts and could
be reverted unceremoniously or treated as persons not belonging to the Service at all,
particularly where the Government is endowed with the power to relax the rules to avoid
unjust results.
[i] Decision of the Supreme Court in Shainda Hasan v State of Uttar Pradesh, reported in
1993 SCC 48 was cited to pointed out that while holding that the High Court had rightly
held that the relaxation granted by the selection committee to be arbitrary, and that in the
absence of statutory rules providing power of relaxation, and the advertisement must
indicate that the selection committee / appointing authority has the power to relax the
qualification, the Supreme Court observed that, asking the appellant to leave the job after
16 years would be doing injustice to her, in paragraphs 8 of the judgement, it is started
that the case was taken up in chambers on April 20 1990 when the learned counsel for the
State after obtaining instructions from the University, agreed with the Court that asking
the appellant to leave the job after 16 years would be doing injustice to her. Accordingly,
the directions were issued to grant necessary approval to the appointment of the appellant
as the Principal w.e.f. the date she was holding the said post.
[j] Decision of the Supreme Court in Dr. A.K. Jai v. Union of India, reported in 1987
(Supp) SCC 497 was cited to point out that a case where the petitioners who were still ad
hoc doctors on the zonal railways, were those doctors who either failed to appear in the
combined medical services examination held by the UPSC or after appearing had failed
to get regularized in accordance with the prescribed rules and regulations for regular
appointments and their services had to be terminated and as such, there had been neither
any arbitrary nor illegal action on the part of the respondents, nor any violation of the
136
fundamental rights guaranteed by Articles 14 and 16 of the Constitution, the Supreme
Court gave a direction after hearing the counsel for both the sides, inter alia, to the effect
that the services of doctors appointed on ad hoc basis up to 1st October 1984 shall be
regularized in consultation with the UPSC on the evaluation of their work and conduct on
the basis of their confidential reports in respect of the period subsequent to October 1
1982 which evaluation was to be done by the UPSC. The court dismissed the petitions of
such medical officers who were appointed subsequent to October 1, 1984 with certain
directions.
[k] Decision of the Supreme Court in G.S. Lamba v Union of India reported in (1985) 2
SCC 604 was cited to point and that in paragraph 26 of the judgment, the supreme Court
held that once the power to relax is given mandatory rule exists and an action in
derogation of the rule has been repeatedly taken year after the year, it would be a
permissible inference that the action was taken in relaxation of the rule for which the
power exists in rule 29(a) of the Indian Foreign Service branch “B” (Recruitment Cadre,
Seniority & Promotion) Rules,1964. it was held that to hold otherwise would be to come
to a rather disconnecting conclusion that a body like the govt. of India acted deliberately
in contravention of the mandatory rule from year to year. It would as far as possible be
proper to avoid such an inference unless it is inescapable. Rule 29(a) conferred power to
relax any of the provisions of the Rules of 1964 and in context of the quota rule, the
Court held in paragraph 27 of the judgment, that assuming that there was a failure to
consult the Union Public Service Commission before exercising the powers to relax the
mandatory quota rule and further assuming that the posts in the integrated grade II and III
were within the purview of the Union public service commission and accepting for the
time being that the Commission was not consulted before the power to relax the rule was
exercised, yet the action taken would not be vitiated, nor would it furnish any help to
Union of India which itself cannot take an advantage of its failure to consult the
commission.
[l] Decision of the Supreme Court in Baij Nath Sharma Hon’ble Rajasthan High Court,
reported in (1998) 7SCC 44 was cited to point out that it was held that the second petition
137
used after withdrawing the petition was not barred by principle of judicata. It will be
noticed from para 5 of the judgment that when the earlier petition was withdrawn, liberty
was granted to the petitioner to the another petition if occasion arises.
[m] Decision of the Supreme Court in B.C Chaturvedi v union of India reported in (1995)
6 SCC 749 was cited to point out that, in the concurrent judgment of justice Hansaria in
paragraph 20, it was observed that, it would be wrong to think that other courts are not to
do complete justice between the parties. It was observed that it may be remembered that
the framers of the constitution permitted the high court to even strike down a
Parliamentary enactment. The High Court would be within its jurisdiction to modify
punishment/penalty by molding the relief which power it undoubtedly had.
[n] Decision of the Supreme Court in Dr.M.C. Bindal v R.C Singh, reported in AIR 1989
SC 134 was cited to point out that it was observed in paragraph 12 of the judgment that, it
was well settled legal position that the duty con consult the commission in the matter of
appointment to Civil Post by the Government is not mandatory, but directory, and as
such, the absence of consultation with the State Public Service Commission does not
render any appointment made by the Government in Civil posts invalid or illegal. The
Supreme Court also, however, held in paragraph 12 of the Judgment that, it cannot also
be contended that since the duty to consult the public service commission in the matter of
making appointments to civil services of the state was directory and not mandatory, the
appointment by the Government cannot be questioned or interfered with by the Court. In
that case, candidature for the post in the question had already been withdrawn by the
Public Service Commission and the Court held that therefore, the question of validity or
invalidity of the appointment to the said post was no longer open to be considered by the
Court.
[o] Decision of the Supreme Court in Rabinarayan Mohapatra v State of Orissa, reported
in 1991 2SCC 599 was seated to point out that, where the school teachers were working
for almost four years, the respondents were directed to treat the appellant as regularly
appointed teachers. It is pointed out that the court quoted with approval the observations
138
made in Rattan Lal v State of Harayana reported in AIR 1987 SC 478 in which it was
observed that the Govt. appeared to the exploiting the situation where the teachers who
constituted bulk of the educated unemployed were compelled to accept the job on an ad
hoc basis with miserable conditions of service it was observed that the policy of ad
hocism followed by the Government for a long period had led to the breach of article. 14
and article 16 of the constitution, and that the State Government was expected to function
as a model employer. The court deprecated the policy of the State Government and which
ad hoc teachers where denied the salary and allowances for the period of the summer
vacation by resorting to the fictional breaks.
[p] Decision of the Supreme Court in I J Divakar v Government of Andhra Pradesh
reported in (1982) 3 SCC 341 was cited for the proposition that inviting the applications
for a post does not by itself create any right to the post in the Candidate who in response
to the advertisement makes an application. His application only makes him eligible for
being considered for the post. It was held that the temporarily appointments which were
made in the case were within the power of the Government under rule 10(a)(i)(1) of the
A. P State and Subordinate Services Rules, and that, in the circumstance of the case, it
had become compelling necessity to regularize services of such temporary servants for
piece and harmony in service it was held that the action of the government was justified
and was in consonance with the Rules however, on equitable considerations and in order
to do justice between the parties and not to leave the appellants, fresh young engineering
graduates, in lurch the Court Directed that the Commission shall record to finalize the list
of selection on the basis of the viva voce tests conducted and marks assigned and forward
the same to the Government within two months.
[q] Decision of the Supreme court in Gopal Krishna Rath v M.A.A. Baig reported in AIR
1999 SC 2093 was cited for the proposition that when the selection process has actually
commenced and the last date for inviting application is over any subsequent change in the
requirement regarding qualifications by the University Grant Commission will not affect
the process of selection which has already commenced, otherwise it would involve
issuing fresh advertisement with the new qualifications.
139
[r] Decision of the Supreme Court in Gujarat State Deputy Executive Engineers
Association v The State of Gujarat reported in J.T. 1994 (3) SC 559 was cited to point out
that where the direction was given to operate and implement the revised select list by the
high court, the Supreme Court in paragraph 5 of its judgment held that the High Court
could not have given direction to appoint direct recruits from the waiting list prepared in
1980 in the vacancy which according to the High Court should have been available as
that would amount to interfering with discretion of Government which as a matter of
policy may decide to fill lesser vacancies.
[s] Decision of this Court in D.D.Upadhyaya v. State of Gujarat reported in 39(3) GLR
2264 was cited to point out that the government had taken up a stand in that case that it
had a power to regularize the service by resorting to Rule 16 of the General Rules of
1967. In that case, it was urged on behalf of the State Government that the Court may
take humanitarian and sympathetic approach and keeping in view the long services of the
respondent, it may not interfere in the matter. The learned Single Judge, however,
negatived this contention by holding that the requirement of “interest of public services”
was altogether missing in the case and, exfacie, it was a simple and plain resort to
exercise of power under Rule 16 of the Rules of 1967 for the purpose other than the
interest of public services.
[t] Decision of the Supreme Court in N.S.K. Nayar v Union of India, reported in 1991
(6 ) SLR 155 was cited to point out that it was held, in context of Rule 27(b) of the
Telegraph Engineering Services (Class I) Rules,1965,that the object of the Rule was to
provide a source of appointment to meet an administrative exigency of short tenure and it
could never be the intention of the framers of the rule to permit the appointments there
under to go on for 10 to 15 years. It was held that the appointments for such a long period
cannot be considered to be purely temporary or officiating. In paragraph 7 of the
judgment, it was held that while doing justice to the petitioners, the Court did not wish to
cause any prejudice to the direct recruits. It was held that the promotee officers, who had
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worked in STS for a continuous period of five years and were holding the posts, shall be
deemed to be regular members of Group “A” service in STS.
[u] Decision in Shanti Devi v. The State of Haryana, reported in 1988 (1) SLR 483
(P&H), was cited to point out that, in a case where the ad hoc appointees held the posts
for sufficiently long period, it was help that they formed a separate class, and that the
power of relaxing the rule were validly exercised in their favour.
[v] Decision of the Supreme Court in Surya Narain Yadav v. Bihar State Electricity
Board, reported in 1985 (2) SLR 479 was cited to point out that, where trainee engineers
of State Electricity Board were initially appointed on probation but temptation of being
absorbed permanently was given from time to time, and they continued to work since
long, the Supreme Court in paragraph 8 of the Judgment held that the Board was bound
to regularize the appointments of the appellants who had been taken as trainee engineers
initially and had continued to be in the employment of the Board.
[w] Decision in JJ Muralidhara Rao v The State of Andhra Pradesh reported 1971(1) SLR
523 (AP) was cited to point out that it was held that the new rules under which the
petitioner who had been serving for nearly ten years did not possess qualification, could
not have been applied to him as the government was really estopped to say that his
services cannot be regularized [x] Decision of the Supreme Court in Dr. Ami Lal Bhat v
state of Rajasthan reported in (1977) 6 SCC 614 was cited to point out that it was held in
paragraph 11 that the power of relaxation was required to be exercised in public interest
in a given case. The Court upheld the validity of the rules concerned relating to the cut
off date being fixed with reference to 1st January of the year following rules .
[y] Decision of the Supreme Court in Dr. (Mrs) Meera Massey v Dr. S.R. Mehrotra,
reported in (1998) 2 SLJ 178 was cited to point out that while deprecating the situation
brought about by the University by deviation from the normal mode of appointment, the
Court upheld the appellant’s appointment as lecturer.
141
[z] Decision in V.M. Sikka v Union of India reported in (1986) 1 SLJ 330 was cited for
pointing out that in paragraph 5 of the judgment, it was held that the vacancy which
occurred prior to the amended rules would be governed by the old rules and not by the
amended rules.
[z-1] Decision of the Supreme Court in Chandraprakash Madhavrao Dadwa v. Union of
India, reported in (1998) 8 SCC 154 was cited for the proposition that additional
qualifications and job requirements could be applied prospectively only.
8. The learned Advocate General contended that there was never any assurance given by
the appointing authority that the ad hoc lecturers will be regularized or made permanent.
They were appointed only by way of a stopgap local arrangement till the availability of
direct recruits through the PSC. There can be no estopple against statutory rules on the
basis of negotiations reflected in the minutes on which reliance is sought to be placed. It
was stated that no order was made on the basis of such minutes under Article 166 of the
Constitution and therefore, no decision which could be implemented, was taken. I was
then contended that the procedure of regular recruitment through the PSC was never
followed in respect of these ad hoc lecturers and there was no decision made to relax the
recruitment rules or the general rules while appointing these ad hoc lecturers or while
continuing them thereafter on ad hoc basis. It was submitted that it is only because of the
interim orders which were obtained by the ad hoc lecturers for being continued until the
availability of the GPSC candidates that they came to be continued as ad hoc employees
for a long period, which cannot create any equity in their favour or against the
Government. It was also contended that the recruitment rules for the posts in question
were being reviewed and therefore, the process of recruitment could not start. In this
regard, he referred to the correspondence between the GPSC and the State Government,
copies of which were placed on records.
It was then contended that the requirements of consultation was not dispensed with and
the Government could have made ad hoc appointments only for one year, and therefore,
according to him, there was a lapse on the part of the State Government in not consulting
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the GPSC before continuing such ad hoc appointees for more than one year, as was
required to be done under the rules and regulations. He, however, argued that this did not
give any right to such ad hoc lecturers to continue in the post, notwithstanding the
availability of the GPSC candidates. It was contended that the Government cannot
legitimately continue these ad hoc lecturers without consultative process with the PSC
and contrary to the rules, and they have to be replaced by the regular GPSC selectees. It
was also argued that there was neither any regularization, nor any deemed regularization
or deemed relaxation took place, and that, no mandamus could be issued for regularising
these ad hoc lecturers in contravention of the recruitment rules. Such ad hoc lecturers
could be continued only in that ad hoc capacity till the availability of the regular recrits or
till they get regularly appointed. The Government can, at best, consider only relaxing of
age limit in consonance with the recruitment rules and the general rules for allowing them
chances to compete as may be permissible as per the rules. It was also submitted that
many of the appellants had withdrawn their earlier petitions and filed fresh petitions on
the same cause of action, though no liberty was reserved when the Letters Patent Appeals
were disposed of, on withdrawal of those petitions.
Explaining the different stands taken in the affidavits filed on behalf of the State
Government, the learned Advocate General contended that, though initially on the
representations of the ad hoc lecturers, meetings were held and it was thought of trying to
continue them by making a reference to the GPSC, that decision came to be changed in
view of the directions given in paragraph 15(ii) by the Court on 9th March 2001 in
Special Civil Application NO.2843 of 1991 and cognate matters, and also on a
comprehensive consideration of the representations of the ad hoc employees as well as
the rules and regulations applicable to the post and the Constitutional provisions.
8.1 The learned counsel who appeared for the direct recruits, who are respondents in
Letters Patent Appeal No.485 of 2002, adopted the contentions raised by the learned
Advocate General, pointing out that the appointment orders of all the direct recruits have
already been issued.
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8.2 The learned Advocate General, in support of his arguments, referred to the following
decisions:
[a] Decision of the Supreme Court in Commissioner, Assam State Housing v. Purna
Chandra Bora, reported in (1998) 6 SCC 619 was cited for the proposition that the out-
going temporary appointee cannot challenge regular appointments to benefit himself. In
that case, the first respondent was appointed temporarily and until appointment of
Accounts Assistant was made on a regular basis, and he was discharged from service on
the day on which five persons were appointed after selection.
[b] Decision of the Supreme Court in State of M.P. v Dharam Bir, reported in (1998) 6
SCC 165 was cited for the proposition that when the post was not filled up on a regular
basis in accordance with the Rules, it could be treated by the State to be vacant. The
Court held that whether a person holds a particular post in a substantive capacity or is
only temporary or ad hoc is a question which directly relates to his status. It all depends
upon the terms of appointment. It is not open to any government employee to claim
automatic alteration of status unless that result is specifically envisaged by some
provision in the statutory rules. Unless, therefore, there is a provision in the statutory
rules for alteration of status in a particular situation, it is not open to any government
employee to claim a status different than that which was conferred upon him at the initial
or any subsequent stage of service.
[c] Decision of the Supreme Court in Keshav Narayan Gupta v.Jila Parishad, Shivpuri
(MP), reported in (1998) 9 SCC 78 was cited to point out that, in a case where the
approval of the Collector was not obtained in terms of resolution for regular appointment,
and where no applications were invited for the post and initially only temporary
appointments for limited period were sanctioned by the Collector, it was held that it
would be difficult to consider such appointments as regular.
[d] Decision of the Supreme Court in State of Orissa v Dr. Pyari Mohan Misra, reported
in AIR 1995 sc 974 was cited to point out that, in paragraph 4 of the judgment, it was
144
held that mere prolonged continuous ad hoc service does not ripen into a regular service
to claim permanent or substantive status. Such appointee shall remain on ad hoc basis
until further orders.
[e] Decision of the Supreme Court in Dr. Surinder Singh Jamwal v. State of Jammu &
Kashmir, reported in AIR 1996 SC 2775 was cited to point out that, it was held by the
Supreme Court following its earlier decision in J. & K. Public Service Commission v. Dr.
Narinder Mohan, reported in [1994] 2 SCC 630, that under the Rules, the regular
recruitment to the posts shall be made by the Public Service Commission and
consequently, the ad hoc appointments would be only temporary appointments dehors the
Rules, pending regular recruitment without conferring any right to regularization of
service.
[f] Decision of the Supreme Court in E.Ramakrishnan v. State of Kerala, reported in
(1996) 10 SCC 565 was cited to point out that the Court, rejecting the contention
canvassed on the basis of Piara Singh’s case that in view of the fact that the petitioners
had been continued for more than 14 years, they were required to be regularized on the
ground that the posts were to be filled up through selection by the PSC Recruitment
Norms, and therefore, the candidates who were found eligible and selected and
recommended for appointment by the PSC, were required to be appointed. In paragraph 3
of the judgment, it was held that the Government cannot take any decision contrary to the
Constitution to regularize the services of the candidate dehors the recruitment rules and
the statutory process for selection through the PSC, in view of the provisions of Article
320 of the Constitution.
[g] Decision in case of J & K Public Service Commission v Dr. Narinder Mohan reported
in AIR 1994 SC 1808, was cited for the proposition that the executive power under
Article 162 of the Constitution could be exercised only to fill in the gaps but such
instructions cannot and should not suppliant the law, but would only supplement the law.
It was held that, having made the rules governing recruitment, the executive cannot fall
back upon its general power under Article 162 to regularize the ad hoc appointments
145
under the Rules. It was held that the Rule 9(3) of the J & K Medical Education (Gazeted)
Services Recruitment Rules (1979), empowered only to relax the qualification of age in
particular exigencies which cannot be called in aid to relax the rules of recruitment. It
was held that the Government had no power to make regular appointments under the
Rules without selection by the Public Service Commission under Article 153(1) of the J
& K Constitution.
(h) Decision of the Supreme Court in Dr. M.A. Haque v Union of India, reported in
(1993) 2 SCC 213 was cited to point out that, in paragraph 9 of the judgment, the
Supreme Court held that, we cannot lose sight of the fact that the recruitment rules made
under Article 309 of the Constitution have to be followed strictly and not in breach. If a
disregard of the rules and the by-passing of the Public Service Commission are permitted,
it will open a back-door for illegal recruitment without limit. The Supreme Court noted
that, of late, it had witnessed a consent violation of the recruitment rules and a scant for
the constitutional provisions requiring recruitment to the services through the Public
Service Commission. It was observed: “it appears that since this Court has in some case
permitted regularization of the irregularly recruited employees, some government and
authorities have been increasingly resorting to irregular recruitments. The result has been
that the recruitment rules and the Public Service Commissions have been kept in cold
storage and candidates dictated by various considerations are being recruited as a matter
of course”.
(i) Decision of the Supreme Court in DR. (Mrs.) Meera Massey v Dr. S.R Mehrotra,
reported in AIR 1998 SC 1153 was cited for the proposition that selection of teachers has
not to be on minimum eligibility but best available from a larger sphere. The Court
observed that the selection of teacher is not to be done from the sphere of ad hoc or stop
gap appointees. Such course will damage the standard of the University.
(j) Decision of the Supreme Court in Dr. Arundhati Ajit Paragaonkar v State of
Maharashtra reported in AIR 1995 SC 962 was cited to point out that, in paragraph 7 of
the judgment, the Supreme Court observed that the claim of the appellant, that she having
146
worked as lecturer without break for nine years on the date the advertisement was issued,
she should be deemed to have been regularized, did not appear to be well founded. It was
held that eligibility and continuous working for howsoever long period should not be
permitted to over-reach the law, and that requirement of rules of selection of rules of
selection through the Public Service Commission cannot be substituted by humane
consideration. It was held that law must take its course and consequently the appellant
was not entitled to claim that she should have been deemed to have been regularized as
she had been working without break for nine years.
(k) Decision of the Supreme Court in Santosh Kumar Verma v State of Bihar reported in
AIR 1997 SC 975 was cited for the proposition that the mandamus cannot be issued
regularize the services made in contravention of law. In that case, the appointments of the
appellants were for a temporary tenure and they had sought for regularization, which was
negatived by the Public Service Commission. The posts were within the purview of the
Public Service Commission and therefore, the Government had sought the concurrence of
the Public Service Commission and the Public Service Commission had not concurred. it
was held that the Commission rightly did no concur with the request made by the
government and therefore, any regularization in violation of the recruitment to be made
by the Public Service Commission was in contravention of the law.
[l] Decision of the Supreme in the Commissioner, Corporation of Madras v Madras
Corporation Teachers Mandram, reported in AIR 1997 SC 2131 was cited for the
proposition that the creation of post or prescribing qualification for post was a matter of
executive policy of the Government, and that the Administrative Tribunal cannot give
directions for creation of post or to prescribe minimum qualification for the post.
[m] Decision of a Division Bench of this Court in Bhartiben Nanubhai Balsara v State of
Gujarat, reported in XXX(1) GLR 659 was cited for the proposition that, any
appointment to any post dehors the Rules or without being selected as per statutory Rules
should be held as irregular and invalid and that the irregularly appointed employees
cannot assert right to hold the post or continue in service.
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[n] Decision of the learned Single Judge of this Court in case of Maisuria Mahendra
Bhagawandas v State of Gujarat, reported in XXX (2) was cited for the proposition that
the appointments were made purely or temporary and ad hoc basis was the condition that
such appointees will have to vacate the post on availability of the GPSC selectees, it was
not open for such appointees to make any grievance against their termination on the
availability of the GPSC selectees
[o] Decision of this Court in Mukesh B. Desai v State of Gujarat reported in 1997 (3)
GCD 645 was cited to point out that where the appointment order clearly stipulated that
the appointment of the appellant was till a candidate was regularly selectedby the GPSC
or for a period of 11 months, whichever earlier, it was held that, assuming that he was
allowed to continue even for the period of 11 months had expired, that would still not
give any right to such an ad hoc appointee to ask for a part of mandamus, which would,
in effect, allow him to continue in service, even though his appointment would be
contrary to his own appointment order.
[p] Decision of the Supreme Court in State of Haryana v Piara Singh reported in AIR
1992 SC 2139 was cited to point out the problems that according to the Apex Court
would arise if blanket directions are issued for regularizing the ad hoc or temporary
employees. The Supreme Court held that, in the event of such directions being given,
there would be no post left for regularly selected persons even if they are selected,
moreover, two persons cannot hold the same post on a regular or permanent basis. If such
ad hoc employee is to be regularized, it would not only mean foreclosing appointment of
regular qualified person, it would also mean appointment of an unqualified person. It was
also held that issuing general declaration of indulgence was not part of `Court’s
jurisdiction. It is further held it is for the respective Governments to consider the
feasibility of giving them appropriate relief, particularly in case where persons have been
continuing over a long number of years, and were eligible and qualified on the date of
their ad hoc appointment and further whose record of service was satisfactory. The
Supreme Court also held that the appointment of the regularly selected candidate cannot
148
be withheld or kept in abeyance for the sake of such an ad hoc / temporary employee. The
Supreme Court also observed that the persons continuing in service over a number of
years have right to claim regularization and the authorities were under an obligation to
consider their case for regularization in a fair manner, and that the proper course would
be that each State prepares a scheme, if one is not already in vogue, for regularization of
such employees consistent with its reservation policy, and if a scheme is already framed,
the same may be made consistent with the observations made in the judgment so as to
reduce avoidable litigation. It was observed that each government or authority has to
devise its own criteria or principles for regularization having regard to all the relevant
circumstances, keeping in view the observations made in the judgment.
[q] Decision of the Supreme Court in P. Ravindran v Union Territory of Pondicherry,
reported in (1997) 1 SCC 350 was cited for the proposition that the Public Service
Commission having been entrusted with the constitutional duty to select suitable
candidates by inviting applications from the open market, every candidate has a
fundamental right to seek consideration and for selection through open competition. It
was held that the process of recruitment through the Commission as envisaged under the
Constitution cannot be bypassed by issuing directions for regularization of services of the
ad hoc persons who had come to services through back-door entry.
[r] Decision of the Supreme Court in Keshav Chandra Joshi v Union of India, reported in
1992 Supp. (1) SCC 272 was cited to point out that, in paragraph 24 of the judgment, it
was held that ad hoc fortuitous appointments on a temporary or stop-gap basis cannot be
taken into account for the purpose of seniority, even if the appointee was subsequently
qualified to hold the post on a regular basic. It was observed that, in order do justice to
the promotees, it would not be proper to do injustice to the direct recruits. The ratio of
direct recruits case {(1990) 2 SCC 715} was culled out in paragraph 25 of the judgment,
as per which, where the initial appointment was only ad hoc and not according to rules
and made as stop-gap arrangement, the officiation in such posts cannot be taken into
account for considering the seniority.
149
[s] Decision in State of West Bengal v Aghore Nath Dey, reported in J.T 1993 (2) SC 598
was cited to point out that, in paragraph 20 of the judgment, it was held that Narendra
Chadha’s case cannot be construed to apply to cases where the initial appointments was
not according to rules.
[t] Decision of the Supreme Court in Dinkar Anna Patil v State of Maharashatra, reported
in AIR 1999 SC 152 was cited to point out that, in paragraph 17 of judgment, in context
of the rules framed by the Government of Maharashtra under Article 309 of the
Constitution, it was held by the Supreme Court that, it would give unbridled power to the
government to dispense with the consultation with the Maharashatra Public Service
Commission, if the word “may” used in Rule 4 was held to be directory and it would
render the very object of consultation with the MPSC, wherever necessary, nugatory. The
Supreme Court held that the word “may” must mean “shall” and therefore, consultation
was mandatory. The Supreme Court followed the decision in Keshavchandra Joshi v
Union of India, reported in 1992 Supp. (1) SCC 272, in which, dealing with the
interpretation of Rule 27 of U.P Forest Service Rules, 1952, the Court construed the word
“may” used in Rule 27. It was held that the word “may” has to be read as “shall” and
therefore, consultation was mandatory.
[u] Decision of the Supreme Court in M/s Upadhaya & Co. v State of U.P, reported in
AIR 1999 SC 509 was cited for the proposition that when the party had withdrawn the
Special Leave Petition filed to challenge the order of the High Court in writ petition
without seeking permission to file SLP, he cannot file another SLP challenging the same
order again.
[v] Decision of the Supreme Court in Executive Officer, Anthanareswara Temple v R.
Sathya Morthy, reported in AIR 1999 SC 958 was cited to point out that, in paragraph 14
of the judgment, it was held that, if an appeal was preferred by an unsuccessful plaintiff
against the judgment of the trial Court dismissing the suit and if the plaintiff appellant
wanted to withdraw not only the appeal but also the suit unconditionally, then such a
permission so far as the withdrawal of the suit concerned can be granted if there was no
150
question of any adjudication on merits in favour of the defendants by the trial being
nullified by such withdrawal.
[w] Decision of the Supreme Court in State of Maharashtra v Sanjay Thakre, reported in
1995 Supp. (2) 407 was cited for the proposition that appointment of promotees in excess
of quota was violative of Rules and could not count for the purpose of seniority.
[x] Decision in Dinkar Patil v State of Maharashtra, reported in J.T 1998 (7) SC 513 was
cited for the proposition that placement of direct recruits vis-à-vis the promotees will
have to be determined on the basis of date of regularization and excluding the period of
fortuitous appointments.
[y] Decision of the Supreme Court in the Direct Recruit Class II Engineering Officer’s
Association v State of Maharashtra, reported in AIR 1990 SC 1607 was cited for the
proposition that, where the initial appointment is only ad hoc and not according to the
rules and made as a stop-gap arrangement, the officiation in such post cannot be taken
into account for considering the seniority. (See paragraph 44 of the judgment).
[z] Decision of the Supreme Court in U.P Secretariat U.D.A Association v State of U.P.,
reported in (1999) 1 SCC 278 was cited for the proposition that, merely because
temporary appointment or promotion is made, seniority cannot be counted from the date
of officiation except when the appointment was made in accordance with rules.
[aa] Decision of the Supreme Court in Maharashtra Vikrikar Karamchari Sanghathan v
State of Maharashtra, reported in (2000) 2 SCC 552, was cited to point that, where it was
contended on behalf of the appellants that some of them had put in more than 17 years of
service, when a few of direct recruits were either schooling and / or not born in the cadre,
and that if the appellants were pushed down, it would cause great hardship to them, the
Supreme Court, in paragraph 26 of the judgment, negatived that contention on the ground
that, if there is a patent violation of the quota rule, the result must follow and the
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appellants who remained in the office for all these years cannot take the advantage of
such situation.
[bb] Decision of the Supreme Court in State of Kerala v A. Lakcmikutty reported in AIR
1987 SC 331 was cited for the proposition that the High Court could not issue a writ of
mandamus directing the State Government to appoint person recommended by the High
Court as District Judge.
[cc] Decision of the Supreme Court in Sarguja Transport Service v State Transport
Appellate, reported in AIR 1987 SC 88 was cited for the proposition that a petitioner after
withdrawing a writ petition filed by him in the High Court under Article 226 without the
permission to institute a fresh writ petition cannot file a fresh writ petition in respect of
the same cause of action in the High Court (See para 9 of the judgment).
[dd] Decision of the Supreme Court in State of Bihar V. Kripalu Shanker, reported in
AIR 1987 SC 1554 was cited for the proposition to the effect that, an opinion becomes a
decision of the Government only when it must be communicated to the person concerned,
and that nothings in a “notes file”, not only of officers but even that of a minister will not
constitute an order to affect others unless it is done in accordance with Articles 166(1) &
(2) and communicated to the person concerned. (See para 18 of the judgment).
9. The entire controversy centers around the issued whether the ad hoc lecturers who
were locally appointed until regular Public Service Commission candidates were
available and were continued as ad hoc without consultation with the Public Service
Commission and dehors the recruitment rules, should be deemed to have been or should
be regularized in the post by virtue of their having been continued for long years,
notwithstanding the availability of the Public Service Commission selectees.
10. Public Service Commissions are constitutional entities created by Article 315(1)
of the Constitution of India. The provisions of Chapter II of Part XIV of the Constitution
dealing with Public Service Commissions indicate the importance that the Constitution
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seeks to attach to the independence and the utility of the Public Service Commissions in
the realm of the services under the Union and the States.
11. The principal function of the Public Service Commissions is to conduct examinations
for appointment to Union and State Services as provided by Article 320(1) of the
Constitution. Article 320(3), inter alia, provides that the Public Service Commissions
shall be consulted,
(a) On all matters relating to methods of recruitment to civil services and for civil posts,
and
(b) On the principles to be followed in making appointments to civil services and posts
and in making promotions and transfers from one service to another and on the suitability
of candidates for such appointments, promotions or transfers. Proviso to clause (3) of
Article 320 empowers, inter alia, the Governor as respects services and posts in
connections with the affairs of the State, to make regulations specifying the matters in
which either general, or in any particular class of case or in any particular circumstances,
it shall not be necessary for a Public Service Commission to be consulted. Under clause
(5) of Article 320, such regulations made under the proviso to clause (3) are required to
be said before the Legislature of the State. It is thus left to the State concerned to specify,
by such regulations the matters in which it shall not be necessary to consult the Public
Service Commission.
11.1 The Government of Gujarat, in exercise of the powers conferred by the proviso to
clause (3) of Article 320 of the Constitution, made the Gujarat Public Service
Commission (Exemption from Consultation) Regulations, 1960. As per Regulation 3
thereof, it shall not be necessary to consult the Gujarat Public Service Commission in any
of the matters specified in paragraphs (a) and (b) of clause (3) of Article 320 of the
Constitution in respect of the posts which are specified in the Schedule to these
Regulations and temporary appointments to all other posts and services for a period not
exceeding or not likely to exceed one year. However, if such temporary appointment
involves any relaxation of the recruitment rules which are finalised in consultation with
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the Commission, it is necessary to consult the Public Service Commission, as mentioned
below the said Regulation 3. The service and its posts in the cadre of lecturer, Gujarat
Education Service, Class II (Collegiate Branch), admittedly are not exempted from the
purview of Public Service Commission under the said regulations.
11.2 The Governor of Gujarat, in exercise of the powers conferred by the proviso to
Article 309 of the Constitution, made the Gujarat Civil Services Qualifications &
Recruitment (General) Rules, 1967, which apply to services and posts the recruitment to
which is regulated in accordance with the Rules made under Article 309 of the
Constitution as laid down by sub-rule (3) of Rule 1 of the Rules. The posts of Lecturers in
the Government colleges in the State are admittedly Class II civil posts.
11.3 An appointment to any service or post included in the State service shall be made
by the State Government or by any authority duly empowered in that behalf by the State
Government either on the result of a competitive examination held for the purpose, or by
direct selection or by promotion or by transfer from amongst the persons satisfying the
conditions prescribed in these General Rules and other Rules, if any, relating to the
recruitment to such service or post, as laid down under Rule 9(1) of the General Rules.
Under sub-rule (2) of Rule 9, every such appointment shall be made after consultation
with Gujarat Public Service Commission, unless under a regulation made under the
proviso to clause (3) of Article 320 of the Constitution, such consultation is not
necessary.
11.4 In exercise of the powers conferred by the proviso to Article 309 of the
Constitution, the Governor of Gujarat made rules for regulation of recruitment to the post
of the Lecturers in the Government Arts, Science and Commerce Colleges in the Gujarat
Educational Services, Class II (Collegiate Branch) called the “Lecturers in the
Government Arts, Science and Commerce Colleges Recruitment Rules, 1980”. By Rule
2, it is provided that the appointment to the post of Lecturers in such colleges in Gujarat
Educational Services, Class II (Collegiate Branch) shall be made by direct selection. Rule
3 of the Recruitment Rules laid down the eligibility for appointment by direct selection to
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the said posts. If the Gujarat Public Service Commission was of the view that the research
work of a candidate as evident either from his thesis or from his published work was of a
very high standard, it may relax the qualifications prescribed in clause (b) of rule 3 so far
as it related to class at the Master’s Degree, under the first proviso to rule 3. If a
candidate possessing the qualifications prescribed under clause (c) of Rule 3 is not
available or not considered suitable, the Gujarat Public Service Commission may
recommend person possessing qualifications of clause (b), with consistently good
academic record i.e. overall record of all assessments throughout the academic career
leading to Master’s Degree on condition that he will have to obtain a Master of
Philosophy degree level within 5 years of his appointment, failing which he shall not be
eligible to earn future increment till he obtains that degree or produces evidence of
equivalent published work of a high standard, as laid down in the second proviso to Rule
3 of the Recruitment Rules. The General Rules would apply, in view of Rule (6) thereof
to Gujarat Educational Services, Class II, (Collegiate Branch) the recruitment to which is
regulated as per the said Rules of 1980 made by the Governor under the proviso to
Article 309 of the Constitution.
11.5 It will thus be seen that the mode prescribed for recruitment to the post of
lecturers in GES, Class II (Collegiate Branch), appointment by direct selection and no
other mode is envisaged by the recruitment rules, governing such appointment. The
recruitment rules clearly contemplate that the selection will be made by the Gujarat
Public Service Commission. This is evident from the aforesaid two provisos of Rule 3 of
the Recruitment Rules, which empowered the GPSC to relax certain qualifications. Rule
of the General Rule of 1967 requires such appointment to be made after consultation with
the Gujarat Public Service Commission, because admittedly, there is no regulation made
under the proviso to clause (3) of Article 320 of the constitution, dispensing with the
process of consultation so far as these posts are concerned. Both the General Rules and
the Recruitment Rules have the force of law, having binding effect on all concerned.
Once the Governor frames the Rules under the proviso to Article 309, the action of the
State Government in respect of the matters covered by the Rules should be regulated by
such Rules. The Rules framed under the proviso to Article 309 of the constitution are
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solemn rules having binding effect. In A.K.Bhatnagar v. Union of India, reported in
(1991) 1 SCC 544, the Supreme Court cautioned against flouting of such rules by
observing that acting in a manner contrary to the Rules creates problem and dislocation
and that very often the government themselves get trapped on account of their own
mistakes or acts in excess of what is provided in the rules, and held that the Government,
both at the Centre and in the State, should take note of this position and refrain from
acting in a manner not contemplated by their own rules.
11.6 The Rules made under the proviso to Article 309 regulating the recruitment and
conditions of services of persons appointed to such services or posts will operate with full
force, subject to the provisions of the Constitution or any Act made by the appropriate
Legislature, as contemplated by Article 309. Apart from this limitation and in the absence
of any Act of the appropriated Legislature on the matter, the Rules will have full effect
and must be enforced. In the present case, the recruitment rules for the post of Lecturer,
GES, Class II (Collegiate Branch) stipulates only one mode of recruitment i.e. of “direct
selection” from amongst the modes available under Rule 9(1) of the General Rules. Rule
9(2) of the General Rules framed under Article 309 of the Constitution require, as noted
above, that, every such appointment shall be made after consultation with the Public
Service Commission unless under a regulation made under proviso to clause (3) of
Article 320, such consultation is not necessary. It would, therefore, follow that there can
be no relaxation of the basic or fundamental rules of recruitment which prescribed direct
selection through the Public Service Commission as the only mode of recruitment to the
post for which the recruitment rules are framed under Article 309. Mere executive
instructions under Article 162 read with Article 166 cannot supercede the recruitment
rules made under the proviso to Article 309 which have the force of law. Since there is
not option left with the government under the Lecturers, GES, Class II Rules 1980, to
adopt any mode other than of direct selection for appointment to the post, will fly in the
face to the recruitment rules and cannot be validly recognized. In fact, regularization
cannot be said to be a mode of recruitment. [See R. N. Nanjundappa v Thimmiah,
reported in (1972) 1 SCC 409].
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11.7 The power of regularization, in absence of any provisions in the Act or Rules made
under Article 309, would be referable to the executive power under Article 162 and not to
the legislative or rule making power under Article 309. Therefore, when the field is
occupied by law which expression will include rules having force of law, there would be
no scope for exercising executive power in a manner that would be in conflict with such
law. In the present case, there was no attempt made by the State Government to absorb
the ad hoc appointees by making any regularization or absorption rules having force of
law. The process of recruitment of Lecturers, GES, Class II (Collegiate Branch) by way
of direct selection through the PSC which was undertaken, as per the recruitment rules,
cannot, therefore, be halted. In fact, the appointment orders of such 342 direct recruits
who were selected are already issued (132 orders were issued on 10th November 2001
and 210 on 9th October 2002, of which 123 are awaiting posting, as stated by the learned
Advocate General). As held by the Supreme Court in Piyara Singh’s case (supra), the
appointment of the regularly selected candidates cannot be withheld or kept in abeyance
for the sake of the ad hoc / temporary employees. In the present case, the ad hoc
employees are being replaced by the regularly selected employees and therefore, the
appellants cannot make any grievance against such replacement which was contemplated
by the very nature of their ad hoc appointments, which temporary status never was
altered.
12. It was sought to be urged on behalf of the appellants that the appointments of the
appellants should be treated as regular, because, they were having the requisite
educational qualifications when selected as per the policy of local recruitment by a
committee prescribed by the government orders, dated 21st December 1992. The circular
dated 21st December 1992, which is on record, shows that the instructions were issued by
the office of the Commissioner of Higher Education as regards the procedure to be
followed for local appointments in the government colleges. It was, inter alia, mentioned
therein that there would be a Selection Committee for taking interview of the candidates
for the purpose of such local appointments on ad hoc basis comprising Joint Director of
Higher Education or an officer of the rank of Joint / Deputy Director authorized by the
Joint Director of Higher Education, who would be the Chairman, the Principal of the
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concerned college, the senior most lecturer of that college, and an expert in the subject
concerned, to be appointed from the panel of senior lecturers prepared for the purpose. It
was further provided that, there should be at least three members present in the
Committee for discharge of its functions, and that if the Chairman was not able to remain
present, the Principal of the College would function as a Chairman. If the senior most
lecturers who were the member did not remain present, then it was left to the Principal to
call another senior lecturer of the same college. In the same way, if the expert member
who was lecturer from the panel was not able to remain present for taking the interview,
it was left to the Principal to call the lecturer teaching the subject concerned in the
concerned college itself. Marks were to be allotted from 25 marks by each of the four
members individually, and a merit list was to be prepared on the basis of such allotment
of marks. The circular also provided for open interview. In paragraph 11 of the circular, it
was stated that, ordinarily, the lecturers were to be selected through the Gujarat Public
Service Commission only on permanent basis. However, as an exception, the ad hoc
temporary appointments were made as per the above procedure. If it is not possible to
make local appointments in the above manner, in some special circumstances, local
appointments could be made after prior permission by adopting the method of open
interview. It is clear to us that the local appointments of ad hoc lecturer by way of
stopgap arrangement as per the procedure prescribed by the said circular was not
intended to prescribe any alternate mode of regular appointment to the cadre of Lecturers,
GES, Class II Services, but by their very nature, such appointments were subject to the
availability of the regular recruits. The conditions of local appointments provided that the
ad hoc appointees would be relieved as soon as the PSC candidate or a transferee
reported for the post as is clear from the condition No.7 of the conditions of local
appointments, which are placed on record along with the said circular. In the appointment
orders, admittedly, it was specifically mentioned that the appointment of these persons
was purely on ad hoc basis and they would have n right to the post of lecturer, it was
specifically stated in these orders that, on the availability of the regular candidate through
Public Service Commission or by transfer of lecturers, the ad hoc employee will have to
be replaced. Such of those selectees who were appointed keeping their lien in Class III
posts in the Government schools, they were required to be reverted and in other cases
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where there was no such lien,” the ad hoc recruits were to be relieved. There is no
dispute over the fact that the appointments of all these appellants were made purely on ad
hoc basis, with a clear stipulation that they were to be relieved subject to the
availability of the GPSC candidates.
13. Selection by way of local arrangement for a stop gap appointment of lecturer by
local committee in which the college concerned had a major voice by virtue of its
principal and senior most lecturer being the member of the Committee such Committee
cannot be compard with the selection by the Gujarat Public Service Commission, which
is a constitutional body for regular appointment to the post in the cadre of Lecturers,
Gujarat Education Service Class II as per the recruitment rules.
The purpose of such recruitment is aimed at securing the best available talent for the
teaching post. There is nothing common between such local committees and the GPSC.
The functions of the PSC are meant to ensure that vacancies are filled by deserving and
capable hands and are not filled either by the relatives or friends or flatterers. Though the
powers of the PSC are advisory in character, it is required to be consulted, as provided by
clause (3) of Article 320 of the Constitution, unless such consultation is dispensed with
by a regulation made under the proviso to clause (3) in respect of the specified matters or
particular class of case or circumstance. The Commission having been entrusted with the
constitutional duty to select suitable candidate by inviting applications from the open
market every eligible candidate will have a fundamental right to seek consideration for
selection through open competition (See P. Ravindran v Union Territory of Pondichery,
reported in (1997) 1 SCC 350).
13.1 The fact that there is no provision in the Constitution which makes the acceptance
of the advice tendered by the PSC, when consulted, obligatory renders the provision of
Article 320(3) directory, and not mandatory, but that does not amount to saying that it is
open to the executive government completely to ignore the existence of the Commission
or to pick and choose cases in which it may or may not be consulted. The proviso to
clause (3) of Article 320 clearly envisaged framing of regulations which are to be led
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before the legislature, if at all the process of consultation is to be dispensed with in
matters which are to be specified. Once such regulations have been made, they are meant
to be followed in letter and spirit. It would not be open to the executive government to
bypass the process of recruitment through open competition to be held by the PSC in
services, which fall within its purview under Article 320 of the Constitution.
14. After having the experience of working of the Government of India Act, 1935,
which, in section 266, provided for functions of the Federal and Provincial Public Service
Commissions, the defects that were noticed in practice were sought to be remedied in
Article 320 (embryonic form of which was Article 286 in the Constituent Assembly
Debates), by seeing to it that the regulations exempting certain things from the scope and
jurisdiction of the PSC have to be placed before the Parliament or Legislature, as the case
may be, for its scrutiny from time to time. Article 320 provides a check, and indeed a
very good check, on the vagaries of the Executive by providing that the regulations
specifying matters in regard to which it will not be necessary to take the advice of the
PSC, are laid before the Legislature and the Legislature will have the power not merely to
criticize such regulations, but to amend them in any manner that it likes. This would
ensure that no regulations would operate unless the Legislature approves them. Further
more, by Article 323 (2) of the Constitution, the State Public Service Commission has
been enjoined with a duty to present annually a report of its work to the Executive and
the Governor is required, on receipt of such report, to cause a copy thereof together with
a memorandum explaining, as respects the cases, if any, where the advice of the
Commission was not accepted and the reasons for such non-acceptance, to be laid before
the Legislature of the State. Thus, should the Executive be tempted unduly to disregard
the advice of the PSC, the representatives of the people will have an opportunity of
scrutinizing such action of the Executive and preventing the Executive, in future, from
disregarding the considered advice of the Commission. With the checks provided in these
Articles, there is a reasonable certainty that the Executive will be disposed to act with
caution and not to exercise its powers in an arbitrary fashion and act as if the Public
Service Commission did not exist.
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14.1 It will not be out of place here to remind ourselves that, on 26th November 1949,
while adopting the Constitution, the President Dr. Rajendra Prasad, while pointing out the
salient features of the Constitution, inter alia, observed; “Our Constitution has devised
certain independent agencies to deal with particular matters. Thus, it has provided for
Public Service Commissions, both for the Union and for the States and placed such
Commission on an independent footing so that they may discharge their duties and
without being influenced by the Executive. One of the things against which we have to
guard is that there should be no room as far as it is humanly possible for jobbery,
nepotism and favoritism. I think the provision which we have introduced in our
Constitution will be very helpful in this direction.
15. It would follow from the nature of the functions of the Public Service
Commission that, being associated with all matters relating to methods of recruitment to
civil services and for civil posts and on the principles to be followed in making
appointments, promotions and transfers, as also with the suitability of candidates for such
appointments, promotions or transfers, the PSC is under a constitutional obligation to
exercise its powers to be consulted in all matters in which it is required to be consulted
and the Executive is under the constitutional obligation to consult it in all matters which
are not specifically excluded by the regulations made under the proviso to clause (3) of
Article 320. Deliberate and consistent failure on the part of the Executive to consult the
PSC in matters in which it is constitutionally obliged to consult, notwithstanding the
advice may not be binding on it, would bring about a situation in which it would appear
that the governance of the State is not carried on in accordance with the provisions of the
Constitution, by on one hand paralysing a constitutional body like the PSC from
functioning and on the other, short circuiting the provisions which require regulations
under the proviso to clause (3) to Article 320 to be framed and to be laid before the
Legislature which can modify them, for deciding in which specified matters, consultation
with the PSC is to be dispensed with. The power of the Legislature in context of such
regulations cannot be scuttled by the Executive by going beyond the regulations which
specify the matters for which it is not necessary to consult, by refraining from
consultation as regards the matters not so required by such regulations. The PSC is under
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a Constitutionalm obligation to send annual report which has to be laid before the
Legislature under Article 323 and in such report, it would be obligatory on its part to
report about any deliberate inaction on the part of the Executive Government to consult
the PSC in respect of the matters in which it is required to be consulted in the absence of
the regulations under the proviso to clause (3) of Article 320, and point out the fact that it
could not do its work due to such inaction, deliberate of negligent or because of reckless
indifference, on the part of the State Government so that the Legislature and take action
for breach of the constitutional requirement of consultation from such report and take
necessary action expected of it.
16. As noticed above, consultation with the Commission in any of the matters
specified in paragraphs (a) and (b) of clause (3) of Article 320 is not necessary in respect
of the posts specified in the Schedule to the Exemption from Consultation Rules of 1960
and the post of Lecturer, Gujarat Education Services, Class II, is not included in that
Schedule. Such consultation is, however, not necessary in respect of the temporary
appointments to all other posts and services for a period not exceeding or not likely to
exceed one year as per clause 3(b) of the Regulations of 1960. Thus, no consultation is
required when the post is to be filled in for temporary period not likely to exceed one
year. This exemption does not authorize the State Government not to consult the PSC in
respect of the appointments which are likely to exceed one year. This would mean that, in
all such cases, the Government is required to apply its mind and decide before making
any temporary appointment whether such appointment is “for a period not exceeding or
not likely to exceed” one year. Even in cases where the temporary appointment is not
likely to exceed one year the Government issued circular dated 22nd January 1998 which
is mentioned below Regulation 3 of the said Regulations of 1960 that it is necessary to
consult the PSC if such temporary appointment involves relaxation of recruitment rules
of the post, finalised in consultation with the PSC even in urgent cases. The Circular of
1992 issued by the Government under Article 162 of the Constitution for making local
appointments cannot expand the scope of Regulation 3, and enable the Government to
make temporary appointments for an indefinite period exceeding one year. It is an
unfortunate situation that the GPSC did not worry about the erosion of its power of being
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consulted by the culpable inaction on the part of the Government to consult it for
appointments to the post of Lecturers, Gujarat Education Service, Class II, despite more
than 400 vacancies having arisen.
16.1 It was contended on behalf of the PSC that, in absence of getting the requisition
from the Government inspite of its reminders, it could not exercise its functions.
Correspondence was shown to us reflecting the inaction on the part of the Executive in
not consulting the GPSC in respect of these vacancies and the lukewarm attitude of the
Executive. The GPSC need not have felt itself helpless in not being able to do its work
and could have resorted to appropriate legal proceedings for seeking a remedy against the
State Government for compelling it to perform its local obligation to consult the
Commission in matters in which it was as per the Rules, Regulations and Constitutional
provisions required to be consulted. Such inaction on the part of the GPSC as well as the
State Government, which had put the machinery of consultation in context of these posts
to disuse, verges on negligence in performance of the statutory functions, and amounts to
a reckless disregard to the consequences of such inaction in breach of statutory duties
entrusted to them. Such reckless inaction and breach of statutory duties would obviously
be attributable to the individuals who were required to discharge their functions
according to the rules, regulations and the constitutional provisions requiring consultation
with the GPSC in the matter of such appointments.
16.2 The provisions contained in Article 320 with regard to the matters in respect of
which the PSC shall be consulted have been held not to be mandatory, because, it was not
stated what would be the consequences of the disregard of these provisions, and, clause
(3) warranted exclusion of matters from consultation by the Executive. This would mean
that, from the point of view of the public, the obligation laid on the Executive was not an
enforceable right but only a directive principle. However, in such a case, the PSC is now
able to mention in its report under clause (5) of Article 320 about the matters in which its
recommendation was not accepted or where it was not consulted though required to be so
consulted and such report will have to be placed before the Legislature. The provisions of
clause (5) of Article 302 was clearly enacted to ensure that there would be a reasonable
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certainty that the Executive will be disposed to act with caution and not exercise its
powers in an arbitrary fashion and act as if the Public Service Commissions did not exist.
If the Executive or the personnel of the Commission do not discharge their duty properly
and without fear or favour, then they demean these welcome constitutional provisions.
After all the Constitution cannot either create competent men or compel the Executive to
choose the officers required to discharge important functions with care and impartiality.
17. It was argued that, from the continuance of the ad hoc appointees for long period,
it should be inferred that the recruitment rules were relaxed in their favour and they are
deemed to have been regularised. The appointments of the appellants and the like were
mere local appointments made dehors the rules and such ad hoc appointments could not
have been made for a period exceeding one year, without consulting the Public Service
Commission. The posts having not been filled up on regular basis in accordance with the
statutory rules were required to be treated as vacant for the purpose of undertaking the
process of regular recruitment. The terms of appointment of the ad hoc appointees clearly
stipulated that they would be relieved when the PSC candidate or a transferee was
available. Such ad hoc status of these appointees did not at any stage alter by any rules or
regulations having force of law. The appellants and like who were appointed in ad hoc
capacity, therefore, continued to hold the post in that capacity only, and there would be
no alteration of their status from ad hoc appointees to regular recruits. As held by the
Supreme Court in state of M.P. v Dharam Bir. Reported in (1998) 6 SCC 165, it is not
open for any government employee to claim automatic alteration of status unless that
result is specifically envisaged by some provision in the statutory rules. The exigencies of
service often require ad hoc arrangement till the regular selection gets finalized. If the ad
hoc employees who continued as ad hoc beyond one year are to be regularized or deemed
to have been regularized as argued on their behalf, that would frustrate the very process
of selection and appointment as per the mode and procedure prescribed by the statutory
rules, and, as would happen in that present case, no posts would be left for the regularly
selected persons, because, two persons cannot hold the same post on a regular basis. As
held by the Apex Court in Piyara Singh’s case (supra), efforts should always be to replace
such ad hoc employee by a regularly selected employee as early as possible. Such
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temporary employee may also compete along with others for such regular selection /
appointment and if he gets selected, well and good, but if he does not, he must give way
to the regularly selected candidate. The appointment of the regularly selected candidate
cannot be held in abeyance for the purpose of allowing the ad hoc employee to continue.
When the field is covered by the statutory rules laying down the mode of regular
appointments, the Courts will not be justified in directing any regularization which may
be dehors the rules. No illegality should be allowed to perpetuate under the Court orders.
Therefore, the Court while holding that the regular appointments by direct selection to the
post of Lecturers can be made only as per the recruitment rules and the general rules in
consultation with the GPSC as contemplated there under, cannot, in the same breadth,
order that the ad hoc appointees irregularly continuing beyond one year pending the
availability of regular GPSC recruits should be treated as regularized due to their
prolonged continuance on ad hoc basis. That would amount to asking the government to
violate the statutory rules in the context of the ad hoc appointees while professing to
uphold and enforce them in context of the direct recruits. Such self-contradictory
approach would be a mockery of the legal system. It would be for the State Government
to devise any scheme consistent with the recruitment rules or a validating statutory
provision, if at all the ad hoc appointees are to validly hold the post. It is obvious that the
State cannot be compelled by the Court to legislate in the matter for making any statutory
exception in the recruitment rules or to retrospectively validate by a statutory provision
any such ad hoc appointment.
18. It was contended that the theory of precedent did not mean picking up one of the
cases decided by the Apex Court and applying its ratio, but it meant taking into account
the ratio emerging after the study of all the ratios of different decisions. Such formidable
task may evolve some hybrid ratio which may not have been intended by the Apex Court
even in its collective wisdom. The proper course is to keep in mind the ratio as it emerges
in each case in the background of its facts and the decision rendered and each decision of
the Apex Court on its own will constitute a binding precedent.
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19. The contention that the direct selectees have no right to claim the appointment
even when included in the select list prepared by the PSC and therefore, the learned
Single Judge should not have issued directions to appoint them as contained in paragraph
77 of the judgment, is not open to these ad hoc employees. The State Government has not
raised any such contention and has, as per the recruitment rules, issued appointment
orders of these PSC selectees. The fact that the PSC selectee on the select list cannot
claim appointment as a matter of right create any entitlement in favour of the ad hoc
employee to continue as ad hoc employee in a post which, as per the statutory rules, can
be filled only by direct selection through the PSC. There is also no substance in the
grievance made on behalf of the lien holder ad hoc appointees against the directions
contained in paragraph 77 of the impugned judgment for applying the principle of “last
come first go” to the ad hoc appointees.
20. The contention that some of the ad hoc employees were wrongly not called for
interview on the ground that they did not satisfy the educational qualifications prescribed
by the recruitment rules which were subsequently amended, is erroneous. Their
qualifications were necessarily required to be judged by the provisions of the recruitment
rules prevailing at the time of their applying for such regular appointment and not with
reference to the time when they were initially appointed by way of local arrangement on
ad hoc basis about 10 years back, as was urged on their behalf.
21. Thus, a very sad picture emerges. There has been a total callousness on the part
of the Executive as well as the Gujarat Public Service Commission which is a
constitutional authority, in the discharge of their important constitutional functions in the
matter of making appointments to the cadre of Lecturers, Gujarat Education Service,
Class II (Collegiate Branch). Appointments on ad hoc basis were made from time to time
and there has not been any attempt to consult the GPSC by sending requisitions for all
these posts or for extension of ad hoc appointments beyond one year of the initial
appointments. From what the learned Advocate General and counsel for the GPSC have
stated before us during the arguments, though quarterly statements of the ad hoc
employees were required to be sent to the GPSC, as per the government orders in force,
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they were in fact not so sent for over a decade. The government, in their Education
Department, put up an excuse in their communication dated 18th August 1998 addressed
to the GPSC that the ad hoc lecturers were appointed locally till the end of the academic
term, but some of them obtained interim orders from the Courts for being continued till
regular PSC recruits were available, and therefore, they had to be continued. The PSC in
their letters dated 27th January 2000 and 12th March 2001 addressed to the Government
lamented that despite their reminders, no information of ad hoc lecturers was being
furnished to it, nor was any proposal received by it for continuing such ad hoc
employees. In the letter dated 12th March 2001, the GPSC raised its mock voice stating
that it was neglected for over ten years in respect of these ad hoc appointments, and that it
took serious note of indifference and negligence of the Government and further that, if
reply was not sent in 15 days, the PSC will make a note of this matter in its annual report
(under clause (5) of Article 320). On 20th March 2001, the Government sent reply to the
GPSC with a request not to make a note about its lapse (of not consulting the GPSC) in
its annual report. The correspondence was shown to us by the learned Advocate General
and the learned counsel for the GPSC, because, during the hearing, we asked them to
explain to us the inaction on the part of the Executive and the GPSC that had resulted in
the present impasse of the ad hoc lecturers continuing for long years and many over ten
years and the GPSC candidates not being appointed as per the recruitment rules for all
these years. Copies of this correspondence are placed on record and it makes a dismal
reading showing the utter careless and indifference of both these august bodies.
22. No chastisement nor expressions of dismay and disappointment have yielded any
result in the past. This is because the concerned officials of the Executive and the GPSC
may be labouring under an impression that nothing more can be done in respect of such
conduct amounting to negligence, recklessness in discharge of duties in public office or
breach of statutory duties. Administrative law directly affects the functioning of the
Executive by issuing writs or orders instructing the administration how to act or what to
refrain from doing, in accordance with their statutory duties. Yet, there are many
situations where the administration may have functioned improperly, but no effective
remedy can be employed post facto. What is done is done, to be left as “faitaccompli”.
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Usually administrative law does not award monetary compensation over losses caused by
the infringement of rights except in rare cases, but in this regard, tort law makes a huge
difference. As one of the aims of judicial review is to encourage the public authority to
function properly through deterrence, it stands to reason that tort law may and often
prove to be more effective deterrent than administrative law, for, the authority may take
risk of being ordered to change its ways if court order is issued, but it may hesitate to take
such risk if it involves liability to pay substantial compensation. In cases where plea of
immunity is not legally available, the court may consider whether to impose tort liability
on public authorities exercising statutory powers and while doing so, it is actually
engaged in judicial review of the decision and functioning of the executive in order to
decide whether the latter exercised its powers properly. The imposition of tort law
liability is tantamount to a finding that the executive failed to function properly, and that,
affected person is entitled to rectifying remedies against the authority. This venue of
judicial review would co-exist with the judicial review conducted by the Courts by
applying administrative law, to make the constitutional remedies more effective in the
public law field.
22.1 Though standard of negligence applied by the Courts in determining where a duty
of care has been breached cannot be applied to policy decisions, it can be applied to
operational decisions. Accordingly, it is possible that a duty of care may exist in relation
to discretionary considerations which stand outside the policy category in the division
between policy factors on one hand and operational factors on the other. A public
authority may be under no duty of care in relation to decisions which involve
dictated by financial, economic, social and political factors or constraints. But, it may be
otherwise when the courts are called upon to apply standard of care, to action or in action
that is merely the product of administrative direction, expert or professional opinion,
technical standards or general standards of reasonableness. The duty of care should apply
to a public authority unless there is a valid basis for its exclusion as in case of a true
policy decision of the government. Why should people cause foreseeable injury by the
careless acts of others not have a right to compensation against those with some
responsibility or an authority to prevent the wrong in question merely because the activity
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related to public law sphere? The executive authorities enjoined with the duty to consult
the Public Service Commission for recruitment as per the recruitment rules were acting in
the sphere of the operational part of the process as distinguished from the policy decision
division requiring the recruitment to be made as provided by the recruitment rules. Even
relaxation aspect may be considered as a part of policy decision under the Rules. But the
function to send requisition to consult the GPSC was purely an administrative function
involving no policy consideration or a quasi-judicial process. The consequences of
continuing the ad hoc appointments beyond permissible one year without consultation,
resulting in the ad hoc employees remaining in ad hoc status for a number of years which
was wholly irregular in absence of the consultative process could have easily been
foreseen by the concerned executive officers, who did not take reasonable care in
discharge of their functions, which required them to send requisitions for regular direct
recruitment through the PSC and even to consult it for ad hoc continuance of these
temporary employees or to do any permissible relaxation in consultation with the PSC.
Such careless default on the part of the executive authority directly resulted in ad hoc
continuance of all those lecturers for so many years that it may have virtually washed
away any opportunity to settle again, which they would have had if they were reveled
after one year of ad hoc appointment or on being considered as to whether they could be
absorbed by a legitimate process within the bounds of statutory rules governing the
services. There are no legitimate and proportionate reasons to show why the authority
failed to act in the way it did. Now that compensation can be awarded against public
authorities for violation of fundamental rights in exercise of their powers, there is no
rationale for any wide exclusionary rule for such liabilities,
23. The tort of misfeasance in public office has two forms, which are the alternative
ways in which such tort can be committed, namely, (1) cases where public power was
exercised for an improper purpose with the specific intention of injuring a person or
persons (i.e targeted malice), and (2) cases where a public officer acted in knowledge that
he had no power to do the act complained of and that it would probably injure the
claimant. In the second category of cases, an act performed in reckless indifference as to
the out come was sufficient to ground the tort, when the public officers acts with a state
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of mind of reckless indifference to the illegality of his act, it involves bad faith inasmuch
as the public officer does not have an honest belief that his act is lawful. The misfeasance
consists in the purported exercise of a power otherwise than in an honest attempt to
perform the relevant duty. It is that lack of honesty which makes act an abuse of power.
The rationale of this tort of misfeasance in public office is that in a legal system based on
rule of law, executive or administrative power may be exercised only for the public good
and not for ulterior and improper purposes. Reckless indifference to consequences is as
blameworthy conduct as deliberately seeking such consequences. It has been treated as
steeled law in England that an act performed in reckless indifference as to the outcome is
sufficient to ground this tort. (Lord Steyn in three Rivers DC v Bank of England (No.3),
reported in [2000] 3 AII ER 1, also see Lord Hope in Three Rivers DC v Bank of
England, reported in (2001) 2 AII ER 513, paragraphs 42 and 44].
23.1 Torts may arise as a result of malfeasance, misfeasance or non-feasance.
Malfeasance would be wrongful act by a state officer in performance of the officer’s
duties that is substantially outside the scope of the authority of the officer and that
substantially infringes on the rights on the rights of a person or entity. As malfeasance
requires the intentional commission of an unlawful or wrongful act, the focus is on the
action taken by the official. In contrast, non-feasance focuses on the official’s failure to
act. Misfeasance has been defined as malicious abuse of power, deliberate
maladministration and lawful atcs causing injury by public officer. While actual malice,
if proved, would render the public officer’s action, both ultra and tortuous, it would not
be necessary to establish actual malice in every claim for misfeasance in public office.
(See Common Cause, a registered society v Union of India (1999) 6 SCC 66, paragraph
82 and 98). Misfeasance is now recognized as imputable to discharge of duty arbitrary.
Misfeasance being a deliberate tort, the focus is on the state of mind of the wrong-doer at
the time the relevant act is done or omission is made. For the purpose of misfeasance, the
mental element is satisfied by either (1) evidence of malice, or (2) knowledge of the
absence of power which includes reckless indifference as to extent of power. Malice will
exist if the act was done with an actual intention to cause injury. The requirement of
malice will also be satisfied if the act was done with knowledge of invalidity or lack of
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power and with knowledge that it would cause or be likely to cause such injury. The
present case is a case of the executive recklessly discharging both a known constrain on
its power and the permissible means of fulfilling its known duty of acting as per the
statutory rules in the matter of appointments to the posts of Lecturers, GES, class II. Here
the constitutional provisions, the recruitment rules and the general rules having force of
law protect the interests of the eligible persons of being given an equal opportunity in the
matter of public employment i.e from being considered for the post of lecturer, GES,
Class II as per the recruitment rules in consultation with the GPSC which interest was
jeopardized by the executive by continuing ad hoc appointees contrary to law. The
present case is not of targeted malice but of knowledge of absence of power which
includes the reckless indifference as to the extent of power. A broad notion of malice
would include such knowledge and reckless indifference. The inclusion of reckless
indifference as a relevant state of mind is consistent with the notion that misfeasance is a
deliberate tort.
23.2 The exercise of power by not sending the requisition causing the ad hoc lecturers
to continue contrary to the recruitment rules was invalid in the sense that the concerned
public officer had no power to continue them beyond one year without consultation with
the PSC and by continuing them beyond one year, the power had been miscarried by the
public officer. Thus, the first element of the tort of misfeasance in public office, namely,
the public officer committed an invalid act or omission stands established on admitted
facts.
23.3 Second element of this tort which requires that the public officer knowingly acted
in abuse of power is also established, because, it is evident that the public officer
involved acted with actual knowledge of lack of power to continue ad hoc appointees
beyond one year in face of the specific provisions of the Constitution, the Recruitment
Rules and the General Rules and in arbitrarily continuing the ad hoc appointees and not
following the recruitment rules and procedure prescribed for recruitment to the post.
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23.4 The third element of this tort of injury being suffered by the persons concerned is
also present, because, as a result of the wrongful act of the public officer in not sending
requisitions for 435 posts from time to time to the GPSC as per the statutory
requirements, and wrongfully continuing the ad hoc appointees for more than ten years
acting with reckless disregard to the legal consequences of such act and omission, the
aspirants for the posts have suffered disadvantages that they may not have suffered if the
power had been validly exercised.
23.5 Thus, apart from the tort of negligence (which is the failure to exercise reasonable
and prudent care in relation to a situation), the public authority would commit tort of
misfeasance in public office when acting in reckless indifference as to the outcome of its
act which he had no power to do, tort of nonfeasance in public office on failure to
perform specific acts that are the required duties of the officer, and general tort of bench
of statutory duty where it commits breach of a particular statutory duty. In the present
case, statutory obligation required the executive authorities to fill up the posts of lecturers
in government colleges by following the procedure of direct selection through the GPSC
for which the requisitions were to be sent when the vacancies arose. The law did not
permit ad hoc appointments to these posts beyond one year without consulting the GPSC.
The executive authorities did not consult the GPSC for over ten years and continued the
appointments of the ad hoc lecturers illegally. This breach of statutory duty cast upon the
executive was obviously known to the concerned authorities. They acted with reckless
indifference to the consequences of their inaction in the matter of undertaking the process
for direct recruitment and committed breach of the statutory provisions by continuing the
appointments of ad hoc appointees beyond one year without consulting the GPSC. The
consequences of their reckless disregard to the statutory provisions was that the periodic
PSC examination in which selection could have been made for direct recruitment were
not held thereby denying those who could have competed, an equal opportunity in the
matter of public employment. The conduct of the authorities in arbitrary of ad hoc
appointees was violative of fundamental rights of others, who would have otherwise had
an opportunity to compete for selection, had the executive initiated the process of
‘recruitment to 435 vacant posts in time, as per the recruitment rules. The executive
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authority, therefore, clearly acted with a state of mind of reckless indifference to the
illegality of its act and the risk of violating the fundamental rights of the prospective
candidates under Article 14 and 16 of the Constitution. By not sending the requisitions to
the GPSC in time, the executive authority failed to perform its required duties. Even
though special damages cannot be the subject matter of public law proceedings, the
improper interface between notions of unlawful acts in judicial review proceedings and
rights to damages in tort means that some victims of bureaucratic recklessness in
discharge of statutory duties currently go uncompensated. We may however put the
public authorities guilty of the tort of misfeasance or non-misfeasance in public office or
the general tort of breach of statutory duty to guard that they would be liable to action for
damages for such acts, if claimants were to seek damages for consequential economics
loss by establishing that the public officer acted in the knowledge that his act would
probably injure the claimant.
24. In public law, claim for compensation is a remedy available under Article 226 for
enforcement and protection of fundamental and human rights and the defence of
sourvereign impunity is inapplicable and alien to the concept of guarantee of fundamental
rights. As held by the Supreme Court, such remedy is a practical and inexpensive mode
of redress available for contravention made by the State and its servants in purported
exercise of their powers and enforcement of the rights or duties under the Constitution or
the law. (See Consumers Education & Research Center v Union of India, reported in
(1995) 3 SCC 42). Moreover, the principle of vicarious liability apply as much to
misfeasance in public office as to other torts involving malice, knowledge or intention,
(See Racz v Home Office (1994) 1 All ER 97). The Supreme Court has held that the
remedy of compensation available in public law is
”distinct from and in to the remedy in private law for damages for tort” resulting from the
contravention of the fundamental rights [See Nilabati Behera(Smt) alias lalita v State of
Orissa reported in (1993) 2 SCC 746, D.K Basu v State of W.B., reported in (1997) 1
SCC 416, Common Cause, A Registered Society v Union of India, reported in (1999) 6
SCC 667]. In case where the tort of misfeasance or non-feasance in public office or of
general of breach of statutory duty is established and no factual dispute arises in respect
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of such default in public law proceedings, the court will be within its power to award
compensation as a remedy against the defaulting public officer and also the State
Government for its vicarious liability. Such interface between the public law remedy and
tort law would be essential to meet the ends of justice and will act as a deterrent against
the public authority for preventing it from acting with a reckless disregard of the statutory
provisions to the detriment of the public.
25. The continuance of these ad hoc lecturers for many years beyond the first year for
which the consultation from GPSC was not necessary in view of the ad hoc nature of
appointment may have nurtured hope in them that they will be regularized. In fact, in the
office note, which is at Annexure “II” of the affidavit filed on 14th October 2002 in
Letters Patent Appeal No. 17 of 2002, there is a reference to the fact that the office
bearers of the Association were heard by the Hon’ble Chief Minister on 17-5-1999 in a
public relation meeting, and that the Chief Minister had given a direction that the
decision would be taken on the basis of the report of the Cabinet Sub-Committee, and
that, in principle, it was decided to continue these ad hoc employees and the concerned
Minister will give directions as to the matter of holding of examination by the PSC.
Though this note cannot be said to be an order of the Government and only reflects that
the matter was in contemplation the Government, such consideration would have given
the ad hoc lecturers to understand that they will be regularized in service. Even in
affidavit of the Government filed on 14th June 2001 in Special Civil Application No.
2395 of 2000, it was stated that the government had, pursuant to the order dated 4-5-
2001, made in the said petition, directing the State Government to decide the
representations of the ad hoc lecturers, taken a decision that the services of all the 330
persons appointed as lecturers in government colleges on ad hoc basis from time to time
by the Commissioner of Higher Education pursuant to their selection by local selection
committee constituted under the circular dated 21-12-1992 should be regularized from
the date of their appointment as was done in the case of Medical Officers, Ayurved, Class
II, under the G.R dated 4-12-1999, and that for regularising the services of all ad hoc
appointees, a reference to the GPSC should be made to obtain its approval, as a special
case. There was. Therefore, clear indication that the case of these ad hoc employees
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would be regularized in consultation with the GPSC. However, that stand was changed,
when it dawned on the executive that they committed a legal blunder, in the affidavit,
because, these ad hoc appointees could not have been regularized contrary to the
Recruitment Rules in the post for which direct recruits were already selected through the
PSC. In fact, according to us, these matters should not be viewed as having a “lis”
between the ad hoc lecturers and the regular direct selectees. The direct selectees cannot
be penalized to wait though selected as per the statutory rules through the PSC. They are
rightly allowed to man the posts earmarked to be filled by them. The Ad hoc lecturers, if
at all, will have a legitimate grievance against the executive for continuing them on ad
hoc basis for all these years without consultation with the GPSC, creating a hope in them
that they will be some day absorbed. The executive acted in an arbitrary fashion in
continuing them contrary to the statutory rules which empowered it to make ad hoc
appointments only for a year and in breach of its statutory obligation to fill the post in the
manner prescribed by the rules. It will be for the government to consider the feasibility of
giving appropriate relief in consonance with their statutory powers were such ad hoc
appointees have been continuing over a long number of years. Issuing general declaration
of indulgence is not the part of a Court’s Jurisdiction, as held in Piyara Singh’s case
(supra) by the Supreme Court. The contentions raised on behalf of the appellants cannot,
therefore, be accepted. 26. Though these ad hoc lecturers cannot be directed to be
continued contrary to the recruitment rules, nor can they be ordered to be regularized by
any mode not warranted by the statutory rules governing the appointments to the cadre of
Lecturers, GES, Class II (Collegiate Branch), in the facts and circumstances of the case,
we direct that these ad hoc lecturers be treated as a separate class in view of their ad hoc
continuance for nearly a decade due to reckless indifference in discharge of duties on the
part of the executive and be considered for absorption in such posts as may be available
with the government or under the authority of the government in consonance with the
statutory provisions applicable to such posts. The State Government is also directed to
inquire into the serious lapse of not consulting the GPSC while continuing these ad hoc
lecturers contrary to Recruitment Rules beyond one year and fix the responsibility for the
careless default that has resulted in the ad hoc lecturers being continued for long without
consultation with the GPSC and for the posts not having been filled through the GPSC, as
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per the Recruitment Rules and the General Rules for over a decade, especially when there
was no intrim order of any Court, as we are told, which could have prevented the process
of regular recruitment.
26.1 For the reasons indicated above, we also direct that each of the appellants ad hoc
lecturers who are ordered to be relived by the impugned action of the State Government
be paid, by way of a token compensation, one month’s salary, and such amount be
recovered from the defaulting officers who may be found by the State Government to be
responsible for the inaction in sending requisitions to the Gujarat Public Service
Commission or in not consulting it while illegally continuing the ad hoc lecturers beyond
one year of their initial local appointments, without bothering to consult the GPSC under
the Rules.
26.2 Subject to the above directions, all these Letters Patent Appeals are dismissed
with no order as to costs. All the Civil Applications which are filed in these Letters Patent
Appeals stand rejected with no order as to costs.
27. At this stage, the learned counsel for the appellants prays that the operation of this
order may be stayed to enable the appellants to approach the Higher Forum. This prayer
is not justified at this distant point of time and especially when the direct recruits who are
already issued appointment orders are waiting for their posting. The request is, therefore,
not acceded to.
***
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IN THE HIGH OURT OF GUJARAT AT AHMEDABAD Special Civil Application No.3145 of 2002 & connected cases
D.D. 26.2.2003
HON’BLE MR. JUSTICE JAYANT PATEL M.J.Patel & Others ... Petitioners Vs. Director & Others ... Respondents
Examination – Scaling Method: In recruitment to examination held for Class-I and Class-II posts scaling method applied to both Preliminary Examination and Main Examination – Scaling formula applied found flawed – Hence petitions by those challenging scaling method applied to Preliminary Examination were treated as eligible for appearing for the Main Examination – Petitions challenging scaling formula applied to the Main examination were allowed quashing the result of the Main Examination as illegal with a direction to the P.S.C. to declare the result of the Main Examination on the basis of raw marks or to apply the method of moderation and scaling after consulting the experts and to declare the result thereof in either case. Held: It is well settled that the Court would normally extend the benefit of relief to only those persons who have approached the Court unless it results in causing injustice to other similarly situated persons. The candidates who did not challenge the result of preliminary examination would not be entitled to any relief since they accepted the result. So far as the petitioners who have challenged the result of the preliminary examination and those who were permitted to appear at the main examination would only be entitled to the benefit of final orders passed. Cases referred: 1. AIR 1977 SC 2328 – Union of India vs. Sankalchand Himmatlal Sheth & Anr. 2. AIR 1979 SC 193 – Chief Justice of A.P. vs. L.V.A.Dikshitulu 3. AIR 1982 SC 1230 – Om Prakash Gupta vs. Dig Vijendrapal Gupta 4. 1987 (1) GLR 157 – Kamlesh Haribhai Goradia vs. Union of India 5. 2000 (10) SCC 49 – State of U.P. vs. Shyam Sunder 6. AIR 2001 SC 152 – Praveen Singh vs. State of Punjab & Ors.
ORDER
1. Rule. Concerned learned counsel for respondents appear and waive service of
rule. With the consent of learned for parties matters are finally heard.
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2. The principal question involved in these group of petitions is: Whether it is open
to the Gujarat Public Service Commission (“GPSC” for short) to apply the scaling
method to Raw marks scored by the candidates in optional subjects in the competitive
examination for Cl.I and Cl.II Posts? And if yes, whether the method applied is on
rational basis or arbitrary? The another point which incidentally arises for the
consideration of this Court is regarding the declaration of the marks scored by the
candidate either at preliminary examination or at main examination so as to enable the
candidate concerned to apply for rechecking of marks, if it is so desired by the candidate
after such declaration.
3. The short facts of the case are that the petitioners are the candidates who appeared
in the competitive examination for the post of Cl.I and Cl.II Officers pursuant to the
advertisement issued by the GPSC. The total number of posts advertised is 164. In the
present group of petitions, the petitioners can be categorised mainly into two groups. The
first group of the petitions are filed by the petitioners who appeared in the preliminary
test and at the preliminary test in optional subjects the method of scaling of marks was
applied by the GPSC and this group of petitioners are challenging the application of
method of scaling and marks at preliminary examination and praying for declaration of
result of preliminary examination. This court while admitting those petitions by interim
order directed the GPSC to allow the petitioners to appear in the main examination
without prejudice to the rights and continents of petitioners subject to final outcome of
the petitions. After appearing in the main examination such petitioners have preferred
civil applications in the concerned main special civil applications praying for appropriate
directions to GPSC to allow them to appear at the oral interview. The second group of
petitions are filed by the petitioners who appeared at the main examination and when they
were not called for interview only they came to know that scaling method in optional
subjects upon the raw marks scored by them is applied by the GPSC at the main
examination and they have approached this court challenging the legality and validity of
method applied for scaling in the main examination. As stated herein above, the
petitioners may either be referred as first category of petitioners or Second category of
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petitioners, as the case may be, wherever distinction for such aspect is required. The
common, consequently, in both the group of petitions is the method of scaling applied by
GPSC either at preliminary examination or at the main examination.
4. It appears that the number of posts advertised is 164 and pursuant to such
advertisement, ultimately, 70324 candidates appeared at the preliminary examination and
4766 candidates were declared passed at the preliminary examination/test. The first
category of petitioners did not obtain qualifying marks at the preliminary examination.
As per Gujarat Civil Services (Class I and Class II) Competitive Examination Rules,
2000 (hereinafter referred to as “Rules”) a candidate who passes preliminary examination
and obtains qualifying marks shall be allowed to appear in the main examination. 4776
candidates appeared at the main examination and 815 candidates who passed at the main
examination and also obtained qualifying marks have been called for interview. All these
petitioners of first and second category who did not obtain qualifying marks at the main
examination have not been called for interview.
5. There is no dispute on the point that the GPSC has applied the scaling method in
optional subjects upon the raw marks scored by each candidate and the GPSC on the
contrary has declared accordingly. The affidavit in reply has been filed in SA
No.1257501 by Mr.Lalitbhai N.Patel, Joint Secretary, GPSC and as per the statement
made by Mr.D.N.Patel, Ld.Counsel appearing on behalf of GPSC in all matters the said
affidavit in reply filed in SCA No.12575/01 is to be treated as common affidavit in apply
in respect of first category of petitioners for justifying the scaling method at the
preliminary examination and the very affidavit in reply is also to be treated as defence of
GPSC in the petitions preferred by the second category of petitioners for justifying the
scaling method at the main examination. In the said affidavit in reply, which is filed in
SCA No.12575/01 and to be treated as common in all the petitions, as stated herein
above, the statement made is as under:
“This was done with a purpose to equate the marks obtained in preliminary examination by different candidates having chosen different subjects. Thus, the purpose was to render marks obtained “comparable” and thereby raw marks of optional subjects (marks obtained by the
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candidates in Part II of preliminary examination) obtained by the candidates are scaled by applying a formula. Thereafter, the result is prepared on the basis of aggregate marks of general studies added to the scaled marks of optional subjects. Thereafter, the list of candidates in seriatim is declared on the basis of their aggregate marks. In view of this fact, I deny the averment of the petitioner that “candidates with less marks than the petitioner are permitted to appear in the main examination.”
Mr.D.N.Patel Ld. Counsel appearing on behalf of the GPSC has made statement at Bar
that the same be treated on the part of GPSC to apply scaling method in optional subjects
at the main examination and with the consent of all the counsel appearing on behalf of
petitioners the statement is recorded and the matter is examined accordingly.
6. Before the rival contentions of the parties are examined, it is necessary to take
note that conducting of examination in the present case is governed by the Rules which
were on 19.10.2000. Rule 4 of the said Rules provided for of two examinations, namely,
preliminary examination (objective type) and main examination (Written and Interview
Test). Sub Rule (2) of rule 4 provides that the preliminary examination and the main
examination shall be held in such a manner as specified in Schedule II. Schedule II and
more particularly Section I for the Preliminary Examination provides that the candidates
shall be declared qualified for admission to the main examination on the basis of marks
obtained in the preliminary examination. So far as main examinations concerned it has
been provided that the candidate who obtains such minimum qualifying marks as may be
fixed by the Commission at the main examination shall be called for interview/test.
Section II of Schedule II provides one subject of General Studies of 150 marks which is
compulsory and one subject of 200 marks from 27 optional subjects. Section III of
Schedule II provides for Gujarati. General English and General Studies each of: 200
marks are compulsory subjects and two optional subjects of 200 marks each from
amongst 28 optional subjects. Various notes under Section III of the scheduled interalia
provides for the standard of Gujarati paper equivalent to Gujarati (Higher level) 12th
standard of Gujarat Secondary Education Board. English paper equivalent to English
subject (Lower level) of 12th standard of Gujarat Secondary Education Board, standard
and course contents of the syllabi for general studies paper and optional subject shall be
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of a degree level, the syllabus for each of the paper shall be such as may be prescribed
and notified by the Commission. The candidates shall not be allowed to offer the
combination of certain optional subjects, namely, Mathematics and Statistics, Politics and
International Relation and Public Administration, Public Administration and
Management, Commerce, Accounts and Management, Agriculture and Animal
Husbandry and Veterinary Science, Civil Engineering Electrical Engineering and
Mechanical Engineering Rule 6 which is relevant for the purpose of these petition reads
as under:
“6. (1) Subject to sub-rules (2), (3) and (4) the medium of the examination shall be Gujarati. (2) The answer to the question paper of general English shall be given in English language and in optional papers relating to other languages shall be given in the respective languages; (3) The answers to question on optional paper relating to Sanskrit Literature may be given in Sanskrit or in Gujarat. (4) The answers to questions on the paper of Geology, Agriculture, Civil Engineering, Electrical Engineering, Mechanical Engineering, Medical Science, Animal Husbandry and Veterinary Science, Management and Public Administration may be given in either Gujarati or English.
Rule 14 provides for the decision of the Commission to be final as to the
eligibility of candidates for permission to main examination.
Rule 16 provides that the candidates who score qualifying marks as may be fixed
by the Commission in the preliminary examination shall be allowed to appear in main
examination.
Rule 17 which is relevant for the purpose of these petitions reads as under:
“17. The names of candidates shall be arranged by he Commission in the order of merit on the basis of aggregate marks finally awarded to each candidate in the main examination (written) and interview test and in that order the Commission shall recommend the qualified candidates for appointment to the extent of the number of vacancies to be filled in: Provided further that where the vacancies reserved for the candidates belonging to Scheduled Caste, Scheduled Tribe and Socially and Educationally Backward Class (including Nomadic Tribes and
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Denotified Tribes) can not be filled up on the basis of qualifying aggregate marks fixed for general category, the Commission may relax the standard of aggregate marks to make up the deficiency in the reserved posts.”
The pertinent aspect is that the language used is merit on the basis of aggregate marks finally awarded to each candidate in the main examination (written and
interview/test).
Rules 19, 20 and 21 which are relevant for the purpose of these petitions read as
under:
“19. (1) The Commission shall publish, in the official gazette the result of the examination in a single list of Cl.I and Cl.II posts. (2) (a) The result of the candidates, whose names are to be recommended to the Govt. for the appointment to the posts of Cl.I and Cl.II shall be arranged according to the order of merits of candidates along with the seat number and the total marks obtained by each candidate. (b) The Commission shall also display on its notice board the result of unsuccessful candidates containing the names, seat number and total marks obtained by each of the candidate. (3) The Commission shall send a copy of result so published in the official gazette to the Govt. 20. A candidate who desires to have his marks of preliminary examination rechecked, may apply to the Commission along with such fees as may be fixed by the Commission for each paper within a period of 15 days from the date of declaration of result of the preliminary examination. 21(1) A candidate who desires to have his marks of main examination rechecked may apply to the Commission along with such fee as may be fixed by the Commission for each paper within a period of forty five days from the date of declaration of the final result of the main examination. (2) A candidate who desires to have the marks sheet of the main examination shall apply to the Commission along with such fees as may be fixed by the Commission within a period of fifteen days from the date of declaration of the final result.”
Rule 22 provides for forwarding the result to Government and the list of candidates who are recommended for appointment.
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7. The first grievance voiced on behalf of the petitioners of both these categories is
in respect of non declaration of result or the marks obtained by the candidate in the
preliminary examination or the main examination, as the case may be. In my view, there
is considerable force in the contention raised on behalf of the petitioners in challenging
the action of the GPSC in not declaring the marks secured by the candidate of both the
aforesaid examinations. Mr. D.N.Patel, Ld. Counsel appearing for the GPSC submitted
that there are different opinions regarding disclosure of marks to the candidate and the
obligation on the part of GPSC. However, he made the statement at Bar that the GPSC
shall abide by the direction as may be given by this Court for declaration of marks and
the GPSC shall not raise the issue for such purpose.
8. In my view, as such, GPSC ought not to have waited for the direction of this court
and the perusal of Rule 6 itself provides for the declaration of result of unsuccessful
candidates, seat numbers and total marks obtained by each candidate. Since there is an
express provision made for rechecking of marks at preliminary examination as per rule
20 and at the main examination at Rule 21, on harmonious construction of Rules 19, 20 &
21 it appears that it is obligatory on the part of the Commission to display on its notice
board the result of unsuccessful candidates with their names, seat numbers and total
marks obtained at the time while declaring the result of preliminary examination and also
at the time while declaring the result of the main examination. If such construction of
rules 19, 20 & 21 is not made and if it is read that the total marks and the result of
unsuccessful candidates has to be declared after the completion of process of
interview/test then Rules 20 & 21 shall be rendered redundant. Therefore, it is required
that after completion of preliminary examinations or the main examination, as the case
may be if the marks scored by the candidates are declared the same would enable the
candidate to apply for rechecking either of the marks of preliminary examination or of the
marks of main examination. Even otherwise also the construction and interpretation of
rules in my view would be in he larger public interest to have the transparency in
conducting the examinations of public administration and public employment. If the
result is declared with the marks, more particularly, of the unsuccessful candidates, then
only they would be able to know as to whether they should apply for rechecking or not.
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It may be that the Commission may make such declaration of marks fixed for qualifying
standard but in any case it should be declared prior to the deemed date of next step in the
selection, namely, that the result of preliminary examination must be declared prior to
deemed date of conducting main examination and the result of main examination with the
marks should be declared before the deemed date of oral interview. Since learned
counsel for GPSC has made statement at Bar for inviting directions from this Court as
stated herein above I find it proper not to discuss the said aspects further in detail but
suffice it to say that the approach on the part of GPSC in not declaring the result with the
marks to the candidate concerned runs counter to the statutory provisions and is against
the principles of transparency in the public examination of public administration and
public examination of public administration and public employment and the action to that
extent of the GPSC of not declaring the result of marks of candidates concerned deserves
to be depricated and quashed. The aforesaid, in my view, would be sufficient for the
point which incidentally has arisen for consideration of the court.
9. The aforesaid takes me to examine the contentions raised on behalf of petitioners
for challenging the power of GPSC to apply method of scaling, and the method and
manner applied by GPSC for scaling and thereby to deny the equal opportunity to
candidates in the public employment for public demonstration. Ld.Counsel M/s
K.B.Pujara, mukul Sinha R.K.Mishra, Y.S.Lakhani and Karia have made submissions on
behalf of petitions. Mr.Pujara has mainly contended that there is no authority to travel
beyond the rules by the GPSC and in his submission there is no power to apply scaling
method. He submitted that even if it is assumed for the sake of argument that there is
power then also it should have been notified either in the advertisement or in the rules
and in the absence thereof it results into modifying various stipulations of the
advertisement and making alteration in the eligibility criteria. Mr.Pujara relied on the
judgment dated 11.12.2002 of the Division Bench of Allahabad High Court in the matter
of Subhash Chandra Pandey Vs. State of UP and others to contend that the application of
scaling is creating absurd results and hence method of applying scaling of marks by Uttar
Pradesh Public Service Commission was struck down by the decision bench of Allahabad
High Court and he submitted that SLP against the said judgment is also dismissed by the
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Supreme Court, Mr.Mukul Sinha while supporting the contention of Mr.Pujara has
submitted that the work “marks obtained” must receive its natural meaning which would
be raw marks and not scaled marks. Mr. Sinha also submitted that even the formula
which has been applied for the purpose of scaling by GPSC is not as per the
recommendation by Mr.Natarajan’s book upon which reliance has been placed by the
GPSC. He submitted that there is total non application of mind on the part of GPSC in
applying the formula which has brought about absurd results. Mr. Sinha also submitted
that the purpose of any competitive examination is to examine the competitive merits and
applying statistical formula results into conversion of competitive merit which crates
drastic results. The conversion formula in his submission cannot be applied for assessing
competitive merit of candidate concerned. Mr. Sinha also submitted that when the
scaling method is applied and for the first time as admitted by GPSC in the competitive
examination of public demonstrations the burden is upon the GPSC to justify the scaling
method and in his submission there is absolutely no justification in applying the scaling
method in optional subjects. He submitted that there is no material placed before the
court as to why such comparison of the marks was necessary and the material which has
weighed with the GPSC for applying scaling method in optional subjects. In furtherance
to his contention, he has given an example by adding one optional subject as “Greek” and
he submitted that if the candidate who has scored “0” marks in Greek language and if the
formula which is applied by the GPSC is made applicable for the purpose of scaling
taking base of total number of candidates appearing in the Greek language are 2, then in
that case the scaled marks shall be marks shall be “1” though the candidate has secured
“0” marks in the said subject. Therefore, in his contention same brings about absurd
result by applying scaling method. He also submitted that the principle of providing
optional subject as per rule as a consequence of applying scaling method in the optional
subjects is not only frustrated but the benefit is also taken away and in his submissions by
applying scaling method unequal candidates are treated as equal which violates Articles
14 & 16 of the Constitution of India. Mr.R.K.Mishra submitted that the strict
interpretation of rule is required to be made and when the rule itself is clear it can not be
read so as to include application of scaling while awarding marks. Mr. Lakhani
submitted that since the actual raw marks are not declared the correct picture is not
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energing and in his contention on account of scaling the meritorious candidates are
pushed down as against non-meritorious candidates. Mr.Paresh Upadhyay submitted that
the scaling would be required only when the raw marks are not comparable. In his
submission raw marks are comparable and therefore it was not at all necessary for
applying scaling method. He submitted that the GPSC has blindly adopted the formula
by mechanical exercise of power as discussed in the judgment of Rajasthan High Court.
Mr. Karia has supported the contentions raised on behalf of petitioners.
10. Ld. Counsel Mr.Patel appearing for the GPSC has submitted that the scaling is a
well-accepted modern method of comparing the merit of the candidates inter se in
different optional subjects. In his submission a candidate securing raw marks in History
cannot be compared on the basis of raw marks secured by another candidate in Science
subject and therefore scaling is required. Mr.Patel submitted that the Division Bench of
this court in its judgment reported in 1987 (1) GLR 517 has accepted the method of
scaling applied by UPSC as a modern method and he also submitted that the Division
Bench of Rajasthan High Court in its unreported judgment dated 19.8.94 in case of
Mahesh Kumar and others vs State of Rajasathan & Ors has also confirmed the
application of method of scaling by the RPSC and against the said judgment of the
Division Bench of Rajasthan High Court SLP is also rejected. Mr.Patel submitted that
the method of scaling examined by the Division Bench of Allahabad High Court was
different and was wrong because it was on the basis of assessment of one examiner only
as the model which is not in the present case, he submitted that the method applied by the
GPSC is as per the recommendation of Mr.Natarajan in the book called “Scaling
Techniques, what, why and how” and the very method was applied by RPSC and its
legality and validity is accepted by the Division Bench of Rajasthan High Court. He
submitted that the contentions which are raised on behalf of the petitioners are in terms
negatived by the Division Bench of Rajasthan High Court and therefore there is nothing
wrong in applying scaling for assessing comparative merit. He also submitted that as per
well settled principles of law this court would normally not substitute its wisdom in the
field of education and of conducting examination and they are left to the expert bodies
constituted for such purpose. Mr. Patel during the course of his arguments has submitted
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that even by applying scaling method the merit order within the subject is not being
altered until while considering the total number of marks in all subjects are considered.
He also submitted that the majority of candidates who are meritorious are not affected by
applying scaling method. In furtherance to his submission Mr. Patel has made statement
at Bar that after applying scaling method on the total aggregate marks 815 candidates are
called for interview. If the basis would have been raw marks number of candidates who
were required to be called and interviewed would be 832 because for a particular number
of marks there may be more than one candidate in terms of raw marks. He further stated
that out of the candidates called on the basis of scaled marks or on the basis of raw marks
898 candidates are common, in other words, whether system of raw marks or system of
scaling is applied, it makes no difference to their merit and they stand in the merit upto
Sl.No.698. He further sated that if the scaling method is approved by the court then 117
candidates will be required to be called who have been called for interview in addition to
698 candidates will enter into interview itself, and if the scaling method is not approved
and order is passed for preparing merit order on the basis of raw marks then in that case
134 candidates shall be required to be called for interview itself and the aforesaid 117
candidates shall go out from the interview itself.
11. He clarified that there is a difference of 117 candidates as pr the scaled marks as
against 134 candidates on the basis of raw marks. He also submitted that the aforesaid
picture is in general irrespective of the fact that whether the candidate has preferred
petition before this court or not. Mr. Patel has further stated that in all there are 320
candidates before the court who have preferred petitions either in group or individually
and out of the petitioners before the court if the method of scaling is upheld by the court,
then the position shall remain unaltered but if the court gives direction to GPSC to call
the candidates on the basis of raw marks restricting to the case of the petitioners before
the court then only 19 candidates who are petitioners before the court shall be eligible for
interview itself on the basis of raw marks and all other petitioners who have secured less
marks than the qualifying marks at the examination are not in any case eligible for
interview itself. He submitted that therefore there is no much difference in he merit on
all the meritorious students are not affected in any manner seriously because in any case
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even after the interview itself the list to be prepared would be only of 255 candidates as
against total number of candidates to be interviewed which is of 815 as per the scaled
marks or 832 as per raw marks, as the case may be.
12. Mr. Sonal Vyas appearing on behalf of candidates who have been called for
interview after applying the scaling method and who are allowed to be joined as
respondents in SCA No.310/03 has supported and adopted the stand taken by the GPSC
in applying the method of scaling at the marks.
13. In view of the aforesaid contentions raised so far as the application of scaling
method by the GPSC is concerned, in my view, the first contention which is required to
be considered is regarding the power to apply the scaling method by the GPSC. As
observed earlier the contention on behalf of the petitioners is that there is no authority on
the part of the GPSC to apply scaling method since the rules do not provide for
application of such scaling. Reliance was placed upon the rules on behalf of the
petitioners to show that there is reference to the marks obtained and marks obtained
necessarily mean the raw marks and not scaled marks. It was also contended that by
plain and simple reading of rules the meaning can be given by interpretation of rules and
the court would not add words. In my view such contention deserves to be rejected on
the face of it because as per article 320 of the Constitution of India the Union and State
Public Service Commission are enjoined with the duty to conduct the examinations and
the Commissions are constitutional bodies for the purpose of conducting examinations.
All actions from the inception and until the declaration of results of all types of tests
which may be found proper by the Commission are put under the direct control and
supervision of GPSC. Rule cannot be read as exhaustive for the purpose of conducting of
examinations. There may be large number of eventualities which are not and/or which
may not have been envisaged under the rules, but it will be within the control and power
of the Commission to decide the modalities and the method to be adopted for such
purpose. Therefore, I can not accept the contention that the marks obtained is necessarily
to be meant as raw marks and not scaled marks. In any system of examination the
moderation is a well accepted principle for the purpose of getting the best result through
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the examiner. If the argument is accepted as that of raw marks then in that case even
will have to be excluded and thereafter marks examiner are to be
accepted as final. Intention of the rule making authority and such construction, in my
view, would run counter to the purpose for which the Public Service Commissions are
constituted. Therefore, in any view the work “marks” as referred to in the rules can be
read as marks finally awarded or approved by the GPSC and it cannot be read as raw
marks awarded by examiner concerned. Even reference to Rule 17 shows that the
language used is “aggregate marks finally awarded to each candidate”. It would be
worthwhile to take reference to the judgment of the Division Bench of the Rajasthan
High Court in case of Maheshkumar Khandelwal (supra). Even in the case before the
Rajasthan High Court such a contention was raised and reference to the same was made
at para 44 of the judgment of the Division Bench of Rajasthan wherein view taken is that
the scaled marks are also marks obtained for the purpose of said rules and scaling of
marks does not violate the scheme of the examination. Ld. Counsel Mr.Pujara appearing
for the petitioners has relied upon he judgment of the Apex Court in he matter of State of
UP vs Shyam sunder reported in 2000 (10) SCC 49 and in the matter of Praveen Singh vs
State Punjab & Ors reported in AIR 2001 SC 152 as well as M.Mihra also relied on the
judgments of the Apex Court reported in the matter of Union of India vs Sankalchand
Himmatlal Sheth and Anr. reported in AIR 1977 SC 2328 in the matter of Chief Justice
of A.P. vs L.V.A.Dikshitulu reported in AIR 1979 SC 193 and in the matter of Om
Prakash Gupta vs Dig Vijendrapal Gupta reported in AIR 1982 SC 1230 to contend that
the strict interpretation is called for on the work “marks” and if the scored marks are to be
considered it is a deviation form the norms settled for the purpose of awarding marks. In
my view, there is no question of interpreting the works “marks” as sought to be
canvassed by the learned counsel for the petitioners. It is always left to the body which
conducts the examination decide the method or the manner of assessment of marks. Even
if the examiner has awarded marks it is now well settled that the system of moderation is
always permissible with a view to reduce the difference amongst the assessment between
two examiners. When the number of students and number of examiners are also more the
assessment may differ from one examiner to another examiner. As observed earlier, the
scheme for conducting examination as provided under the rules cannot be exhaustive in
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all respects. In my view there is no express provision made in the rules about method and
manner of assessment of marks and therefore in the absence thereof it is to be deemed
that such scheme is left to the discretion and wisdom of public service commission which
is conducting the examination. It cannot be read that since there is no provision under the
rules there is no authority with the GPSC to decide the modality or mode of assessment
of marks. Similarly, in the advertisement for such purpose in my view all steps are not
required to be mentioned which can be undertaken for the purpose of conducting the
examination or for the purpose of deciding the modalities for assessment of marks. The
judgments upon which reliance placed by Mr.Pujara are altogether different in facts and
circumstances and hence reliance placed is ill-founded. Therefore, I am of the view and
contention that the GPSC has no power to decide the modality or method for assessment
of marks, may be by scaling, is devoid of any merit and therefore deserves to be rejected.
14. Even if it is assumed that there is power with the GPSC to decide the modalities
and methodology for assessment of marks and its finalisation, then also it would be
necessary to examine the crucial issue as to what is scaling and whether scaling is
accepted as a modern method for the purpose of assessment of marks and the another
aspect which would be required to be examined is whether the formula applied by the
GPSC for the purpose of scaling of marks is on rational basis with the full consciousness
of mind and after undertaking the studies and whether by application of such formula for
scaling absurd results are brought about. In my view before the aforesaid aspects are
examined, it is necessary to take note of the scope of judicial power in the matter of
conducting of examination or in the matter of assessment of marks. The law is settled on
the said point that normally the court would not be substituting its wisdom in place of
wisdom of academicians to decide the method and manner of conducting the examination
and also for the method and manner of assessment and awarding of marks unless such
action is arbitrary, irrational, unconstitutional or prohibited by law or such application
brings about absurd results which has resulted into great injustice. Keeping the aforesaid
scope of judicial review the matter will have to be examined.
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15. Since on the method of scaling or what can be scaling no other book is made
available nor the learned advocates of the petitioners have drawn the attention of this
Court with a view to better understand “the scaling” in detail, this court with a view to
advance the cause of justice has found it proper to make reference and to some extent rely
upon some of the websites available on internet. In my view, when our country has made
law prohibiting cyber crimes and on the basis of modern methods of computer, E-mails,
internets, the laws are also amended, in such relevant material available on internet can
be used for knowledge purpose and also for resolving disputes sometimes. In www.
Satac.Edu.Au. a web site available on internet under the head of “Scaling—What, why
and how-2001” the scaling is described as under:
“Scaling is a mathematical process which adjusts the results students achieve in their various SACE stage 2 (year 12) subject to that the students can compete on a fair basis for entry to University and TAFE courses.”
With a view to understand in a better way it has also been provided in the said scaling as
to why scaling is necessary which is quoted as under:
“The subject content, the types of skills they measure, the way they are assessed and the range of abilities among the students varies from subject to subject. Because of this, no direct comparison can or should be made between subject achievement scores in one subject with those in another:
Look at the scores below:
Danny Jason
Subject Subject Achievement score
Subject Subject Achievement Score
Biology 16 Biology 14
Business Maths 16 English 14
We can say that Danny did better in Biology than Jason did. But, this is all we can say. We can not say for instance that Danny did better in Biology than Jason did in English. We cannot even say that Danny did equally well in both Biology and Business Maths. Even more importantly, we can not say that danny’s ‘total’ of 32 for his two subjects is ‘better’ than jason’s ‘total’ of 28 for his two.”
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The material shows various modes including “equal achievement” from scaling in
practice has been provided. The important points to be noted about the scaling are
mentioned as under:
“Scaling is done on the raw scores which are scores out of 200 rather than on the subject achievement scores which are out of 20—this allows for greater accuracy. It is, therefore, possible for two students to have the same subject achievement score in a subject but different scaled scores. Say, for example, that Kim gets a raw score of 138 in Biology and Lee gets 144 but both receive a subject achievement score of 14. Kim’s raw score of 138 might be scaled to 14 but Lee’s a raw score of 144 might be scaled to 14.5. Scaling has the greatest impact on middle range scores-very high and very low scores are least affected by scaling. The amount by which a subject is scaled depends upon group preference, not the performance of an individual. Scaling does not chance the order of students in a subject. If Tanya’s raw score of Biology was higher than Sophie’s then her scaled score for Biology will also be higher or atleast equal to Sophie’s scaled score” “When the scaling process has been completed the scaled scores are used to calculate a TAFE Selection Score and a University Aggregate for each eligible student. For University courses, a Territory Entrance RANK is calculated from the University Aggregate for each eligible student.”
16. In the material available on web site on internet http:Science.ntu.ac.uk/msor/ccb/
scaling.html marking and scaling of course work and tests in different examinations have
been provided.
17. In view of the aforesaid material and other material available for scaling on
internet, it appears that the scaling is a technique adopted for assessment of merit of
student who has passed examination from different Colleges or Board for entry to degree
course in the university. There may be a different syllabus in A school or A Board while
comparing with A School or A Board, the standard of assessment by the examiner may
also vary. With a view to extract comparative merit of two candidates in different
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subjects the scaling is considered to be a modern technique. However, as observed
earlier, in the material referred to herein above, it appears that the merit order remains
same within the subject and by scaling the majority sufferers are the middle merit group
candidates neither topers nor those who are in the lower grade. In developed countries
normally there is no marking system and the system prevalent is on the basis of
gradation. The scaling is considered to be well established method for the purpose of
entry to a common stream or various better streams having their different origins in
education. The ultimate purpose appears to be to assess the comparative merit or
performance of candidates in different subjects or in same subject having different origins
or different examiners. Even in the judgment of the Division Bench of Rajasthan High
Court as well as of this court in the matter of Kamlesh Haribhai Goradia vs Union of
India reported in 1987 (1) GLR 517 reference is made to the method of scaling for the
purpose of assessing comparative merit. Therefore, I am of the view scaling or raw
marks is one of the modern methods accepted amongst academicians for assessing the
comparative merit of student from different college or university, as the case may be.
18. The aforesaid takes me to examine the reasons behind scaling and the method
adopted for scaling by the GPSC. I find from various material which re available on
internet there are large number of scaling techniques which ay e applied by the Body
which is using the scaling method for assessing the comparative merit of candidates. In
the web site on internet http://science.ntu.ac.uk/msor/ccb//scaling.html under the head
“Scaling, advice and guidelines for students 9 September, 2002) material is provided to
the students regarding scaling method adopted by all universities. One of the methods
provided is as under:
Scaled = 50 + 3 (Raw-50)/5
It has been provided that this formula brings raw marks of 100% down to a scaled
mark of 80%. It has also been provided that mean to be applied which will be a standard
mean depends upon the overall assessment of difference and the formula to be adopted
for such purpose, which may vary from case to case.
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19. So far as the GPSC is concerned, as per the defence raised in the affidavit in reply
it has been submitted that they have followed the method recommended in a book of
IV.Natarajan known as “Scaling Techniques, what, why and how”. Reliance was placed
upon the concluding portion which is also reflected in the affidavit in reply at para 5
onwards. The book of Mr.Natarajan is made available to the court and at the concluding
portion it is narrated at page 43 as under:
“Based on the findings of the research studies quoted earlier the following
seven areas have been identified which warrants adoption of scaling/equating
techniques:
(1) When many examiners are involved in marking the scripts relating to a
subject;
(2) When scripts relating to two subjects one set answering in English and
the other in a regional language have to be scored;
(3) When marks relating to different subjects are to be added so as to get
an aggregate;
(4) When internal audit and external assessment marks are to be added
and/or compared;
(5) When student performance from different school Boards, Universities
are to be compared;
(6) When marks relating to objective part is to be added with that of essay
part in a paper; and
(7) When candidates’ performance in alternate forms of an objective
question paper are to be compared.”
20. Mr.Patel Ld. counsel appearing for the GPSC has submitted that so far as the
present case is concerned, the GPSC has taken into consideration the contingencies or the
areas narrated at items (1) and (3) above for the purpose of applying method of scaling.
After identifying the areas in the very book, the techniques have been further narrated
areawise. So far as the first area where many examiners are involved in marking the
scripts in a subject so concerned, the discussion begins from page 146 onwards of the
said book. Possibly the contention sought to be raised on behalf of the GPSC is that since
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there are number of students and number of examiners marking scripts in a subject it was
advisable to apply scaling method as recommended by Mr.Natarajan in the said book.
Prima-facie, the said contention appears to be attractive but upon close scrutiny it appears
that same is the case for compulsory subjects too. Number of examiners marking the
scripts in compulsory subjects are more in comparison to optional subjects. However, for
the reasons which are not disclosed in the affidavit in reply the GPSC has not decided to
apply scaling method on the raw marks obtained in the compulsory subjects. If the
contention had been so genuine and bonafide, in my view in the compulsory subjects it
was more required to apply scaling method in comparison to optional subjects because on
the basis of figures supplied during the course of hearing in the preliminary examination
sine the number of students was 70115 the number of examiners in any case in
compulsory subjects would be much more in comparison to the number of examiners in
optional subjects. The original file of the GPSC containing the noting and other relevant
papers was made available to the court for perusal and statement on page 27/C shows that
as against total number of students of 70115 in compulsory subject in optional subjects
the number of students in majority of cases appearing below 5,000 and it was only in case
of Economics the number of students was 7803, in History 14714, in Gujarati literature it
was 6631 and in Commerce it was 7191. Therefore, out of 37 optional subjects, in 33
optional subjects there were less number of students than 5000 and as a consequence
thereof the number of examiners would be naturally less on account of students less than
5000. Similar was the case for main examination. The figures which are supplied to the
court goes to show that in compulsory subjects number of students were 7963 whereas
number of students in optional subjects in majority of cases were less than 500. It was
only in Economics it was 540, in History it was 1352, in Geography it was 2008 and
Political Science it was 633. In other words, not only in 4 subjects out of 2 optional
subjects the number of students were above 500 and in the compulsory optional 28
subjects number of students was less 500. Mr. Patel has made a statement at Bar that
total number of students who appeared at the main examination are 4086 and figure
shown in the statement which is supplied to the court during the course of hearing was
7963 is on the basis of candidate who have opted for two optional subjects and each
appearance is separately considered and therefore if a candidate has appeared in two
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optional subjects though there may be one candidate but the figure would be two and if
he is absent during the examination of any optional subject he will go away from the total
figure of 7963 and that is how the figure of 7963 is arrived at. The aforesaid figure
clearly goes to show there were 209 candidates at the main examination in optional
subjects who appeared in either out of two or in one optional subject. In spite of the same
their marks are taken into consideration for the purpose of arriving at the figure of
combined mean.
21. The aforesaid figures clearly goes to show that the number of examiners marking
scripts in compulsory subject at the preliminary examination as well as the main
examination would be much higher and to be more specific in majority of the cases 14
times more in preliminary examination and 15 times more in the main examination. In
spite of the same, the GPSC has taken decision to apply formula of scaling method only
in optional subjects at the preliminary examination as well as at in examination and not in
compulsory subject. Had the defence of the GPSC been genuine for accepting the
recommendations of Mr.Natarajan as mentioned in the book the first step in this regard
should have been to apply scaling method also in compulsory subject but there is no
explanation in this regard as to why the decision is not taken to apply scaling method
formula as suggested by Mr.Natrajan in compulsory subjects.
22. It was also alternatively submitted on behalf of GPSC that the purpose of not
applying scaling method in compulsory subjects was because subjects were common and
it was only in case of different subjects the comparative merit was to be assessed and
therefore the area identified at figure 3 in the book of Natarajan was made applicable.
Even close scrutiny of said alternative submission shows that the discussion for such
purpose is at page 201 para 6.2.2 in the said book which shows that if a university is
reporting the performance of the students in terms of grades which are in turn based on
certain range of marks then it can prescribe the percentage of candidates to get various
grades. But even while suggesting the said method the author has recommended as
under: “Of course, the scripts have to be randomised before being sent for valuation”.
There is no material produced by GPSC before the court nor even such is the defence in
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the affidavit in reply that for correction by any examiner in any subjects is sent for
valuation by way of random, simple or otherwise. Mr. Patel made an attempt to contend
that in the very paragraph an alternative mode is suggested, namely, the Linear Standard
score may be applied keeping the mean and standard deviations to which the marks are to
be scaled constant for all the subjects. But it is pertinent to note that the author has used
the language in this aspect as under:
“Of course, this is a difficult problem to tackle. For a period of time, the performance of the students after scaling of marks in different subjects may be observed. If the mean and standard deviation marks used as the standard in different subject do not differ appreciably then those figures may be taken as the standard. Therefore, a continuous study of data is necessary.”
23. It appears that the author has suggested the same in a matter where there is
continuous assessment of a candidate. He has suggested to accept the figure if the
different subjects do not differ appreciably. No material is produced nor such submission
is made that the figure of different subjects do not differ appreciably. On the contrary,
the contention of GPSC is that there can be no comparison of raw marks in two optional
subjects.
24. Before the question is examined regarding the method applied by the GPSC for
scaling, it is necessary to consider certain aspects which prompted the GPSC to apply
scaling method. As recorded earlier, the statement has been made at Bar that the reasons
for applying the scaling method at the preliminary examinations is the same as that for
main examination. Upon the request of the learned counsel for the parties original file
has been called upon with the notings thereto from the GPSC. A perusal of the noting
dated 26.9.01 at the time when the GPSC had to undertake the exercise of scrutiny of
preliminary examination results it has been mentioned that if the marking is given on the
basis of raw marks the candidates of History subject shall have more representations and
the other candidates who opted for the other subjects will not have proper representation.
Even Note No.3 shows that the intention is to give representation to the candidates of all
optional subjects equally. The pertinent aspect is that upon the note one of the members
of the GPSC had recorded that if such criteria is adopted it may result into making
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reservation or extracting of the candidates on the basis of optional subject and whether
the same would be in accordance with the rules or law or precedent and it is also
mentioned that it may be examined as to whether in UPSC such things are adopted or not.
Even Note No.3 which is there in the file of preliminary examination shows that the same
is permitted with a view to give equal representations to the candidates opting for each
optional subject. Even the second note, dated 1.10.01 reiterates the same thing, namely,
there is representation of 63.64% to the candidates opted for one or two optional subjects
and the rest of the candidates opting for 26 different subjects as well as representation of
38 and therefore it has been mentioned that for equal representation to the candidates of
all the subjects proper justice should be rendered. The aforesaid clearly goes to show that
the intention on the part of GPSC is not to assess the comparative merit of a student for
the purpose of applying scaling method, but is with a view to give equal representation or
to make equal treatment to the candidates on the basis of optional subjects by not only
considering raw marks. The consequence can be that each candidate opting for different
optional subjects must be given a representation at the time of deciding the method of
marking. In my view such reasoning would basically frustrate the purpose for giving
choice to the candidates of having optional subjects. There is no warrant or authority
with the GPSC to make equal representation to the candidates of different subjects. It is
volition on the part of candidates to opt for subjects and the scheme of aforesaid statutory
rules itself provide for. Whereas, the candidate having opted for A or B subject, the
performance is only to be assessed and it cannot be said that merely because A has opted
for X subjects and the number of candidates in X subjects are more they should not be
given representation or less representation be given. The net effect is that the GPSC had
made an attempt to make reservation on the basis optional subjects which is not at all
warranted in law. What is called for or what is rather required for GPSC is to assess the
merit and it is open to the GPSC to assess comparative merit also but the consideration
for which the scaling is applied and the noting in the file of GPSC clearly goes to show
that the same is not with an intention to assess the comparative merit but is with an
intention which is not warranted under law of making reservation on the basis of optional
subject to each candidate. Even the formal statement which appeared on page 23/C
shows that for each optional subject a degree of representation from each subject is kept
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in mind. The consequence would be that there will be a less representation of a candidate
opting for X or Y subject if there are more number of candidates and the candidate who
opted for an optional subject and the number of candidates are less in that optional
subjects will get higher opportunity. In my view this was not at all warranted on the part
of GPSC to make reservation on the basis of optional subject or to apply scaling method
with an intention to give representation to the candidates opting for different optional
subjects. In any event, no such criteria or stipulation was provided at the time when the
advertisement was issued nor there is any warrant for applying such reservation on the
basis of optional subject even as per the statutory rules framed for the purpose of
conducting examination. On the contrary, the scheme of the rules is to see that
candidates are equated equally irrespective of their choosing optional subjects. Under the
circumstances, I find that the reasons prompted the GPSC to apply scaling method is in
reality not for assessing the comparative merit of the candidate in different optional
subjects but is with an intention to give representation on the basis of optional subject
equally in such a manner that where number of candidates is more such candidates will
get lesser representation and where number of candidates is less such candidates will et
higher representation, both in compression to total number of candidates appearing in the
preliminary examination.
25. Since it has been submitted that the reasons for applying scaling method for
preliminary examination and the main examination are the same, the consequence is that
the application of scaling method or rather purpose for applying scaling method at the
preliminary examination as well as at the main examination is ultra vires the power of
GPSC. In the affidavit in reply there is no tenor or whisper regarding said aspects, but
the GPSC which is a constitutional body in my view cannot go beyond the notings or
cannot disclose the stand contrary to their own original record and as observed earlier the
original record more particularly the file of preliminary examination and the noting made
therein clearly goes to show that it is with an intention to make reservation on the basis of
optional subjects which in my view has frustrated the laudable public purpose of applying
the scaling method for assessing the comparative merit in different same or optional
subjects.
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26. In order to understand the scaling method and its application while giving final
marking in the examination some observations and the material is referred to in the
earlier part of this judgment and as observed earlier the reliance is placed on the material
available on internet because except the book of Natarajan no other material of any expert
is produced by either side. Such material referred herein above shows that it can also be
used as the material by experts known worldwide website. Basically the scaling is with a
view to equalise the marks by eliminating the differences. Such equalisation is required
because of different method of assessment by different examiners and also because of
different nature and complexity of a subject and also the different method of question
papers etc. There cannot be any wholesome exercise of putting all marks in a common
pool and to arrive at mean which will be treated as a standard mean and the deviation
therefrom shall be excluded and the marks will be scaled. The first and foremost
requirement would be to undertake the exercise of difference of marking system by each
examiner. After such difference is recorded and taken note of a formula as provided by
the expert shall be applied for arriving at difference between the method of assessment by
each examiner or rather a particular examiner. A group of papers assessed by an
examiner are required to be taken as a sample and thereafter the assessment by various
examiners is compared and then the difference is taken note of. Such difference shall
vary on facts of each examiner but then only the standard difference can be arrived and
thereafter the said difference would be made applicable on the basis. There is absolutely
no material worth the name is produced on record by the GPSC nor it is even the case of
GPSC that they had any material to show that there was difference in the assessment
between the examiners or difference in question papers, complexities among optional
subjects. I am of the view unless and until the difference between the method of
assessment between the examiners is found out and thereafter the standard mean is
arrived the formula cannot be applied at all. Even in the judgment of Rajasthan High
Court upon which the reliance is placed by GPSC on the basis of assessment made and
the difference between the examiners, M was taken as 95.59 being the average marks
obtained by the candidates in general knowledge and general science papers. Therefore
when the Rajasthan PSC applied the formula at the preliminary examination the basis
was the average marks obtained by the candidate in general knowledge and general
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science and the same was taken as 95.59. There is no whisper on the part of GPSC to
show the value of M arrived at by it taking into consideration the marks obtained by the
candidates in general or compulsory subjects at the time of preliminary examination or at
the time of main examination, as the case may be. The stand of the GPSC is that they
have applied the same method as it was applied by Rajasthan PSC and also even applied
by the UPSC is factually not correct. As observed earlier the method applied by
Rajasthan PSC was on the basis of mean given value of 95.59 which was on the basis of
performance in general and compulsory subjects by the candidates which is to at all
considered by the GPSC while applying the formula for scaling. Even the original file of
GPSC on “Seminar (Orientation Programme) on the issue relating to supplying of
Moderation and Scaling” shows that so far UPSC is concerned it has been recorded at
Column applied by UPSC for inter-subject moderation is applied different and that
system of moderation is applied for comparing the interse merit and thereafter if there is
variation in the marking of optional subjects then only the suitable scaling method is
applied. Even the noting dated 9.9.2001 of the aforesaid file of the GPSC shows that it
was initially suggested to apply moderation on all optional subjects by taking sample of
about 25%. However, since it was likely to take more time the same is given go by. As
observed earlier, unless the moderation takes place, it is practically impossible to find out
the difference in the method and manner of assessment of marks between two examiners
but nothing of the aforesaid file shows that since it was to result into examination of
about 1000 answer books and since it was likely to take more time the decision is taken
by the GPSC not to adopt the method applied by the UPSC and to proceed with same
scaling method as it was there at the time of preliminary examination. It further appears
from the said original file that thereafter in 10 subjects to some extent the moderation had
taken place and regarding the same the reference is there in the note dated 16.11.2002
and not only that but thereafter as per note dated 3.12.2002 it was also decided for
remoderation. Still, however, it appears that the stand of the GPSC in the present case is
to insist for making system on the basis of scaling method without fulfilling the
conditions before such method is applied. Therefore, the GPSC is not right in contending
that the even in the public service examination conducted by the UPSC the method and
formula applied for moderation and scaling is the same.
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27. As observed earlier, even while taking decision of applying scaling method it has
not at all undertaken the basic requirement of finding out the difference between
examiners and then to apply scaling method on the basis of difference which is known as
valuation or value. It appears that by mechanically applying the formula in part, the
scaling method is applied. The formula is applied on the basis of the performance of a
candidate in various optional subjects would be the same and the method of marking
system by different examiners in an optional subject is also the same. This non-
application of mind on the part of GPSC would certainly bring about absurd results. Mr.
Sinha appearing for some of the petitioners has given a hypothetical statement to say that
how this formula applied by the GPSC has brought about absurd results. The same is as
under:
Subject Student Raw Marks Value of M X
Roll No (XI)
A 1 90 63 90 0 @
B 2 85 63 85 0 @
C 3 70 63 70 0 @
D 4 45 63 45 0 @
E 5 25 63 25 0 @
The consequence is that a student score 90 raw marks will get 43 scaled marks. A
student scores even 25 marks in a different optional subject will also get 63 scaled marks.
Had it been the case of GPSC that because of difference in the method of assessment by
the examiner or the difference in the method of question paper it was necessary to
equalise the marks by applying scaling method the matter would have been different. In
any case, even before applying the formula the difference must be examined and must be
taken note of. On the basis of said difference, a standard mean shall be arrived at and
then only the formula can be applied. Even in the judgment of the Division Bench of the
Rajasthan High Court in the matter of Mahesh Kumar Khandelwala (supra) upon which
the reliance is placed upon internal page 50 the same is taken note of and the raw marks
are scaled examiner wise and then they are equated, whereas in the present case the
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marks are not at all scaled by eliminating the difference of marking system by the
examiner nor they are scaled by eliminating the difference in the complexity of difference
optional subjects and the method of marking therein. The aforesaid in my view goes to
show that a medicine or a system may be modern, but its application thereof is absolutely
without proper application of mind and it is a case of mechanical exercise of applying
arithmetical formula that too in part without there being any proper material for the same
and without fulfilling the condition precedent for such purpose of finding out the
difference by taking note of assessment by different set of examiners. It was expected for
the GPSC to consult the expert for the said subject and then to have the moderation and
to find out the difference and with a view to eliminate the different scaling method proper
formula could have been applied. Such is not the case here and therefore I am of the
view that the scaling method which is applied by the GPSC at the preliminary and also at
main examination is with the purpose which is not warranted in law and is without there
being proper material and is also without proper application of mind.
28. Much reliance is placed upon the judgment of the Division Bench of this court in
the matter of Kamlesh Haribhai Goradia vs Union of India reported in 1987/(1) GLR 157
and the Division Bench of the Rajasthan High Court in the matter of Mahesh Kumar
Khandelwala (supra). In the case of Kamlesh Haribhai Goradia (supra) a view was taken
by the Division Bench of this court that the process of moderation is necessary to find out
the merit of candidates inter se and the marks cannot be awarded till such uniformity
achieved in the examination. The view taken by the Division Bench is that the system of
moderation and scaling can be applied by Public Service Commission at the time while
conducting the examination and while giving final marking. Therefore, the judgment of
the Division Bench of this court in my view is of no help to the GPSC for supporting the
present scaling method applied by it and it can support only to the extent that the system
of moderation and scaling method can be applied. The Division Bench has never
approved or had any occasion to consider the formula of scaling as applied by the GPSC
in the present case.
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29. In case of Mahesh Kumar Khandelwala (supra) as observed and discussed above
the pertinent aspect is that the affidavit in reply was filed by Mr.M.L.Sharma for which
reference was in para 46 onwards in the judgment of the Division Bench of the Rajasthan
High Court where the figure Xi is arrived at for moderated marks. Even on internal page
49 “m” is referred for mean mark of an examiner. It is taken note in the judgment of the
Rajasthan High Court that “for scaling the marks each examiner’s marks are considered
separately”. Internal page 50 shows that the Division Bench of the Rajasthan High Court
has also considered the conversion equations of different examiners to convert raw marks
to scaled marks. But, the pertinent aspect is that the conversion is considered
examinerwise. At para 47 of the judgment the Division Bench of Rajasthan High Court
has recorded as under:
“We have no reason to doubt the veracity of the sworn statements of S/Shri Y.Singh and M.L.Sharma in this regard”.
At para 49 of the Division Bench has further recorded that “no attempt was made
by the petitioners to file any counter affidavit of any expert in the subject to demonstrate
that the application of the formula used suffered from any material flaws and aberration.”
Further at para 49 of the aforesaid judgment of Rajasthan High Court shows that
the challenge was made to the M at 95.59 and while negativing said challenge the
Division Bench has extracted the assertions made in the additional affidavit in reply of
Mr.Sharma that “the value of M was deliberately taken by the Commission as 95.59
(average marks obtained by the candidates in General Knowledge and General Science
paper which was common to all)”. Therefore, it was true that in the case before the
Division Bench of Rajasthan that the value of M was arrived at on the basis of average
marks obtained by the candidates in General Knowledge and General Science subjects
which is common to all whereas in the present case as observed earlier for finding out
value of M no material whatsoever of any candidate or examiner in compulsory subject is
taken note of (emphasis supplied). Therefore, I find that the judgment of the Division
Bench of the Rajasthan High Court would be of no help to the GPSC for maintaining the
method and manner of applying the formula for scaling.
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30. In view of the aforesaid discussion, I find that even if it is accepted that scaling is
one of the modern methods of assessing the comparative merit and even if it is accepted
that there is power with the GPSC to take decision of applying the modern method for
assessing the comparative merit, the facts of the present case show that the formula
applied by the GPSC for scaling is for different purpose which is not warranted in law
and even the formula applied is also in part and that too is without proper application of
mind and without there being requisite material of difference in the marking system by
the examiner and difference of complexity of subjects.
In view of the aforesaid discussion, I find that the formula of scaling applied by
the GPSC upon the raw marking deserves to be quashed and set aside and hereby
quashed and set aside.
31. It is well settled that the court would normally extend the benefit of relief to only
those persons who have approached before this court unless it results into causing
injustice to other similarly situated persons. Since all these matters are being considered
at a stage where the preliminary examination is over a long back and the main
examination is over and on the basis of performance at the main examination the
interview are to be held by the GPSC, those petitioners who appeared at the preliminary
examination and challenged the system/method of applying the scaling at the preliminary
examination have preferred these petition were admitted, the court had passed the interim
order of allowing the concerned petitioners to appear in the main examination. Those
petitioners who did not challenge the result of preliminary examination before this court,
in my view, would not be entitled to any relief since they accepted the result. So far as
the petitioners who challenged the result of preliminary exam and those who were
permitted to appear at the main examination would only be entitled to the benefit of final
orders passed these petitions.
32. Further if on the basis of the present challenge to preliminary examination, the
relief is granted to all other candidates who suffered but did not prefer petitions then also
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since they have not appeared at the main examination, even otherwise also, no useful
purpose would be served. If declaration of result of preliminary examination is set aside
in toto the consequences would be to set at naught the main examination even though
such other candidates had accepted the marks given and method applied for scaling at the
preliminary examination. If, the main examination which is already held is cancelled, in
my view it may not only result into serious irreversible situation but would also result
into huge expenses for conducting the main examination again, which would require
more public time and money etc. Therefore, I find that since the matters are being finally
heard at a stage when the concerned petitioners were permitted to appear in main
examination and the main examination of or dates is already held, judicial
discretion demands that relief be extended only to the concerned candidates who
preferred petitions challenging the result of preliminary examination and such relief
should be considered by taking care that the main examination may not be required to be
held again.
33. Whereas, such is not the case so far as the main examination is concerned the
result of the main examination is yet not finally given effect and it has come on record
that the process of interview has not yet begun and are postponed by GPSC itself.
Therefore, I am of the view that so far as result of main examination is concerned, it
would stand on a different footing than that of the preliminary examination. Further, as
the second stage after declaration of result of the main examination has not started,
namely the interview, the matter is at the stage after the declaration of result of main
examination. If the result of main examination is ordered to be cancelled on the basis of
such scaling method applied by GPSC in respect of concerned petitioners only then in
that case the GPSC may proceed to act upon the result of other candidates who have not
approached the court and if the interim relief to that extent is considered it would result
into creating irreversible situation. Moreover, on the basis of performance in main
examination and at the interview the select list is to be prepared. Therefore, considering
the facts and circumstances of the case and the stage at which matters are being decided
finally, I find that the relief should not be restricted to present petitioners but it should be
in general with a view to rule out possibility of causing injustice to any candidate who
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has appeared at the main examination but has not approached this court because the
rights, if any, would be interconnected, if performance at interview is subsequently
considered.
34. In view of the aforesaid discussion, I find that following directions would meet
with the ends of justice:
(A) The petitions of the petitioners who have challenged the result of preliminary
examination on the ground of application of scaling formula by he GPSC shall stand
allowed only to the extent that they shall be treated as eligible by GPSC for appearing at
the main examination.
(B) So far as the petitions of the petitioners who have prayed for declaration of result
of main examination as illegal and void and who have challenged the application of
formula of scaling at the main examination are concerned they shall stand allowed to the
extent that the method and manner of applying the scaling method by GPSC at the main
examination in optional subjects is quashed and set aside and as a consequence thereof
the declaration of result by the GPSC of main examination shall also stand cancelled.
(C) It is further clarified and ordered that the GPSC shall not be required to conduct
the main examination again but shall consider the matter afresh keeping in view the
discussion and the observations of this court in this judgment and it will be at liberty to
declare the result of the main examination on the basis of raw marks or to apply the
method of moderation and scaling after consulting the experts and shall declare the result
thereafter in either case. In any event, such exercise of declaration of result shall be
completed by the GPSC as early as possible, and in any case, before the expiry of a
period of four months from the date of receipt of writ of this court.
(D) The GPSC shall also declare the result of each candidate with marks which may
finally be awarded by the GPSC at the main examination and such declaration shall be
made in any case prior to holding of interviews for the post question.
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35. All the petitions are allowed to the aforesaid extent and rule in each petition is
made absolute accordingly. Considering the facts and circumstances, there shall be no
order as to costs.
36. In view of the judgment in main petitions, there shall be no order in CAS and all
the CAS stand disposed of accordingly.
***
208
HARYANA PUBLIC SERVICE COMMISSION
209
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CIVIL WRIT PETITION NO.15159 OF 1996 D.D.8.9.2004
PRESENT : THE HON’BLE MR. JUSTICE J.S.KHEHAR
Ram Phal Singh ... Petitioner Vs. State of Haryana & Others ... Respondents Regulations of P.S.C. – Haryana P.S.C. (Conditions of Service) Regulations 1973 - Pay of Chairman & Members. Petitioner was official Member (erstwhile Government Servant) - His remuneration was fixed under Regulation 6(2) by deducting pension payable to him from the remuneration fixed under Regulation 6(1) – Petitioner challenged the said fixation of his remuneration – The High Court allowed the writ petition by quashing the first proviso under Regulation 6(2) which restricts the remuneration payable to a Member as violative of the proviso under Clause (b) of Article 318 of the Constitution of India.
Held:
All the members of the Public Service Commission discharge the same duties collectively as a unified body and the duties and responsibilities of the members of the Public Service Commission are inter-changeable, there can, therefore, be no justification to pay them differently for the duties discharged by them. In view of the above, it is natural to conclude that the first proviso under Regulation 6(2) of the 1973 Regulations which envisages a stipulation wherein a number of the Public Service Commission fixed under Regulation 6(1) of the 1973 Regulations, is clearly ultra vires the provision of the Constitution of India, and is therefore liable to be set aside and is accordingly set aside. The petitioners and others who were drawing wages under the government at a level less than the remuneration under Regulation 6(1) of the 1973 Regulations (prior to their appointment as members of the Public Service Commission), are hereby held to be entitled to the remuneration fixed under Regulation 6(1) of the 1973 Regulations, without any deduction therefrom. Cases referred: 1. 1967 Service Law Reporter 1 – Marvyn Continho Vs. Collector of Customs, Bombay 2. 1967 Services Law Reporter 632 – Roshan Lal Tandon Vs. Union of India 3. 1972 Services Law Reporter 79 – S.M. Pandit & Anr. Vs. State of Gujarat & Ors. 4. 1974(1) Services Law Reporter 470 – Ramachandra Shanker Doodhar & Ors. Vs. State of Maharashtra & Ors. 5. 1982 (1) SCC 618 – Randhir Singh Vs. Union of India
210
ORDER
While effecting appointments of member of a Public Service Commission, it is
imperative to ensure that as nearly as may be half of the members of the Public Service
Commission are such, who at the time of their appointment, have rendered government
service for a period of at least ten years. The aforesaid mandate is contained in the
proviso under Article 316(1) of the Constitution of India. It is, therefore, apparent that
Article 316 of the Constitution of India classifies members of the Public Service
Commission under two broad heads, one being those members of the Public Service
Commission who have rendered government service for a period of ten years to their
appointment; and that other are those members who have not rendered the contemplated
length of service under the government at the time of their appointment.
Every State Government has the power to make regulations for determining the
conditions of service of the members of the Public Service Commission. The aforesaid
power flows to the State Government under Article 318 of the Constitution of India.
Article 218 of the Constitution of India is being extracted hereunder:-
“318. Power to make regulations as to conditions of service of members and staff of the Commission:- In the case of the Union Commission or a Joint Commission, the President and, in the case of a State Commission, the Governor of the State may be regulations:-
a. Determine the number of members of the Commission and their conditions of service; and
b. Make provision with respect to the number of members of the staff of the
Commission and their conditions of service; Provided that the conditions of service of a member of a Public Service Commission shall not be varied to his disadvantage after his appointment”
In exercise of powers vested under Article 318 of the Constitution of India, the Haryana
Government framed the Haryana Public Service Commission (Conditions of Service)
Regulations, 1973 (hereinafter referred to as the 1973 Regulations). Regulation 6 of the
211
1973 regulations is relevant for the present controversy and is, therefore, being extracted
hereunder:-
“6. Pay (1) The Chairman shall receive a remuneration of seven thousand rupees in a
month and each of the other members a remuneration of six thousand rupees a month. They shall also be entitled to such other allowance as may be admissible in future from time to time, to government employees drawing the same pay in addition to four hundred rupees a month as car allowance, provided a car is maintained.
(2) Chairman or the Member, if at the time of his appointment as such, is a
retired Government employees, he will be entitled to the remuneration in sub-regulation (1) in addition to the pension sanctioned to him.
Provided that the amount of remuneration plus the gross amount of pension or the pension equivalent to other forms of retirement benefits does not exceed the pay last drawn by him before his retirement or the remuneration mentioned in sub-regulation (1) whichever is higher. Provided further that the total remuneration plus the gross of pension and the pension equivalent to other forms of retirement benefits, excluding the allowances, shall in no case exceed eight thousand rupees per month.
3. The Chairman or the member who at the time of his appointment as such, is in the
service of the Central or State Government and does not exercise option under sub-
regulation (1) of regulation 9 shall be paid the remuneration drawing by him immediately
before his appointment as Chairman or Member as the case may be or the remuneration
mentioned in sub regulation (1) whichever is higher, till the date of his retirement from
Government service in the normal course and thereafter his remuneration shall be
regulated as provided in sub regulation (2).
4. A member who in the absence of the Chairman on leave or otherwise is asked to
perform the additional duties of the Chairman, shall be entitled to an additional
remuneration at the rates of two thousand rupees a month;
Provided that such additional duties are performed for a period of not less than fourteen
days.
212
The petitioner in the instant case has inter alia impugned the constitutional
validity of the first proviso under Regulation 6(2) of the said regulations. The petitioner
has impugned the order dated 22.4.1995, whereby the State Government, while fixing the
remuneration payable to the petitioner, ordered deduction of pension payable to him (on
account of the service rendered by him under the Government as well as deductions of
pension equivalent to Death-cum-Retirement gratuity paid to him for service rendered by
him under the government) from the remuneration fixed under Regulations 6(1) of the
1973 Regulations while determining the remuneration payable to him”.
In order to determine the validity of the impugned order dated 22.5.1995, it is
necessary first to notice certain factual details connected with the claim of the petitioner.
In this behalf, it would be pertinent to mention that the petitioner was appointed as a
Member of the Haryana Public Service Commission on 6.7.1994. Prior to his aforesaid
appointment, he was holding the post of Deputy Commissioner, Panipat. Consequent
upon his aforesaid appointment as a member of the Haryana Public Service Commission,
he was deemed to have retired from the Indian Administrative Service for which he was a
member before his appointment as a member of the Haryana Public Service Commission
with effect from the forenoon of 6.7.1994. It is also pertinent to mention that the
petitioner had rendered more than ten years service under the government prior to his
appointment as member of the Haryana Public Service Commission.
The petitioner’s emoluments had to be fixed in terms of Regulation 6 of the 1973
Regulations (extracted above). Regulations 6(1) of the 1973 Regulations mandate that a
member of the Public Service Commission shall be entitled to a monthly remuneration of
Rs.6000/-. In addition thereto he would also be entitled to allowances as may be
admissible from time to time to Government employees, besides a sum of Rs.450/- per
month as Car allowance (if he maintains a car). It is clearly expressed under Clause (2)
of Regulation 6 of the 1973 Regulations that the aforesaid remuneration of Rs.6000/- per
month etc. would be in addition to the pension payable to him on account of his earlier
appointment under the government i.e. pension to which he had become entitled to prior
to his appointment as a member of the Public Service Commission.
213
The main controversy in the instant case, however, revolves around the
interpretation of the first proviso under Regulation 6(2) of the 1973 Regulations. The
first proviso under Regulations 6(2) of the 1973 Regulations envisages two categories.
The first category comprises of members of the Public Service Commission, who prior to
their appointment were drawing wages in excess of the remuneration stipulated under
Regulations 6(1) of the 1973 Regulations. The second category is referable to member of
the Public Service Commission, who prior to their appointment as members of the Public
Service Commission (i.e. while in Government service), were drawing wages at a level
lower than the remuneration prescribed for a member of the Public Service Commission
under Regulation 6(1) of the 1973 Regulations.
For the first category (noticed in the foregoing paragraph), the first proviso
requires that a member who was drawing a higher wage prior to his appointment as a
member of the Public Service Commission than the one stipulated under Regulation (1)
of the 1973 Regulations, shall not be entitled to carry home emoluments in excess of the
wage that was being drawn by him while in government service. In other words, the
condition of his earlier employment prior to his appointment as a member of the Public
Service Commission (relatable to wages) is sought to be protected with the condition, that
the remuneration payable to him under Regulation 6(1) of the 1973 Regulations when
added to the retiral benefits payable to him in lieu of the government service rendered by
him would not exceed the last wage drawn by him while in government service. This
stipulation under the first proviso to Regulation 6(2) of the 1973 Regulations, is allegedly
referable to the proviso under Article 316 of the Constitution of India, which envisaged
that the conditions of service of the members of the Public Service Commission cannot
be varied to the disadvantage of those, who were earlier in government service. The
controversy in hand is primarily aimed at determining whether the first proviso is aimed
at protecting and preserving the wage drawn by a member under the Government prior to
his appointment as a member of the Public Service Commission, in terms of the mandate
of Article 318 of the Constitution of India.
For the second category (noticed in the paragraph preceding the foregoing
paragraph), the first proviso to Regulation 6(2) of the 1973 Regulations requires, that if a
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member of the Public Service Commission was drawing a wage as a government
employee, at a level lower than the remuneration envisaged under Regulation 6(1) of the
1973 Regulations, he shall, consequent upon his appointment as a member of the Public
Service Commission, draw the remuneration determined under Regulation 6(1) of the
1973 Regulations. The aforesaid stipulation contained in the first proviso under
Regulation 6(2) of the 1973 Regulations, does not violate the mandate of the proviso
under Article 318 of the Constitution of India since such a member would obviously draw
emoluments at a level higher than the wages drawn by him under the government.
In so far as validity of the first proviso under Regulation 6(2) of the 1973
Regulations, the contention of the learned Counsel for the petitioner is that the earlier
employment rendered by a person similarly situated as the petitioner, does not have any
nexus with the duties and responsibilities he is required to discharge as a
Chairman/member of the Public Service Commission. It is, therefore submitted that he is
entitled to be paid for the duties as discharge, by disregarding the emoluments payable to
him on account of the service rendered by him under the Government, just like the other
members of the Public Service Commission. Inviting the attention of the court to Article
14 and 16 of the Constitution of India, and Article 39(a) and (d) thereof, it is submitted
that the remuneration as a member of the Public Service Commission, the only aspect
which must be kept in mind is the duties and responsibilities which the member is
required to discharge. It is contained that any thing other than the aforesaid consideration
would be extraneous to the issue. Additionally it is submitted that there can be no
discrimination in so far as emoluments payable to members of the Public Service
Commission are concerned, by classifying members of the Public Service Commission
into two categories (as indicated in the opening paragraph of the instant judgment). Any
discrimination on the basis of the aforesaid classification, according to learned counsel
would violate the principle of equal pay for equal work. In this behalf it is pointed out
that the rule of equal pay for equal work came to be recognised by the Supreme Court in
Randhir Singh Versus Union of India 1982 (1) SCC 618, wherein the Apex Court
concluded that the same flows from Articles 14, 16 and 39(a) and (d) of the Constitution
of India.
215
So as to canvass the claim of the petitioner for remuneration payable to the
members belonging to the category envisaged by the proviso under Article 316(1) of the
Constitution of India, namely those who have been employed under the Government for
at least ten years, learned counsel for the petitioner has invited this Court’s attention to
the decisions rendered by the Apex Court in Marvyn Continho Versus Collector of
Customs, Bombay 1967 Services Law Reporter 1, Roshan Lal Tandon Versus Union of
India 1967 Service Law Reporter 632, S.M.Pandit and another versus State of Gujarat
and others 1972 Services Law Reporter 79 and in Ramchandra Shanker Doodhar and
others Versus State of Maharashtra and others 1974 (1) Services Law Reporter 470. In
all the aforesaid judgments, the Apex Court evaluated the rights of the concerned
officers/officials for onward promotion. The cadre posts (in the cases referred to above)
from which further promotions were sought, were manned by appointments made by way
of direct recruitment and also by way of promotion from the feeder cadres. For further
promotion the rules permitted promotion only to direct recruits. In other words the feeder
cadre was classified into two categories, one comprising of promotees and the other
comprising of direct recruits, direct recruits alone to the exclusion of promotees were
eligible for further promotion. In the absence of any distinction (between the promotee
members of the cadre and the direct recruits in the same cadre) based on the duties which
the two categories were required to discharge; the classification based on their origin
which disentitled promotees from further promotion, was held to be violative of Article
14 and 16 of the Constitution of Indian in the cases referred to above. Based on the
aforesaid conclusion, it is the contention of the learned counsel for the petitioner, that
irrespective of their origin or the broad category to which they belong (as indicate in the
opening paragraph of this judgment), no member of the Public Service Commission can
be paid less than the remuneration stipulated under Regulation 6(1) of the 1973
Regulations. In this behalf, it is pointed out that all the members of the Haryana Public
Service Commission discharge the same functions. Additionally it is pointed out that the
Public Service Commission functions as a collective body and the duties assigned to the
members of the Commission are also interchangeable irrespective of the source of their
appointment. In the absence of any material placed on the record of this case, depicting
216
any justifiable distinction between the two categories, the statutory regulation which
envisages lower emoluments for one category of members, in comparison to higher
emoluments payable to other members, would be violative of Article 14 and 16 of the
Constitution of India read with Article 39(a) and (d) thereof.
Through the instant order, it is proposed to dispose of seven writ petitions,
including Civil Writ Petition Nos.4029 of 1987, 11835 of 1989, 1355 of 1991, 2898 of
1992, 13298 of 1995 and 5353 of 2000. In all the writ petitions, the challenge is as
against the constitutional validity of the first proviso under Regulation 6(2) of the 1973
Regulations. The validity of the first proviso shall have to be evaluated separately for the
two categories involved namely the first category comprising of members of the Public
Service Commission, who prior to their appointment were drawing wages in excess of the
remuneration fixed under Regulation 6(1) of the 1973 Regulations; and the second
category comprising of members who prior to their appointment fixed drawing wages at a
level lower than the remuneration fixed under Regulations 6(1) of the 1973 Regulations.
The petitioner in the instant case was drawing a wage under the government
which has less than the remuneration stipulated under Regulations 6(1) of the 1973
Regulations. It is not a matter of dispute that the duties and responsibilities discharged by
the members of the Commission ir-respect of their source of appointment are the same. It
is also not a matter of dispute that duties assigned to the members of the Commission
recruited from the two broad sources expressed in Article 316(1) of the Constitution of
India are inter changeable. It is, therefore, inevitable to conclude that the members of the
Public Service Commission cannot justifiably classified on the basis of the duties and
responsibilities assigned to them. The Apex Court in Marvyn Continho’s case (supra),
Roshan Lal Tandon’s case (supra), S.M.Pandit’s case (supra) and in Ramchandra Shankar
Doodhar’s case (supra) has repeatedly concluded that the source of recruitment of an
incumbent cannot be basis of a valid classification. The written statement filed on behalf
of the respondents does not disclose any justification on the basis of which different
members of the Public Service Commission can be paid different levels of remuneration.
Thus viewed, it is imperative to conclude that the impugned order which required the
petitioner in the instant case Ram Phal Singh to be paid remuneration laws then the one
217
stipulated under Regulation 6(1) of the 1973 Regulations, violates the principle of equal
pay and equal work. In this behalf it would be pertinent to mention that while calculating
the emoluments payable to the petitioner, deduction of pension payable to him (on
account of service rendered by him under the government) as well as deduction of
pension equivalent to Death-cum-Retirement Gratuity paid to him (for service rendered
by him under the Government) are being made from the stipulated remuneration of
Rs.6000/- under Regulation 6(1) of the 1973 Regulations. The aforesaid deductions
comprising of pension, as well as pension equivalent to Death-cum-Retirement Gratuity,
constitute earnings of the petitioner in lieu of the service rendered by him under the
government. The action of making the instant deductions amounts to depriving the
petitioner of his existing rights, prior to his appointment as a member of the Public
Service Commission. The aforesaid earnings are not relatable to the duties and
responsibilities which a member of the Public Service Commission discharge as a
member of the Public Service Commission. It is wholly unreasonable to make the
aforesaid deductions from the remuneration of the petitioner because the aforesaid
payments have no nexus to the duties and responsibilities of the petitioner as a member of
the Public Service Commission. The only issue relevant for determining the emoluments
payable to the members of the Public Service Commission is the duties and
responsibilities discharged by them as members of the Public Service Commission. All
the members of the Public Service Commission discharge the same duties collectively as
a unified body and the duties and responsibilities of the members of the Public Service
Commission are inter-changeable, there can, therefore, be no justification to pay them
differently for the duties discharged by them. In view of the above, it is natural to
conclude that the first proviso under Regulation 6(2) of the 1973 Regulations which
envisages a stipulation wherein a number of the Public Service Commission fixed under
Regulation 6(1) of the 1973 Regulations, is clearly ultra vires the provision of the
Constitution of India, and is therefore liable to be set aside and is accordingly set aside.
The petitioners and others who were drawing wages under the government at a level less
than the remuneration under Regulation 6(1) of the 1973 Regulations (prior to their
appointment as members of the Public Service Commission), are hereby held to be
218
entitled to the remuneration fixed under Regulation 6(1) of the 1973 Regulations, without
any deduction therefrom.
In so far as the first category namely members of the Public Service Commission
who were earlier employees under the Government and were drawing wages in excess of
the remuneration under Regulation 6(1) of the 1973 Regulations, is concerned, they are
entitled to the constitutional protection envisaged by the proviso under Clause (b) of
Article 218 of the Constitution of India. There is an obvious justification for the
aforesaid, namely had such members of the Punjab Public Service Commission continued
to discharge duties under the government they would have continued to draw wages in
excess of the remuneration stipulated under Regulation 6(1) of the 1973 Regulations. So
as to ensure that the best available talent would readily accept membership of the Public
Service Commission, it was imperative to ensure that they would not suffer any monetary
loss by accepting the instant assignment. The proviso under Clause (b) of Article 318 of
the Constitution of India, therefore, provides that the conditions of services of the
members of the Public Service Commission, who were earlier employees under the
Government, would not be varied to their disadvantage after their appointment. The first
proviso under Regulation 6(2) of the 1973 Regulations, also stipulates that a member of
the Public Service Commission who was drawing a remuneration under the government
in excess of the one fixed under Regulation 6(1) of the 1973 Regulations would not be
entitled to draw a remuneration in excess of the last pay drawn by him under the
Government. The emoluments which would have been drawn by such members, had
they continued to serve under the government will have to be paid to such members. The
remuneration payable to such member will, therefore, be ascertained from the wages that
would be payable to such member as if he had continued by a fiction of law, to serve
under the Government. To pay such members of the Public Service Commission, the last
wage drawn by them before their appointment as member of the Public Service
Commission, would violate the constitutional protection granted to them by the proviso
under Clause (b) of Article 318 of the Constitution of India. Accordingly, it is obvious
that the first proviso under Regulation 6(2) of the 1973 Regulations, which restricts the
remuneration payable to a member of the Public Service Commission (who was drawing
219
wages under the Government at a level higher than the remuneration fixed under
Regulation 6(1) of 1973 Regulations, the last pay drawn by him under the government at
the time of his appointment as a member of the Public Service Commission, is violative
of the proviso under Clause (b) of Article 318 of the Constitution of India. In view of the
above, the first proviso under Regulation 6(2) of 1973 Regulations, whereby the
emoluments payable to an erstwhile employee under the government who were drawing a
wage in excess of the remuneration fixed under Regulation 6(1) of 1973 Regulations is
restricted to the last wage drawn by him under the Government is liable to be set aside
and is accordingly set aside. The remuneration payable to such member shall have to be
the same as the wage he would have drawn had he continued to serve under the
government.
It would be pertinent to mention that the petitioners had also claimed higher
pension than the one being granted to them under the 1973 Regulations. In so far as the
instant issue is concerned, the same has been determined by this Court in Shri Chander
Bhan Versus State of Haryana (Civil Writ Petition No.1386 of 1992, decided on
28.7.1997). In view of the aforesaid decision, the claim of the petitioners relating to
pension, according to learned counsel representing them stands adjudicated to their
satisfaction in Chander Bhan’s case (supra). Accordingly nothing further needs to be
stated on the claim of the petitioners relating to pension.
The instant writ petition as all the connected writ petitions detailed above are
hereby allowed. The respondents are directed to re-determine the remuneration payable
to the petitioners based on the conclusion drawn hereinabove within three months from
today and actually disburse the arrears payable to them within a further period of one
month.
***
[Note: S.L.P. (Civil) No.12336/2005 preferred by the State of Punjab & Others against the above judgment was dismissed by the Hon’ble Supreme Court on 13.7.2005 at the time of admission itself.]
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HIMACHAL PRADESH PUBLIC SERVICE COMMISSION
221
IN THE HIMACHAL PRADESH ADMINISTRATIVE TRIBUNAL, SHIMLA O.A.NO.248/2004 D.D. 22.06.2004
THE HON’BLE MR. NARINDER THAKUR, VICE CHAIRMAN
AND THE HON’BLE MR. S.S.NEGI, MEMBER (A)
Shri Kuldeep Singh Katoch ... Applicant Vs. H.P. Public Service Commission ... Respondent Qualification: The applicant was a candidate for recruitment to 4 posts of Assistant Public Relation Officer – The application of the applicant was rejected as he had not enclosed the proof of essential qualification i.e. 3 years experience in Journalism as on the last date of receipt of application along with his application – The applicant produced Diploma Certificate and Experience Certificate on 23.1.2003 after the last date for receipt of applications i.e., 30.12.2002 – The Tribunal dismissed the application. Held: The Commission will be within its right in rejecting the applications if the applications are not in strict compliance with the conditions and stipulation contained in the advertisement/notification. Cases referred: 1. AIR 1970 SC 1099 – State of Rajasthan & Anr. V. Fateh Cand & Anr. 2. AIR 1997 SC 1693 – Mrs. Seema Kumari Sharma v. State of H.P. 3. 1999 Vol-I SLC. 246 – Gunjan Kapoor v. State of H.P. 4. 2000 (5) SCC 262 – Bhupinder Singh v. State of Punjab
JUDGMENT
The present Original Application has been filed by the applicant against the action
of respondent H.P. Public Service Commission in not issuing the interview letter/roll
number for appearing in the screening test for the post of Assistant Public Relation
Officer in the department of Information and Public Relation.
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2. In the reply the respondent Commission that the respondent advertised 4 posts of
General category of Assistant Public Relation Officer in the department of information
and Public Relation on 30.12.2002 in the leading News Paper. The last date of receipt of
application fixed by the Commission was 30.12.2002 (13.1.2003 for hard area). In
response to this advertisement in all 94 applications were received by the last date out of
which 35 candidates were admitted provisionally and 59 candidates were rejected for
want of different reasons. The candidature of the applicant was also rejected as the
applicant had not enclosed the proof of essential qualification i.e. three years experience
in Journalism with his application on the last date of receipt of application. Therefore,
the application of the applicant for the post of APRO was rightly rejected by the
respondents on this ground only. The applicant was on the direction of this Tribunal was
admitted for screening test held on 30.1.2004 provisionally. It is admitted position that
the last date of receipt of application was December 30.2002. It was clearly mentioned in
the advertisement (Annexure-A/1) that attested copies of testimonials/documents in
support of age, date of birth, category to which he/she belongs as applicable. Educational
qualifications and experience must be enclosed with the application. Incomplete
applications will be rejected straight way. Separate application will have to be sent for
each category of post(s). In service candidate may apply to the Commission with
requisite fee and documents as advanced copy, with information to his/her Head of the
Department Office for issuing NOC. The decision of the Commission as to the eligibility
or otherwise of a candidate for admission to interview or selection will be final and no
correspondence/personal inquiries will be entertained. The Commission will not be
responsible for any delay in receipt of application, due to any reason whatsoever.
3. In spite of the clear-cut instructions mentioned, the applicant has not cared to
submit his complete application Form. It is, therefore, obvious that the application of the
applicant suffered deficiencies and irregularities and accordingly it was rejected. It is
further submitted by the respondents that without document it was not possible for the
Commission to judge the eligibility of the candidates for the post. It is mentioned in the
reply by the Commission that the applicant represented on 23.1.2004 to admit him for the
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post but respondent commission rejected representation vide Annexure-R/1 dated
27.1.2004.
4. We have heard the learned counsel for the applicant and the learned counsel for
respondent Commission Shri. D.K. Khanna. Original record was produced by the
respondent Commission on 3.6.2004 and as per the application From of the applicant he
has attached Bank Draft, Matric Certificate, B. Sc detail marks certificate and MMC
photocopy which has been perused by us today and as per the record no experience
certificate has been attached by the applicant with the application Form as per the record.
It is submitted by the learned counsel for the applicant that he has given Diploma
Certificate and Experience on January 23.2003 but the cut off date of this document was
December 30.2002.
5. In the advertisement a clear distinction has been made between the essential
qualification (EQ) desired qualifications (DQ) and other requisite qualifications. It was
specifically mentioned in the advertisement that the applicants must possess essential
qualification and requisite qualifications on the last date of applications. It was further
very specifically mentioned that the applicants must furnish the proof in support of
requisite qualification by the last date of receipt of application i.e. 24.11.1999.
6. Therefore, the controversy hinges around the interpretation of word
“QUALIFICATION” and whether the term qualification means only the educational
qualification or the other eligibility condition like age. This question has been answered
by Hon’ble Supreme Court in case titled as State of Rajasthan and another vs. Fatesh
Chand and another reported in AIR 1970 SC 1099. In Para 5 of the judgment it has been
specifically held that the qualification include other qualifications like Nationality and
age and other qualifications as prescribed under the Rules. It has been further held that
the High Court was wrong in construing the word qualification to mean only the
Educational Qualification.
224
7. It is pertinent to mention here that in the aforesaid judgment a reference has been
to some departmental rule that prescribed the requisite qualifications for the post.
8. In the present case also the maximum age that has been prescribed in the
advertisement is 45 years as on 1.1.1999. Here it would worthwhile to mention that the
maximum age is prescribed by the Public Service Commission on the basis of
Recruitment and Promotion Rules for the post in question prescribed by the concerned
department.
9. Further, the judgement of Apex Court in Seema Kumari’s case is not applicable to
the facts and circumstances the present case because the issue regarding complying with
the terms of the advertisement issued by the Public Service Commission was not
involved in that case.
10. In the similar case in O.A. No. 1362/2000 Dr. Vishwa Jyoti vs. H.P.P.S.C where
the applicant applied for the post of Medical Officer in the department of Health and
Family Welfare and had not attached compulsory rotary internship certificate, the original
application was rejected vide order dated April 8.2003 by this Tribunal.
11. The Hon’ble High Court of H.P. in CWP No.453/2003 titled as Ashmi Ram vs.
H.P.P.S.C decided on 24.6.2003 considered the judgment of this Tribunal dated May
2.2003 and it was held that the petitioner was justifiably, considered in General Category
as he did not file Schedule Caste Certificate.
12. In CWP 507/2002 Dr. Anita Padam vs. State of H.P decided on 25.3.2003 it was
held that as the petitioner did not possess the three years requisite teaching experience
before the last date of the submission of the application, therefore, her application was
rightly rejected by the Public Service Commission.
13. In case of Rahul Dube vs. H.P.P.S.C.(OA.No.517/2001) the OBC certificate was
submitted by the applicant after the cut off date, the Tribunal dismissed the Original
225
Application observing that all the documents are to be submitted before the cut off date.
The Writ Petition No. 779/2001 against the order of this Tribunal was also dismissed by
our own High Court of H.P. In case of Dr. M.B. Nair vs. Union of India reported in 1993
(2) SCC.429 the Apex Court observed that It is well settled that the suitability and
eligibility have to be considered with reference to the last date of receiving the
application unless of course, the notification calling for application itself specify such
date.
14. In case of Bhupinder Singh vs. State of Punjab reported in 2000 (5) SCC 262 the
Hon’ble Supreme Court observed:-
1. If cut off date is laid down in the relevant rule it has to-be followed otherwise it may be prescribed in the advertisement.
2. If no such date is prescribed eligibility has to be determined on the last date of receipt of application.
15. In case of Gunjan Kapoor vs. State of H.P. reported in 1999 vol-I SLC. 246 it was
held by the Hon’ble High Court that the certificates can not be accepted after expiry of
last date.
16. In case OA No.1089/2002 Raj Kumar vs. H.P.Public Service Commission when
the application of the applicant for the post of Himachal Pradesh Administrative Service
was rejected by the H.P.P.S.C on the ground that the applicant has not signed the
application Form. The OA was rejected in view of the terms and condition mentioned in
the advertisement. The facts and circumstances of the case of Mrs. Seema Kumari
Sharma vs. State of H.P. reported in AIR 1997 SC 1693 are different, as there is no
mention of last date of receipt of application.
17. It is argued by the learned counsel for respondent commission that the public
Service Commission is bound by the conditions and stipulations contained in the
notification/advertisement inviting application. It will not be within the province of this
Court to issue direction to the Commission whittle down the rigour of the condition and
stipulation. The Commission will be within its right in rejecting the applications if the
applications are not in strict compliance with the conditions and stipulation contained in
226
the advertisement/notification. It is further argued by the learned counsel for the
Commission that the Commission deals with large number of applications. Its staff has
to sort-out the applications submitted in proper form, process them and to take up follow
up actions. No discretion is given to the Commission or freedom to the staff to relax the
conditions in the Notification/Advertisement. Laxity in one case will leave open the
floodgate of request to contain irregularities or omissions. Such cases cannot be decided
on sympathies or by extending instructions. The Commission with its heavy workload
has to adhere strictly to its norms and its work can be streamlined only by strict
adherence to the norms settled by it. A case here or a case there may invoke sympathy or
may deserve sympathy as in this case. But, it is not within the province of this Court to
extend any sympathy in such cases. The Public Service Commission is a high
Constitutional Authority. This Forum will normally loathe in interfering with the
decision, unless strong grounds are made out like malafides.
18. In the instant case, there is no allegation of malafide against the respondent.
Taking into consideration all these facts and circumstances of this case. We are of the
considered view that the action of respondent Commission in rejecting the application of
the applicant cannot be said to be illegal.
In view of the above discussion and the law laid down by the Hon’ble Apex Court
and Hon’ble High Court of Himachal Pradesh and this Tribunal also, we do not find any
merit in the Original Application and the same is dismissed with no order as to costs.
***
227
IN THE HIMACHAL PRADESH ADMINISTRATIVE TRIBUNAL, SHIMLA O.A.NOS.2545/2004, 2657/2004 AND 2609/2004
D.D. 27.10.2004
HON’BLE MS. BAKHSHISH KAUR, J (RETD) CHAIRMAN AND
HON’BLE MR. D.S.AMIST, MEMBER (A)
Hemant Kumar ... Applicant Vs. H.P. Public Service Commission & Anr. ... Respondents Qualification: The applicants were candidates for the post of Publicity Officer – Qualification prescribed as per the recruitment Rules – Post Graduate degree in Journalism with at least 2 years experience in creative working, journalism etc. – As the applicant did not have 2 years experience after acquiring the Post Graduate degree their applications were rejected – The applicants contended that the experience gained prior to obtaining educational qualification should be counted towards experience – The Tribunal rejected the said contention and dismissed the applications as the experience gained by the applicants after the essential qualification was less than 2 years. Held: When experience is required in addition to the educational qualification it only means experience gained after obtaining the essential qualification for the post. Cases referred: 1. (1998)8 Supreme Court cases 345 – U.P. Public Service Commission v.Dr.Saad
Usmani 2. (2000)1 Supreme Court Cases 128 – Anil Kumar Gupta & Ors. v. Municipal
Corporation of Delhi & Ors. 3. 2001(2) All India Service Law Journal, 179 – Indian Airlines Ltd. & Ors. etc. v.
S.Gopalakrishnan etc. 4. (2004)4 Supreme Court Cases 30 – A.K.Raghumani Singh & Ors. v. Gopal Chadra
Nath & Ors.
JUDGMENT This order disposes of three original applications (O.A. No.2545 of 2004,
O.A.No.2609 of 2004 and O.A. No.2657 of 2004) as the question of law and facts
involved therein are similar.
228
2. Before we proceed to deal with the rival contentions of the parties, it becomes
necessary to note a few introductory facts.
O.A. 2545 OF 2004: 3. The applicant did B. Sc (Medical) in 1996. Obtained qualification of Bachelor in
Journalism and Mass Communication from Himachal Pradesh University in 1997. He
had also obtained degree in M.A. (Hindi) from Himachal Pradesh University in 1999
besides obtaining degree of MBA with Specialization in Marketing from IGNOU in
2002. He possesses qualification of Master in Journalism and Mass Communication
(2003). He had worked as Sub Editor with Dainik Himalya Dev from January 1997 to
April 2000 and worked as trainee reporter with Dainik Tribune Shimla from December
2001 to June 2002 and from June 2002 to June 2003 as a reporter with Dainik Jagran. He
is working as casual Newsreader with Reporter and Announcer with Door Darshan
Shimla and All India Radio respectively.
4. He has sought the following reliefs: -
O.A.2545/2004:
“Hemant Kumar Wats Vrs. Himachal Pradesh Public Service Commission and others.” i. That the impugned condition imposed in the advertisement at
Annexure A-2 for the post of Publicity Officer to the effect that “the experience, if any will be counted after obtaining EQ for the post” may be quashed and set aside being not in consonance with the Recruitment and Promotion Rules at Annexure A-1.
ii That the rejection of candidature of applicants by respondent
No.1 vide letters dated 10.8.2004 Annexure A-3 the applicants for appointment the post in question with all consequential benefits.
iii That if during the pendency of Original application any interview
/test is conducted by respondent commission for the post in question without considering for the post in question without considering the applicants, in such event, the test/interview so conducted by the respondent commission for the post Publicity
229
Officer pursuant to Annexure A-2 may kindly be quashed and set aside and respondent No.1 may be directed to reconduct the test/interview without insisting upon the impugned condition of two years experience after essential qualification, with all consequential benefits.
iv That the respondent department may be directed to produce
records pertaining to this case before this Hon’ble Tribunal. v Any other relief deemed proper in the circumstances may also be
granted. vi Costs of the application may also be awarded.
O.A. 2657 of 2004 Bhajan Dass Kaith Vrs. Himachal Pradesh Public Service Commission and another.
5. The applicant did B.A in 1989 and postgraduate diploma in Journalism and Mass
Communication from IGNOU in 1998. In 2002 he obtained the qualification of Master
in Journalisms and Mass Communication. He has been working as Assistant Editor with
Parvat Ki-Goonj w.e.f.15.10.1994, besides writing articles for the said paper. Thus, he
has experience of creative working for all India as “Giri Raj.”
O.A. 2609 of 2004: Durga Dutt Vrs. Himachal Pradesh
Public Service Commission and others.
6. The applicant did B.A. in 1987 and Post Graduate Diploma in Journalism and
Mass Communication from IGNOU in 2001 and in 2003 obtained qualification of Master
in Journalism and Mass Communication. He is working as casual New reader cum –
Announcer with All India Radio w.e.f. Nov. 1998.
7. Further facts, in brief, for the purpose of referring to certain documents are taken
from O.A. 2545 of 2004, which are also somewhat similar in all these original
applications.
230
8. The respondent No.1 i.e., Himachal Pradesh Public Service Commission (in short
the Commission) by way of issuing advertisement Annexure A-2 dated 5.2.2002 and
invited applications for the post of publicity officer. Though essential qualification was
in consonance with Recruitment and Promotion Rules (Rules in short), but a note
appended thereon required that the experience for the post in question have to be counted
only after obtaining essential qualifications.
9. All the applicants herein had applied for the post on prescribed proformas within
the prescribed limit but their candidatures were rejected on the ground that they do not
posses requisite experience of two years after acquiring essential qualification. The
impugned orders are Annexure A-3 dated 10.8.2004.
10. The respondents No.l and 2 have filed replies to the original applications.
11. The consistent stand taken up by the respondent No.1 is that the counting of
experience acquired after obtaining essential qualification has been rightly incorporated
in the advertisement dated 5.5.2004 Annexure A-2. It is in accordance with the decision
of the Commission taken as far back as in January 1988 and also the latest clarification
renewed from the Government in similar provision of the Rules for the post of Publicity
Officer in the department of Information and Public Relations. The applicants were not
eligible as their experience, after acquiring post graduate degree in Journalism from a
recognized University/Institution was less than two years.
12. The respondent No.2 has averred that to fill up the post of Publicity Officer there
is a provision of essential qualification of post Graduate degree in Journalism from a
recognized University/Institution or its equivalent with at least two years experience in
creative working, editorial work and Journalism. This educational qualification is
necessary.
231
13. We have heard Shri.Dilip Sharma learned counsel for the applicants. Sh. D. K
.Khan learned counsel for the Commission and Sh. Chirag Bhanu Singh learned Deputy
Advocate General for the respondent No.2.
14. In all these original applications commission common question of law arises for
consideration, namely whether the requirement of two years experience after obtaining
essential qualification as incorporated in the advertisement Annexure A-2 is in
consonance with the Rules or not.
15. Mr. Dilip Sharma learned counsel for the applicant contended that the rules
Annexure A-1 provide that experience in question of two years should be possessed with
the essential qualification. They nowhere prescribe that the experience should be after
obtaining essential qualification. The word “with” cannot be read to mean “subsequent”.
The language of the Rules is clear and unambiguous which provides that the candidate
should possess postgraduate degree in Journalism from recognized University with at
least two years experience. Meaning thereby that if a candidate has essential
qualification and also two years experience then fulfils the condition of eligibility to be
considered for the post in question. Thus, the impugned letter dated August 10, 2004 and
Annexure A-4 vide which the candidature of the applicant had been rejected is illegal,
ultra-vires and is liable to be quashed.
16. Mr. Dilip Sharma, learned counsel for the applicant to support his argument has
place reliance on “A.K. Raghumani Singh and others Vrs. Gopal Chandra Nath and
others, (2000) 4 Supreme Court Cases 30”, Under Para 7 and 8 at page 32 it has been
observed as under: -
“7. The word “with” has been defined in the New Shorter Oxford Dictionary (1993), diversely the meaning depending on the context in which it is used. But, when it is used to connect two nouns it means: “Accompanied by; having as an addition or accompaniment. Frequently used to connect two nouns, in the sense ‘and’ – ‘as well’”
8. Applying the definition to the eligibility criteria it is clear that it requires the prescribed educational qualification and 6 years’ experience as well. Given the plain meaning of the phrase, the Court
232
would not be justified in reading a qualification into the conjunctive word and imply the word “subsequent” after the work “with”.
17. It was a case where the appellant/respondent No.1 in Public Health Engineering
department of Government of Manipur had degree in Engineering. They joined service.
Respondent No.1 obtained diploma in 1989 having duly qualified in both sections of the
associate membership examination of the institution of Engineering (AMIE) diploma is
recognized by the Central Government as being on par with Bachelor degree of
Engineering for the purpose of recruitment to superior course under the Central
Government. Thus, the question arose whether respondent No.1 was eligible to be
considered for promotion to the post of Superintending Engineer in 1991. The answer to
the aforesaid line of arguments advanced by Sh. Dilip Sharma, learned counsel for the
applicant can be found from specific averments and the stands taken up by the respondent
commission in its reply. It shows that the commission had already considered matter of
experience as far back in January 1998 and it was decided as per Annexure R-1/1 that as
the matter of general policy specified in the Recruitment and Promotion Rules of a
particular post, experience gained prior to the attaining of essential educational
qualification prescribed for the post shall not be counted towards experience qualification
which may be required for such post.
18. Similar view was conveyed by the Principal Secretary (I and PR) to the Director
Information and Public Relations vide letter dated December 27, 2003 Annexure R-1/2
conveying therein that the experience gained prior to attaining qualification cannot be
counted as an experience for eligibility. It reads as under: -
“I am directed to refer to your letter No.5-87/82 Pub.6361 dated 2nd September, 2003 on the subject cited above and to say that the experience gained prior to attainment cannot be counted as an experience for eligibility. Your are, therefore, requested to inform that H. P. Public Service Commission that the three years experience gained after obtaining Diploma/Degree of Journalism, mentioned as the essential qualification in the Recruitment and Promotion Rules, be counted for eligibility.”
19. The close scrutiny of the aforesaid would, therefore, convey that word “with”
cannot be read to mean “subsequent” when the rules require the candidate should posses
233
post graduate degree in Journalism, from recognized University with at
least two years experience. Mr. D. K. Khanna, learned counsel for the respondent
contended that if work “with” cannot be referred as “subsequent” it can also not be read
as ‘prior’, the past practice, decision of the commission Annexure-R1/1 and clarification
recived from the government Annexure R1/2 provided sufficient guidelines in the matter.
20. In U.P. Public Service Commission Vrs. Dr. Saad Usmani, (1998) 8 Supreme
Court cases 345, which also related to Recruitment process and determination of
eligibility, experience. The Public Service Commission decided that the experience as
demonstrator could be accepted subject to two conditions, namely (i) a candidate should
have worked as a Demonstrator on full time basis and (ii) the experience should have
been after acquiring postgraduate qualification on the post of Clinical
Registrar/Demonstrator. It was therefore, held that the Commission was right in rejecting
the respondent candidature on the ground that the appellant and not have post graduate
qualification and, therefore, his experience as a Demonstrator could not be treated as
teaching experience.
21 Mr. Khanna learned counsel has also delied upon “Anil Kumar Gupta and
others vrs. Muncipal Corporation of Delhi and others, (2000) 1 Supreme Court
Cases 128” and “Indian Airlines Ltd. And others etc. vrs. S. Gopalakrishna etc.
Supreme Court 2001 (2) All India Services Law Journal, 179”. In Indian Airlines
Limited and other etc. (supra) it has been held that when in addition to qualification,
experience is required it only means experience after obtaining the qualification. The
observations made by the Hon’ble Judges of the Apex Court in Para 4 at page 181 are as
under: -
“When in addition to qualification, experience is prescribed, it would only mean acquiring experience after obtaining the necessary qualification and not before obtaining such qualification. In the case of respondent, he obtained the ITI certificate in the year 1994 and, therefore, did not possess five years of experience as required under the relevant rule. If his qualification as a diploma holder in Mechanical Engineering is taken note of, he has not completed three years of experience as he got the same in ‘April, 1996 and on relevant date he did not possess such qualification. Indeed in prescribing qualification and experience, it is also made clear in
234
the general information instruction at Item No.6 that “experience will be computed after the date of acquiring the necessary qualification”. Therefore, when this requirement was made very clear that he should have experience only after acquiring the qualification, the view taken by the High Court to the contrary either by the learned Single Judge on the Division Bench does not stand to reason.
22. Above being the position we are of the considered view that the candidature of the
applicants has been rightly rejected by the respondents as the experience gained after
acquiring, essential qualification for the post is to be counted for the eligibility. The
applicants were not eligible as their experience after acquiring postgraduate degree in
Journalism from recognized University was less than 2 years.
23. In view of the aforesaid, all the original applications i.e., 2545/2004, 2657/2004
and 2609/2004 are dismissed.
Copies of the judgment be placed on O.A. 2657/2004 and 2609/2004.
***
235
JHARKHAND PUBLIC SERVICE COMMISSION
236
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) NO.289 OF 2003 with W.P.(C) NO.322 OF 2003
D.D. 22.1.2003 THE HON’BLE MR. JUSTICE S.J.MUKHOPADHAYA
Md.Shamim Anjun ... Petitioner Vs. The State of Jharkhand & Others ... Respondents [W.P.(S)No.289 of 2003] Md. Tahri ... Petitioner Vs. The State of Jharkhand & Others ... Respondents [W.P.(C) No.322 of 2003]
Age relaxation: For Combined Civil Services Preliminary Examination 2003, the minimum and maximum age limits were fixed at 22 and 35 years respectively by fixing cutoff date as 1.8.2002 – One of the grounds urged was no appointment made in the previous 2 years – High Court dismissed the writ petition. Held: Power to relax age for appointment or the power to fix a maximum age for appointment or the power to fix a cut off date for appointment is vested with the Appointing Authority/The State of Jharkhand and not with the High Court.
ORDER
In both the cases as almost common questions involved they are heard together
for disposal.
The Jharkhand Public Service Commission (J.P.S.C for short) issued an
advertisement for Combined Competitive Examination in the newspaper on 2nd January
2003, calling for application to appear in the J.P.S.C Combined Civil Service Preliminary
Examination, 2003 for appointment in Jharkhand Civil Service and some other services,
the minimum and maximum age limit of 22 and 35 respectively was fixed for general
candidates.
237
The petitioner Md. Tahari of W.P(C) No. 322 of 2003 has challenged sub-clause
(iv) of clause (a) of the aforesaid advertisement No.11/2002-03 whereby the cut off date
calculating the age has been fixed as 1st August 2002.
The other petitioner Md. Shamim Anjum of W.P (S) No. 289/2003 has prayed for
direction on respondents to give relaxation of three years in the upper age limit of 35
years for general categories making it to 38 years.
One of the ground taken is that the State of Jharkhand has not made any
appointment since last two years. No such employments have been given to the
candidates who were eligible in the year 1999. The other ground, as taken by petitioner
Md. Shamim of W.P (S) No. 289 of 2003 is that the present Combined Competitive
Examination is continuity of the Combined Competitive Examination held by the Bihar
Public Service Commission (B.P.S.C for short). In earlier competitive examination
always a retrospective cut off date used to be fixed to calculate the age. For example 1st
August 1994 was the cut off date fixed in the 40th Combined Competitive Examination
held in the year 1997; 1st August 1995 was the date fixed for 41st Combined Competitive
Examination held in the year 1998 and similarly 1st August 1996; 1st August 1997 and 1st
August 1998 respectively in the subsequent examination. According to the petitioner such
cut off date should have been followed in the Jharkhand State fixing 1st August 1999 as
the date to count the age for the Combined Competitive Examination held by the
Jharkhand Public Service Commission. But such submission cannot be accepted as the
power to relax age for appointment or the power to fix a maximum age for appointment
or the power to fix a cut off date for appointment is vested with the Appointing
Authority. The State of Jharkhand and not with the High Court.
In the circumstances, there being no merit, both the writ petitions are dismissed.
***
238
IN THE HIGH COURT OF JHARKHAND Writ petition (Civil) No. 942 of 2003
With Writ Petition (Civil) No.946 of 2003
D.D. 2.5.2003 The Hon’ble Mr. Justice S.J.Mukhopadhaya
Ram Badan Singh ... Petitioner (in both the cases) Vs. The State of Jharkhand & Ors. ... Respondents (in both the cases)
Age Relaxation: Petitioner challenged the cutoff date of 1.8.2002 fixed to count the minimum age of 22 year for appointment to the post of Assistant Engineer – High Court in view of Rule 6 of the relevant Rules which fixes the cutoff date dismissed the writ petitions. Case referred: 1. AIR 1977 SC 629 – State of Punjab Vs. Balbir Singh 2. AIR 1970 SC 1742 – Rattan Lal Co. Vs. The Assessing Authority, Patiala 3. 2002(2) P.L.J.R. 80 – Singhbhum Homoeo Med. College and Hospital Vs. State of Bihar 4. 2002(2) P.L.J.R. 334 – Commissioner Vs. M/s Swarnarekha Cokes & Coal Pvt. Ltd.
ORDER
In both the cases, as petitioner is common and common question of law involved
they were heard together and are being disposed of by this common order.
2. In WPC (C) no 942 of 2003 the petitioner has challenged the cut off date of 1st
August 2002 as fixed to count the minimum age of eligibility of 22 years for appointment
to the post Assistant Engineer in Public health Engineering Department (PHED for short)
and notified vide Advertisement No.12/02-03 with further prayer to direct the
respondents to decrease the minimum age limit as mentioned in Clause IV of the
advertisement aforesaid and to accept the application of the petitioner for consideration of
his case for appointment against the post of Assistant Engineer along with others
239
In the other case WP (C) No. 946 of 2003 similar prayer has been made by the
petitioner against the minimum age of 22 years as on 1st August 2002 prescribed for
appointment in different State Civil Services vide advertisement No. 11/02-03 published
by Jharkhand Public Service Commission (JPSE for short).
3. The case of the petitioner is that he passed the matriculation examination in 1995
with 1st Division completed intermediate (Science) and thereafter took admission in B I T
Sindri in the year 1998. He completed Engineering course and provided with provisional
certificate from BIT Sindri in the year 2002 and is other wise eligible for appointment to
the post of Assistant Engineer and the State Civil Services.
The date of birth of petitioner being 9th October 1980 he attained 22 years of age
on 9th October 2002. His grievance is that in view of clause IV of Advertisement No.
12/02-03 for appointment to the post of Assistant Engineer in PHE D he has been made
ineligible and thus debarred from consideration of his case for appointment to the post of
Assistant Engineer though he is otherwise eligible on the date of advertisement.
Similar plea has been taken in respect to the Advertisement No.11/02-03
published by the JPSC in the newspaper “HINDUSTAN TIMES” ON 2ND January 2003
for appointment on different posts of Jharkhand Civil Services and Labour and
Employment Services.
4. According to the petitioners there is absolutely no legal reasoning or valid basis
for fixing the minimum age limit of 22 years on a particular day of the previous year
rather when the advertisement itself is being published in the year 2003 the J P S C
should have either fixed the minimum age requirement as 21 years as being done in all
other competitive examination or should have fixed such minimum age requirement as on
the last date of submission of application.
240
According to petitioner in most of the cases/advertisement almost all the
concerned organization have fixed the minimum age requirement of 21 years for
appointment in government services.
5. Mr. Mihir Kumar Jha, the counsel for the petitioner relied on Annexure 5 series,
the advertisements published by the Union Public Service Commission on 18th Jan 2003
Public Service Commission Uttar Pradesh in 2003 two advertisement published by the
Union Public Service Commission in 2003 Advertisement published by the Electricity
Service Commission Lucknow in 2003 Public Service Commission Uttaranchal on 19th
August 2002 etc. to suggest that all the Selection Bodies/Public Service Commission
have fixed the minimum age of 21 years.
6. Learned Advocate General Jharkhand appearing for the JPSC submitted that the
posts in Civil Services used to be filled up as per Bihar Civil Services (Executive Branch)
and Bihar Junior Civil Services (Appointment) Rules 1951. The said rule has been
adopted by the State of Jharkhand with certain amendments under section 85 of the Bihar
Reorganisation Act 2000 vide Notification No. 2/NI -005/2002 KA 6184 dated 9th
November 2002.
The minimum age has been fixed as per rule 6 of 1951 rules and the maximum
age has fixed as per the amendments made vide Notification no 6184 dated 9th November
2002.
7. So far as appointment to the post of Assistant Engineer P.H.E.D. is concerned the
learned advocate General relied on rule 4(a) of the rules regulating the method of
Recruitment to the Bihar Public Engineering Service Class II.
8 Under Rule 6 of the Bihar Civil Service (Executive Branch) and the Bihar Junior
Civil Services (Appointment) Rules 1951 as adopted by the State of Jharkhand vide
Notification No.6184 dated 9th November 2002 the minimum age for appointment in the
Civil Services has been prescribed.
241
The relevant part of the original rule 6 is quoted here under .
“6. A candidate may either be a male or female and- (a) be under 25 years and over 22 years of age on the 1st day of August last preceding the month in which the examination is held Provided that- (i) in the case of candidate belonging to the scheduled castes or the scheduled tribes the upper age limit shall be under 30 years.
The maximum age limit as was prescribed has been enhanced by the State
Government.
9. Mr. Mihir Kumar Jha the counsel for the petitioner submitted that the month in
which the examination is to be held having not yet fixed the respondents should not have
fixed the cutoff age of 22 years as on 1st August 2002. According to him if the
examination is held after August 2003 then as per rule 6(a) the candidate having
minimum age of 22 years as on 1st august 2003 will also become eligible.
However the aforesaid submission cannot be accepted in view of recent
advertisement published by JPSC on 1st April 2003 in the newspaper “HINDUSTAN”
Ranchi wherein 6th July 2003 is the date of preliminary examination has been fixed.
10. The minimum and maximum age limit of 22 years and 35 years respectively as
has been fixed for appointment in the Jharkand civil service vide Advertisement No.
11/02-03 fell for consideration before this court in the case of Md. Shammi Anjum Vs.
State of Jharkhand and others. (WP (s) No 289 of 2003 analogous with case of Md Tahri
Vs State of Jharkand and others (WP(C) No. 322 of 2003) in those cases both the
petitioners had challenged the cut off date fixed to calculate the maximum age limit and
prayed for direction on the State to relax the upper age limit. A bench of this court vide
its (unreported) decision dated 22nd January 2003 while rejected the prayer as was made
in both the writ petitions held that the power to relax the age for appointment or the
242
power to fix a maximum age for appointment or the power to fix a cut off date for
appointment is vested with appointing authority the State of Jharkhand and the high court
has no such jurisdiction. Both the writ petitions were dismissed there being no merit.
11. In view of rule 6(a) of the Rules 1951 as adopted by the State of Jharkand and the
date of preliminary examination having fixed by JPSC on 6th July 2003 I find that the
Respondents have rightly fixed the cut of date 1st of August 2002 to count the minimum
age of 22 year and it requires no interference. The prayer made in W.P.(C) No. 942 of
2003 is thus rejected.
12. For appointment to the post of Assistant Engineer in PHED the minimum age has been fixed under Rule 4 (a) of the Bihar Public Health Engineering Services
Class II Rules as quoted hereunder. “4. A candidate must (a) be of an age not below twenty three years and not exceeding twenty five years on the first day of August in the year in which applications are invited provided that if he satisfied the Commission that he requires to further practical training in Engineering he may be of an age not exceeding 26 years on that date provided govt may in special cases relax the age limit provided that in case of candidates belonging to the scheduled castes and backward tribes the upper age limit shall be under 28 years.
13. Mr. Mihir Kumar Jha the counsel for the petitioner submitted that the Bihar
Public health Engineering services Class II Rules having not adopted by the State of
Jharkhand Under Rule 85 as of the Bihar Reorganisation Act 2002 within 2 years of
reorganization of the State i.e. by 15th Nov 2002 the said rule cannot be made applicable
for appointment to the post of Assistant engineer in PHED Jharkhand.
Mr. Jha further submitted that the aforesaid Bihar public health engineering
services class II rules is not a statutory rule nor any enactment ordinance regulation order
bye law scheme notification to fall within the ambit of law as per section 2(1) of the
Bihar reorganization act 2000 therefore the question of its continuance of adoption under
sections 84 and 85 of the Bihar reorganization act 2000 does not arise.
243
14. For determination of aforesaid issue it will be appropriate to refer the relevant
provisions of the Bihar Reorganisation Act in the said act, ‘law’ has been defined under
section 2(1) of which reads as follows :
2(f) law includes any enactment ordinance resolution order bye-law rule scheme notification or other instruments having immediately before the appointed day, the force of law in whole or in any part of the existing state of Bihar.
Territorial extent of laws while provided under section 84 but the power to adopt laws
has been provided under section 85 as quoted hereunder.
“84. Territorial extent of laws the provisions of part II of this act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies. The territorial reference in any such law to the State of Bihar shall until otherwise provided by a competent legislature or other competent authority be construed as meaning the territories within the existing State of Bihar before the appointed day. 85. Power to adapt laws for the purpose of facilitating the application in relation to the State of Bihar or Jharkhand of any law made before the appointed day the appropriate. Government may before the expiration of two years from that day by order make such adaptions and modification of the law whether by way of repeal or amendment as may be necessary or expedient and thereupon every such law shall have effect subject to t he adaptations and modifications so made until altered repealed or amended by a competent legislature or other competent authority. Explanation in this section the expression appropriate govt means as respect any law relating to mater enumerated in the Union list the central govt and as respects any other law in its application to a state the state govt .
15. From section 84 it is clear that all the laws enforce immediately before the
appointed day i.e. 15th November 2000 in the erstwhile state of Bihar remain effective
continue and are applicable in both the successor states of Bihar and Jharkhand. Until
otherwise provide by a competent legislature or the competent authority irrespective of
reorganization of state.
244
16 After reorganization of the State of Punjab similar issues fell for consideration
before the Supreme court in the case of Rattan Lal Co vs. the Assessing Authority Patiala
reported in AIR 1970 SC 1742 wherein the Supreme Court held.
“...........The Scheme of the State read as Re-organization Act makes the laws applicable to the new areas until superseded amended or altered by the Appropriate Legislature in the new state. This is what the Legislature had done and there is nothing that can be said against such amendment.” Even the Administrative Orders made by the Govt of the erstwhile State continue
to be in force and effective and binding on the successor States until and unless they are
modified, changed or repudiated by the Government of the Successor States was the
finding of the Supreme court in the case of State of Punjab Vs Balbir Singh AIR 1977 SC
629 as quoted hereunder.
“...........In our judgement when there is no change of sovereignty and it is merely an adjustment of territories by the reorganization of a particular State the administrative orders made by the govt. of the erstwhile State continues to be in force and effective and binding on the successor State until and unless they are modified changed or repudiated by the govt. of the successor States. No other view is possible to be taken. The other view will merely bring about chaos in the administration of the new States. We find no principle in support of the stand that administrative orders made by the govt. of the erstwhile state automatically lapsed and were rendered ineffective on the coming into existence of the new successor States.”
17. The aforesaid provision of section 2(1) and section 84 of the Bihar Reorganisation
Act 2000 fell for consideration before a learned Single Judge of Patna High Court in the
case of Singhbhum Homeo med college and hospital Vs State of Bihar reported in 2002
(2) PLJR 80 wherein the Court held as follows:
“3. from a conjoint of the above it is clear that all laws in force immediately before the appointed day ie the day the division of State became effective continue to be applicable notwithstanding the change in the territories and a notification being law as such remains valid and binding so far as the territories comprising the new state are concerned.”
18. Similiar was the view of the Division Bench of Patna High court in the case of
Commissioner Vs M./S Swarnarekha Cokes and Coal Pvt Ltd. reported in 2002 (2) PLJR
245
334 wherein while it considered the relevant provisions of sections 84 and 85 along with
section 2(f) of the Bihar Reorganization Act 2000 held as follows :
“9. It is significant to mention that what had fallen for consideration before the Supreme Court was an administrative order not amounting to law within the meaning of section 2(g) of the Punjab Act held by the Punjab High court with which the Supreme Court agreed. It was on general principles that extended meaning was given to the administrative orders and they were held to be applicable in the successor State. The present case stands on a much higher footing inasmuch as the basis of the claim of the respondents is a statutory order/notification which amounts to law by virtue of the inclusive definition of the term ‘law’ in section 2(f) of the Bihar Act. 10. The above categorical and definite enunciation of law by the Apex Court leaves no room for doubt about applicability and binding nature by the statutory orders/ notification of the Govt of the erstwhile State of Bihar in the successor state of Jharkhand in fact there is no necessity of its being adopted as observed by the learned Judge. Under section 84 unless repudiated or otherwise modified or superseded by a legislative mandates they continue to be applicable and binding in the successor state.
19. This court in its recent (unreported) decision dated 7th April 2003 in the case of
Rajiv Kumar Vs the State of Jharkhand and others WPC No. 6341 of 2002 also held that
the laws of the combined State of Bihar continue in the successor State of Bihar and
Jharkhand under section 84 of the Bihar reorganisation Act 2000 until and otherwise
provided by a competent Legislature or competent authority of the successor
20. In view of the aforesaid finding I have no hesitation to held that the Bihar Public
Engineering Services Class II Rules whether it is a statutory rule or instruction or
executive instruction or order it is still in force and binding on both the successor State s
of Bihar and Jharkhand until and unless suitable provision is made by the competent
legislature or the competent authority of the State of Jharkhand.
21. This court has noticed the provision of rule 4(a) of the Bihar Public Health
Engineering Services Class II Rules wherein the minimum age of 23 years is prescribed
on the 1st day of Aug in the year in which applications are invited learned advocate
general while accepted that 22 years is the minimum age prescribed in the advertisement
246
no 12-02-03 as on 1st August 2002 rightly clarified that it will not affect any of the
candidate in any manner the advertisement having published in the year 2003 and as all
the eligible candidates will attain the age of 23 years as on 1st August 2003 as per the
advertisement.
22. In the aforesaid background the petitioner being not eligible as per clause 4(a) of
the Bihar Public health engineering services class II rules or the advertisement, no relief
can be granted in his favour.
23. There being no merit both the writ petitions are dismissed. However, there shall
be no order as to costs.
***
247
IN THE HIGH COURT OF JHARKHAND, RANCHI W.P (S) No. 2872 of 2003
D.D. 25.6.2003 The Hon’ble Mr. Justice S.J.Mukhopadhaya
Santo Kumar ... Petitioner Vs. State of Jharkhand & Ors. ... Respondents Appointment – Whether selection and recommendation made by Bihar P.S.C. is binding on the State of Jharkhand? – No
Petitioner who has been declared successful by Bihar P.S.C. sought for direction for issuing appointment order – The High Court in view of the decision in Smt. Chaya Singh Vs. State of Jharkhand reported in 2002 (1) J.L.J.R. 395, dismissed the writ petition. Held: In view of the decision in the above cited case, the Court held that the recommendations made by Bihar P.S.C. in the matters of appointment are not binding on the State of Jharkhand since both the States have not agreed for joint Public Service Commission and also held that mere existence of name in the panel/select list or existence of vacancies do not confer any legal right on a candidate for being appointed.
ORDER This writ petition has been preferred by petitioner for direction on the respondents
to appoint him on the vacant posts of primary teacher, who have been declared successful
by the Bihar Public Service Commission (B.P.S.C. for short).
The question whether any appointment in the State of Jharkhand on the
recommendation of B.P.S.C can be made after re-organisation of the State or not fell for
consideration before this Court in the case of Smt. Chaya Singh Vrs. State of Jharkhand
reported in 2002 (1) J.L.J.R 395. In the said case, the court while held that the
recommendation made by BPSC in the matter of appointment are not binding on the state
of Jharkhand since both the States have not agreed for joint Public Service Commission,
also held that mere existence of name in the panel/select list or existence of vacancies do
not confer any legal right on a candidate for being appointed.
248
In view of finding of the Court in the case of Chaya Singh (supra), no direction
can be given to the State of Jharkhand for appointment of petitioner as Primary Teacher
on the recommendation of B.P.S.C.
The Writ petition is dismissed.
However, this order will not stand in the way of petitioner to claim for
appointment as primary teacher in the State of Bihar.
***
249
IN THE HIGH COURT OF JHARKHAND Writ Petition (PIL) No.2769 of 2003 & connected cases
D.D. 29.9.2003 Hon’ble Mr. Chief Justice Sri. P.K.Balasubramanyan
Hon’ble Mr. Justice R.K.Merathia Jharkhand Justice Forum & Anr. ... Petitioners Vs. State of Jharkhand ... Respondents
Jharkhand P.S.C. (Conditions of Service) Regulations, 2000 – Composition of Public Service Commission:
This P.I.L. is directed against the composition and competency of Jharkhand P.S.C. to proceed with the selection process initiated by P.S.C. for recruitment to the post of Primary Teacher under Jharkhand Primary School Appointment Rules 2002 – After the formation of new State of Jharkhand the Governor Promulgated J.P.S.C. (Conditions of Service) Regulations 2000 which provided for appointment of Chairman and 4 Members – Only Chairman and a Member were appointed and they initiated recruitment process and completed the Examination – High Court held that unless and until the Chairman and 4 Members of the first Jharkhand P.S.C. are appointed further process of selection and recommendations should be kept in abeyance – However by applying de facto doctrine upheld the action taken upto the stage of conducting the examination but prevented Chairman and Member from making selection or recommendation. Held: Clause 3(i) of J.P.S.C. (Conditions of Service) Regulations 2000, provided that the Commission shall consist of a Chairman and 4 Members. The first Public Service Commission in terms of Article 315 and Regulations framed under Article 318 of the Constitution can come into being only when a Chairman and 4 Members were appointed by the Governor. Since this was the first body there has to be a full constitution of it for its coming into existence in the eye of law. Mere appointment of a Chairman and a Member is not sufficient to create a Public Service Commission of the State. Cases referred: 1. AIR 1970 Kerala 165 – P.S.Menon Vs. State of Kerala 2. AIR 1971 Assam & Nagaland 136 – Full Bench of the Assam High Court in Devajit Vs. Harendra Naik 3. AIR 1972 SC 1812 – Ishwar Chandra Vs. Satya Narayan Sinha 4. 1981 SC 1473 – Gokaraju Rangaraju Vs. State of Andhra Pradesh 5. AIR 1987 SC 454 – Ashok Kumar Yadav Vs. State of Haryana 6. AIR 1993 SC 1906 – Jay Shankar Prasad Vs. State of Bihar 7. I.L.R. 1997 Karnataka 3335 – Ishwarappa Vs. State of Karnataka 8. AIR 2003 Karnataka 269 – Ramaiah Vs. State of Karnataka
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ORDER
1. These writ petitions are a sequel to writ petitions, W.P (S) No.5170 of 2002 and
W.P (C) No.6135 of 2002 filed before this Court. The judgement in those writ petitions
is Annexure-A to the counter affidavit filed on behalf of the respondents in writ petition
W.P (C) No.2566 of 2003 (since reported in 2003 (1) JLJR 322). The State of Jharkhand
had introduced the Jharkhand Primary Schools appointment Rules, 2002 to regulate the
appointment procedure of teachers in primary schools. Rule 4 of the said Rules provided
a lower and upper age limit for appearing in the examination to be held as part of the
selection process of teachers. But a concession was given by the said Rule of the effect
that there will be no such limitation on the upper age for the first examination to be held.
This was on the basis that for a number of years, no examination had been held or
selection made and all those who had acquired Teachers’ Training should have an
opportunity to appear in the first examination. It was intended to be a one-time
concession. It meant that even a person who would attain the age of superannuation
within six months of being selected or appointed, could appear in the examination. Rule
8 thereof provided that the knowledge level for the written examination for selection
would be the Middle Level Examination. The non-fixation of an upper age limit for
candidates and fixing the knowledge at Middle level academic standard, were challenged
before this Court in those writ petitions. This court struck down the unbridled concession
given regarding the upper age limit and the fixation of Middle Level as the standard for
the written test to be conducted. The Division Bench declared void the non-prescription
of a bar in respect of the upper age limit and the fixation of Middle level examination
knowledge as the standard for the written test to be conducted on the ground that the
non-prescription of an upper age limit and the fixation of Middle level examination
knowledge for the candidates, are arbitrary, suffer from non-application of mind and not
based on any intelligible differentia and had no nexus with the object sought to be
achieved. The Division bench thus found both those provisions violative of Article 14 of
the Constitution of India, though the said Article was not specifically mentioned. The
court also declared that the said two stipulations were against public interest. The said
decision of the Division bench became final.
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2. The legislature thereupon amended Rule 4(d) and Rule 8(d). The amended Rules
provided a lower and an upper age limit and for the first examination provided for relaxation of
age by five years. By rule 8(d), it enhanced the standard of examination of Primary Teachers
Training Examination. Except in WP (C) No. 2566 of 2003, wherein various questions are
sought to be raised, in the other writ petitions, the essential prayer is for the issue of a writ of
mandamus directing the state to relax the upper age-limit indefinitely or, not to restrict the one-
time relaxation to five years as has now been done by the amendment. It appears to us that the
prayer for the issue of a writ of mandamus directing the one time relaxation indefinitely is clearly
barred by the decision of the Division Bench in the earlier writ petitions. Rule 4(d) as amended
has been introduced to meet the objections upheld by the Division Bench in the earlier writ
petitions. It is not shown how the limit of one-time age relaxation of five years is in any manner
illegal or unconstitutional. A reasonable explanation has been given by the state that there were
no appointments for five years. Therefore, it is clear that the prayer in the writ petitions for
permitting those who are beyond the age limit prescribed by Rule 4(d) to take the examination is
clearly ineligible and cannot be granted. The writ petitions raising only that contention and
containing only that prayer have only to be dismissed. Similarly, the prayer to ignore Rule 8(d)
of the Rules fixing the Standard as the Primary Teachers Examination instead of Middle
Standard, cannot also be sustained in the light of the earlier division Bench decision. The court
had held that the fixation of the standard of the written examination at Middle Standard Level
was against public interest and unconstitutional. Thus, in the light of the fact that the standard
has now been raised, at best the complaint could be that it should have been higher. Certainly, a
plea that it should be reduced cannot be entertained in the light of the prior decision. Therefore,
that prayers also ineligible.
3. The challenge on the ground that the examination level should have been higher may
have some merit considering the challenges posed by modern educational needs and standards.
But it is explained on behalf of the state that this is intended only as a test of the ability to teach
and the educational qualification has been separately fixed. Though we are inclined to think that
the educational qualification should at least be a graduation and the standards of the examination
should also be correspondingly raised, we cannot say that what is now fixed is so irrational,
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unreasonable or that it has no nexus with the object sought to be achieved. Hence, we are not
satisfied that the said rule can be struck down. But we direct the respondents to consider the need
to raise the qualification and the standard for future examinations. If the state wants its citizens to
progress, the state should ensure that quality education is imparted to children by well-qualified
teachers. The appointment of a teacher should not be considered merely as providing yet another
job opportunity even to the under qualified and the unqualified.
4. In WP (PIL) No.2769 of 2003, an important question has been raised. The state of
jarkhand came into existence on 15.11.2000 in terms of the Bihar Reorganization Act,
2000. The existing State of Bihar, a phrase coined by the Bihar Reorganisation Act, had
a Public Service Commission, as envisaged by Article 315 of the Constitution of India. It
was the Bihar State Public Service Commission. Section 77 of the reorganization Act
provided that on and from the appointed day, the Public Service Commission for the
Existing State of Bihar shall be the Public Service Commission for the state of Bihar,
meaning the reorganized State of Bihar as distinct from the State of Jharkhand. On a
clarification sought by the Government of Bihar on the status of the Public Service
Commission, vis-à-vis the State of Jharkhand, the Government of India clarified that the
Government of Jharkhand will set up its own State Public Service Commission under
Article 315 of the Constitution of India.. Thus, it became necessary for the state of
Jharkhand to bring into existence a Public Service Commission for the state. Under
Article 318 of the Constitution, the Governor of the state of Jharkhand had the power to
make regulations determining the number of the members of the Commission and their
conditions of service and to make provisions for the staff of the Commission and their
conditions of service. On 16.1.2001, the Governor promulgated the Jharkhand Public
Service Commission (Conditions of Service) Regulations, 2000. Part II of the regulation
by clause 3(i) provided that the Commission shall consist of a Chairman and four other
members. There was a proviso to the effect that in the case of absence of one or more
members on leave or otherwise, the remaining member/members, as the case may be,
shall constitute the Commission. Regulation 3(ii) gave power to the Governor to appoint
an additional member when a member proceeded on leave preparatory to demitting
office. On 19.1.2001, the state Government passed a resolution to the effect that on and
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from that day, there shall be an independent State Commission known as the Jharkhand
Public Service Commission. The resolution envisaged publication of the same in the
Gazette and it was so published. The State of Jharkhand did not straightway appoint a
Chairman and the four other members as envisaged by the Regulations. But, on
25.1.2002, the Chairman of the Public Service Commission was appointed. This was
followed by the appointment of a member of the Commission. Though the Public Service
Commission could have been constituted with only the Chairman as the member or only
with the Chairman and Member in terms of Article 316 of the Constitution of India, here,
what happened was that as against the strength determined by the Regulations framed
under Article 315 of the Constitution read with the Regulations framed under Article 318
of the Constitution of India, only the chairman and a member were appointed leaving the
three other positions unfilled. A Division Bench of this Court dealing with a public
interest litigation regarding the creation of the Jharkhand Public Service Commission, in
its order dated 13.5.2002 commented on this aspect. The delay in not appointing a
fulfledged Commission and in appointing a Chairman and one member alone was
commented upon. Even then, the State Public Service Commission has not been
constituted with the full complement of members as envisaged by the Regulations.
Pending these writ petitions, the Governor named two other members whose
appointments are to come into effect when they assume charge and even today, there has
been no appointment of the fourth member so as to bring into existence the full body as
envisaged by Regulation 3(i) of the Regulations. It is the contention of the petitioners that
a Public Service Commission for the State of Jharkhand has never come into existence as
envisaged by Article 315 of the Constitution, read with the Regulations framed under
Article 318 of the Constitution of India. Only a body consisting of a Chairman and four
members as envisaged by the Regulations could constitute the first Public Service
Commission in the eye of law and no such body having come into existence at all, the
mere appointment of a Chairman and a member could not be considered sufficient to
bring into existence the first Public Service Commission for the State.
5. The Chairman took charge on 29.01.2002 and the member took charge on
6.2.2002 and an advertisement was issued on 28.08.2002 on behalf of the Public Service
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Commission by the Chairman and the Member. But the proceedings could not be
continued pursuant to that advertisement. In view of the intervention by this Court. On
21.4.2003, a supplementary /second advertisement was issued calling for applications
based on the amended Rule 4(d) and Rule 8(d) of the Jharkhand Primary Teachers
Appointment Rules, 2002. An examination was conducted on the basis of the
applications received. It is said that about 60,000 candidates had taken the examinations
out of some 70,000 odd candidates who had applied. It is alleged in the writ petition that
there were serious irregularities in the conduct of the examinations and such
irregularities also vitiated the process of selection calling for interference by this Court.
We shall deal with that aspect later. In the present context what is to be noted is that the
examination was got conducted by the Public Service Commission, which had only a
Chairman and a member, as against a Chairman and four Members as envisaged by the
Regulations. Pending the writ petitions, it is submitted that the evaluation work is over
and the result s are yet to be announced and they have not yet been announced since a
decision by this court in these writ petitions is awaited.
6. According to counsel for the petitioners, the first Public Service
Commission in terms of Article 315 of the Constitution of India and the Regulations
farmed under Article 318 of the Constitution can come into being only on a Chairman
and four members being appointed by the Governor. Since this was the first body, there
has to be a full constitution of it for its coming into existence in the eye of law. The
mere appointment of a Chairman and a member is not sufficient to create a Public
Service Commission for the state of Jharkhand. The proviso to Regulation 3(i) relates
only to a member absenting himself on leave or other wise in a properly constituted
Public Service Commission. The proviso cannot have any application when the very
Public Service commission as envisaged by the Regulations had never come into
existence at all. It is pointed out that under the Appointment Rules, the advertisement
has to be issued by the Public Service Commission, examinations has to be conducted by
the Public Service Commission and the selection has to be made by the Public Service
Commission. In the case on hand, since the advertisement was issued only by the
Chairman and a member, and not by the Public Service Commission as contemplated by
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the Regulations, the advertisements was void and the examination conducted pursuant
thereto was also void. It is therefore the case of the petitioner that the process thus far
gone through by the Chairman and the members appointed by the Governor, have to be
nullified or declared null and void and a direction to constitute a full fledged State Public
Service Commission as envisaged by the Constitution and the regulations and keeping in
mind the proviso to Article 316(1) of the Constitution, has to be issued with a direction
to undertake the entire process of selection, afresh.
7. The learned Advocate General appearing on behalf of the State sought to
meet these contentions by a two-pronged approach. He contended that by virtue of the
proviso to Regulation 3(i) of the Regulations, even a Chairman and a Member could
perform the duties of the Commission and the fact that the other Members were not
appointed would not in any manner affect either the Constitution of the Commission or
the validity of the acts of the Chairman and the Member. Alternatively, he contended
that under Article 316 of the Constitution, the Governor could appoint a Chairman and a
member and they could perform the duties of the State Public Service Commission
which come into existence in terms of Article 315 of the Constitution. He contended that
once the appointment of a Chairman is made under Article 316 of the Constitution by the
Governor of the State, the Commission comes into existence and the Chairman can act
as the Commission. Here, the Governor had also appointed member, and the Chairman
and the member in the eye of law constitute the Commission and can act as the
Commission. The framing of the Regulations, through in terms of Article 318 of the
Constitution, and fixing of the composition of the Commission or determining the
strength of the Commission, cannot in any manner affect the strength of the
Commission, cannot in any manner affect the coming into existence of the Commission
or the validity of the acts of the Commission that has come into existence.
8. We find it difficult to appreciate why a newly born state should create
such difficulties for itself and for the people of the State. Under Article 315 of the
Constitution of India, the State had to have a State Public Service Commission, unless,
of course, it chose to have a joint public service commission or to entrust the work to the
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Union Public Service Commission as contemplated by that Article. Here, the State did
want a State Public Service Commission of its own as is clear from the resolution
notified on 19.1.2001. Even earlier, on 16.1.2001, the Governor had framed Regulations
as envisaged by Article 318 of the Constitution prescribing the composition of the
Commission and providing that it shall consist of a Chairman and four members. A
State Public Service Commission is a constitutional body and it should consist of
suitable and qualified persons of unimpeachable integrity and consistent with the proviso
to Article 316 (1) of the Constitution. Here, the State waited for almost an year after
resolving to constitute the State Commission and issuing the Regulations, to notify the
appointment of a Chairman of the Commission. Thereafter, it notified another member
still, the other three members as envisaged by the Regulations were not appointed. In
fact a Division Bench consisting of the then Chief Justice commented on this aspect in
its orders dated 13.5.2002 in W.P (PIL) No. 2727 of 2002. Even then, there was no
attempt to bring into the existence the full fledged Commission. During the pendency of
these writ petitions, two other members were notified, still leaving one position vacant or
unfilled. Thus, till date, there has been no constitution of a State Public Service
Commission with the requisite strength prescribed by the Jharkhand Public Service
Commission (Condition of Service) Regulations, 2000. One would have expected a State
that came into existence after 50 years of the Constitution, to be conscious of the need to
maintain constitutional properties and to act in terms of the Regulations it had framed for
itself. We can take judicial notice of the fact that a number of writ petitions are pending
and are being filed in this court challenging the propriety of one action or another by the
State and it is time the Government sheds its lackadaisical approach and insists on strict
compliance with the requirements of the Constitution and all laws or Regulations
promulgated or framed by it or by the Parliament. A due adherence to the requirements
as envisaged by the Regulations could have avoided many a litigation, including the
present ones.
9. But now that the State has chosen to follow the course it has chosen, we
have necessarily to decide the question that is posed for our decision. The main thrust of
the argument of the learned Advocate general was that it was open to the Governor to
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appoint a Chairman for the State Public Service Commission and a Chairman by himself
could have performed the duties of the Public Service Commission in terms of Articles
315 and 316 of the Constitution. That may be so. But under Article 318 of the
Constitution, the Governor of the State has a right to frame Regulations to determine the
number of members of the Commission. Since the State Public Service Commission was
being born, necessarily, thr requirement of the Regulations that it shall consist of a
Chairman and four others had to be fulfilled. Admittedly, this has not been done even
today. According to the Advocate General, the Regulation to the effect that the State
Public Service Commission shall consist of a Chairman and four members was only
directory and the constitutional requirement would be met by the notifying of the
Chairman and members to act as the Public Service Commission. This has to be
examined.
10. We are inclined to think that unless compelled, the Regulations made by
the Governor in terms of Article 318 of the Constitution must be read in harmony with
Articles 315 and 316 of the Constitution. May be, without framing the Regulations, the
Governor could have appointed a Chairman and a Member to act as the Commission.
But that has not happened. Here, the Regulations was framed first, fixing the strength of
the State Public Service Commission, as one Chairman and four Members. Normally,
the Court should not consider any constitutional provision or the Regulations made
under it, a dead letter. Therefore, endeavour must be made to read the constitutional
provisions in harmony with the Regulations framed and if so read, it is clear that for the
first State Public Service Commission to come into existence in this State, a Chairman
and four other members have to be appointed so as to fulfill the requirements of the
Constitution. When something is to be done in a manner provided for by a Statute, the
same should be done in that manner or not at all. No direct decision was brought to our
notice arising out of a situation like the one obtaining here. But the learned Advocate
General brought to our notice a decision of the full Bench of the Assam High Court in
Devajit Vs. Harendra Nath (AIR 1971 Assam & Nagaland 136). He drew our attention
to an earlier decision referred to and dealt with therein, A.C Sarkar Vs. State of Assam
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(Assam Law Reporter 1969, Assam & Nagaland 202). He referred to the following
passage from the decision:-
“ The Governor at a particular time may not think it fit to fill in the vacancy and yet the Commission which is existing with the Chairman and another member does not cease to be a Commission under Article 316(1) read with Article 318(a) and Regulation 4. The Commission which interviewed the petitioners was perfectly competent under the law to exercise its functions.”
11. The Advocate General pointed out that the petition for Special Leave to
appeal against that decision was dismissed by the Supreme Court, though the Supreme
Court did not deal with the question of validity of the composition of the Public Service
Commission. On an examination of the facts of that case, it is seen that A.C. Sarka was a
case where a full fledged Commission was constituted, of a Chairman and three other
members as per the Regulations, but a particular interview set up by the Commission was
conducted by the Chairman and another member and in absence of the remaining two
members, and the question involved was whether that was legal. It appears to us that the
said decision is not an authority for the proposition that even while constituting the first
State Public Service Commission, the composition as envisaged by the Regulations framed
under Article 318 of the Constitution need not to be adhered to. The further observation in
the Supreme Court Judgment to the effect, “we may also in this context notice that Article
316 (1-A) provided for the contingency when the office of the Chairman of the
Commission becomes vacant. This would go to show that there is no illegality per se of
the Commission continuing to function with one member less under certain circumstances.
Article 317(2) also makes provision for another contingency under some other specified
circumstances” also indicate that was not a case where even at the inception there was no
proper constitution of the State Public Service Commission as envisaged by the
Regulations in that behalf.
12. Article 315 of the constitution only provides that there shall be a Public
Service Commission for each State. Article 316 confers power on the Governor of the
State to appoint a Chairman and other members of the State Public Service Commission.
The proviso thereof directs that as nearly as may be, one-half of the members should be
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persons who had held office for at least 10 years under the Government of India or the
Government of a State prior to the date of their appointments. Of course in a case where
the appointment of a member was challenged before the S.C. on the ground that such
appointment would go against the proviso, the challenge was not upheld by the Supreme
Court by observing that the proviso to Article 316 of the Constitution was directory.
13. In Jay Shankar Prasad Vs. State of Bihar (AIR 1993 SC 1906), all that the
Supreme Court said was, “it cannot be said that the proviso to Article 316(1) requiring that
as nearly as may be, one-half of the members of the Public Service Commission shall be
from service category leaves no option to the appointing authority under any
circumstances what so ever to allow reduction of the representation from that category and
a breach of the said requirement by reason of appointment of a member from non-service
category vitiates such appointment or the duties performed by such appointees as a
member of the Public Service Commission.” Their Lordships took note of the expression
“as nearly as may be” in the proviso to Article 316(1) of the Constitution to come to the
above conclusion. From this it does not follow that even a truncated constitution of the
Commission at the inception, could be held to be valid on the ground that the Regulations
framed under Article 318 of the Constitution prescribing the composition of the
Commission is also not mandatory. Of course, if such a body as envisaged by the
Regulations is constituted and if it does not strictly conform to the direction in the proviso
to Article 316(1) of the Constitution, we may be able to say that the Constitution of the
Commission is not bad, even though the proviso has not been satisfied, since the
requirement of the proviso is not mandatory. The said analogy, in our view, cannot be
extended to find that the first State Public Service Commission created, itself need not
satisfy the mandate of the Regulations framed under Article 318 of the Constitution. In
our view, there would be a difference between the first constitution of the State Public
Service Commission and its subsequent re-constitution or the supplying of the omissions
as and when they occur. Once a valid body has come into existence, the fact that a member
has resigned or the fact that one or two members are absent during any particular decision
taken by the Commission, may not invalidate the proceedings. It is here that the proviso to
Regulation 3(i) of the Regulations also may have operation. What it provides for is that in
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case of absence of one or more members on leave or otherwise, the remaining
member/members, as the case may be, shall constitute the Commission. We think that the
proviso envisages a case where the body has come into existence as envisaged and
thereafter absence occurs of one or more of the members on the ground of leave or
otherwise. We may incidentally indicate that at the relevant time, even a majority of
members of the State Public Service Commission have not been appointed. The majority
obviously would at least be three out of five. Therefore, the principle recognized in
Ishwar Chandra Vs. Satya Narayan Sinha (AIR 1972 SC 1812) that a meeting of the
majority of the members of a body would be a valid meeting and the decision taken therein
would be valid, relied on by the learned Advocate General does not have much relevance
here.
14. A serious challenge was mounted on the qualifications of the Chairman, the
member and the persons to be made members of an august Commission, like the State
Public Service Commission. It was contended that the Chairman was an employee of the
All India Radio, totally unfamiliar with the work that is expected of the Chairman of a
State Public Service Commission and that the member was only a lecturer of an affiliated
college and was not even holder of an office under the State Government. It was
submitted that he was appointed merely on political considerations and appointments of
such a person would certainly not enhance the prestige of a constitutional body, like the
State Public Service Commission. Respondents 6 and 7 refute these allegations and claim
that they are qualified to be appointed and once they are appointed, they could only be
removed by the Governor in terms of Article 317 of the Constitution and even a writ of
quo warranto could not be issued by the High Court. Learned Advocate General contended
that the challenge to the competence of the persons appointed could not be entertained by
the Court. He relied on the observations in Ashok Kumar Yadav Vs. Sate of Haryana (AIR
1987 SC 454) in support. In that decision, the Supreme Court observed that the High Court
was not competent to undertake an enquiry into the question whether the Chairman and
members were men of integrity, Caliber and qualifications. Even assuming that they
lacked integrity, caliber and qualifications, their appointment would not be invalid, when
constitutional and legal requirements with regard to their appointments were fulfilled. The
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said decision is also an authority for the position that a collateral challenge to the
appointment of a Chairman and a Member could not be entertained by the High Court. But
still, we feel emboldened to say that it is the duty of those concerned with such
appointments to ensure that the men appointed to such constitutional bodies are men of
spotless reputation, unimpeachable integrity possessing good, if not outstanding, academic
qualifications and not actively involved with one political party or the other. In the light
of the decision brought to our notice by the learned Advocate General, we feel disinclined
to further pursue this aspect of the case urged by the petitioners. We may observe that the
credibility of a body depends on the members who compose it.
15. Thus, though the Court may not interfere with the composition of a State
Public Service Commission and may not invalidate its actions even if all the members
constituting it do not act together, this Court can and has to consider whether the first
State Public Service Commission as envisaged has come into existence at all. On
considering that question, we are of the view that the Jharkhand State Public Service
Commission as a body is yet to be constituted. Going by the relevant provisions of the
Constitution and the Regulations framed, the constitution of the First Commission will
be complete and effective only on the Chairman and the four members being initially
appointed. The Constitution of the very body is different from the supplying of
omissions in it. Since a proper body has not yet been constituted, we have to hold that
the State Public Service Commission has not yet come into existence as contemplated.
For it to perform its duties properly, the other members contemplated have also to be
appointed as envisaged by the Regulations.
16. What is the consequence of our finding that the first State Public Service
Commission for the State of Jharkhand has not yet come into existence in the eye of law,
is the question now to be considered. No, doubt, the Jharkhand Primary Teachers
Appointment Rules envisage that an advertisement for the selection be issued by the State
Public Service Commission, evaluation of answer sheets be got done by the State Public
Service Commission and the selection process completed by the State Public Service
Commission. The contention is that the advertisement was issued by a truncated Public
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Service Commission which was still born and the examinations were also got conducted
through such a Commission and consequently, the entire exercise must be declared illegal
and invalid. We think that the de facto doctrine approved by the Supreme Court would
ward off this challenge. In P.S Menon Vs. State of Kerala (AIR 1970 Kerala 165), a case
relating to the validity of selections made by a State Public Service Commission, whose
constitution was challenged, a full Bench of the Kerala High Court observed thus:
“This doctrine was engrafted as a matter of policy and necessity to protect the interest of the Public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers in fact, whose acts, public policy requires should be considered valid.”
17. The Supreme Court in Gokaraju Rangaraju Vs. State of Andra Pradesh (1981 SC
1473) applied the de facto doctrine to uphold the judgment of a Sessions Judge whose
appointment was subsequently declared invalid on the ground that it was in violation of
Article 233 of the constitution. Their Lordships held that the de facto doctrine is now well
established that the acts of officers de facto performed by them within the scope of their
assumed official authority, in the interest of the public or third persons and not for their
own benefit, are generally as valid and binding as if they were the acts of officers de jure.
It was further observed that a judge de facto is one who is not a mere intruder or usurper,
but one who holds office under colour of lawful authority, though his appointment is
defective and may later be found to be defective. Whatever be the defect of his title to the
office, the judgment pronounced by him and acts done by him when he was clothed with
powers and functions of the office, albeit unlawfully have the same efficacy as judgment
pronounced and acts done by a judge de jure. Such is the de facto doctrine born of
necessity and public policy to prevent needless confusion and endless mischief. A Full
Bench of the Karnataka High Court in Ramaiah Vs. State of Karnataka (AIR 2003
Karnataka 269) had occasion to consider this aspect. There, the question involved was the
validity of the establishment of the tribunal itself as distinct from the appointment of a
judge. Inspite of holding that the doctrine of de facto judge had no application to the case
since it related to the very Constitution of the body itself, the Full Bench still applied the
de facto doctrine while saving the orders passed by the said Tribunal. In fact, their
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Lordships specifically overruled an earlier decision of a Division Bench in Ishwarappa
Vs. State of Karnataka (I.L.R 1997 Karnataka 3335) wherein; the Division Bench had
applied the doctrine of de facto judge, for savings orders passed by a Tribunal, the very
establishment of which itself was questioned. The Full Bench held that the doctrine of de
facto judge had no application to the case, which related to the very constitution of the
Tribunal itself. But even then, the Full Bench considered whether a similar principle
could not be applied to save an order of a Tribunal which had not properly come into
being in the eye of law, but which had rendered certain decisions. The Court after
referring to passages from American jurisprudence, corpus juris secondum and certain
other decisions including the decision of American Supreme Court in Extein Norton Vs.
Shelby County, State of Tennesee, 118 U.S 178, held that orders and judgment delivered
by a Land Tribunal created by the Karnataka Inams Abolition Laws (Amendment) Act,
1979 which was subsequently declared unconstitutional and ultra vires, are saved from
challenge to their validity based on the facto doctrine. The Court held that while the
correctness of the orders and decisions rendered by such Tribunal could be examined on
merits in each case, the same cannot be set aside or quashed merely because they had
been delivered by a Tribunal established under an enactment which was, by a subsequent
judgment, declared to be unconstitutional. The case on hand is also one where a
constitutional body had not come into existence as envisaged by the very Regulations
framed under Article 318 of the Constitution. What has happened is that a Chairman and
a member out of a Chairman and four members envisaged, had proceeded to act, notified
the examinations and had held the examinations. Out of some 70,000 odd candidates who
had applied, about 63,000 candidates had written the examination thus conducted for
about 10,000 posts. It is submitted by the learned Advocate General that the process of
evaluation is also complete and what remains is only the recommendations to be made for
making appointments. We think that it will be public interest and the interests of all those
who had taken the examinations to uphold the steps thus far taken, by applying the de
facto doctrine. The de facto doctrine is a doctrine of convenience and is adopted in public
interest. We must notice here the fact that the examination in questions were conducted
amid tight security and threats of violence were unleashed by some unruly elements for
their own reasons. A few lost their lives in violence. Learned Advocate General has,
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therefore, a point when he urges that undo the steps taken until now not only mean waste
of substantial public funds, inconvenience to about 63,000 candidates, but also a
possibility of the examination for selection of teachers being postponed indefinitely. He
urges that the last examination was held more than five years back and there are a number
of vacancies of teachers in various schools. Article 21A of the Constitution relied on by
the counsel for the petitioners itself shows the need to have teachers to impact education
at the primary and secondary schools level. We find substance in these submissions.
These practical considerations incline us to the view that we would be justified in
applying the de facto doctrine to the case on hand. After all, what have been performed
by now are the issuing of the advertisement, holding of the examination and getting the
papers valued by qualified persons. We therefore take the view that what has been done
thus far cannot be and not be nullified only on the ground that the State Public Service
Commission was not fully constituted and the Chairman and a member who alone were
appointed could not validly constitute the first State Public Service Commission in the
eye of law.
18. Having said thus, we also think that it is proper to restrain the State Government,
and the Chairman and the Members who have been appointed to the Public Service
Commission, which is yet to be constituted as envisaged by the Constitution and the
Regulations, from making recommendations for the appointments until the Public Service
Commission as envisaged by the regulations framed under Article 318 of the
Constitution, in fact, has come into existence. In other words, until the State Public
Service Commission consisting of the Chairman and four Members comes into existence
de facto and de jure, further steps by the Commission should be kept in abeyance. We,
therefore, direct that unless and until the Chairman and the four members of the first
Jaharkhand State Public Service Commission are appointed, the further process of
selection and recommendations by the State Public Service Commission would be kept in
abeyance. Further steps will be taken and the recommendations made only after a full
fledged State Public Service Commission comes into existence.
265
19. There is challenge to the mode of the examinations conducted by the Public
Service Commission, including a charge that one of the Coordinators appointed for the
examination was the brother of the member. There was a further contention that no
proper examination halls/places were chosen for the examination and candidates did not
even have proper places to sit to take the examination which was held in a most
haphazard manner. Apart from the allegations in that behalf and some newspapers
cuttings said to support such allegations, no concrete material was brought before us to
enable us to accept such a contention to invalidate the examination on the ground that it
was vitiated by serious irregularities. We may notice that no candidate who took the
examination has come before us questioning the mode of the conduct of the examination.
We are not satisfied that adequate materials are available to justify our interference with
the examination already held. Same is the position regarding the process of evaluation of
the answer papers sought to be raised on behalf of the petitioners. On the whole, we are
satisfied that the examination already conducted could not be interfered with on these
grounds.
20. In one of the writ petitions, this Court issued a direction that the three writ
petitions in that writ petition, would be permitted provisionally to take the examination or
to write the examination even if they did not fulfill the age requirement or the age
qualification, subject to the result of the writ petition. It appears that some unruly
elements on the strength of that order forced some of the officers or the authorities to
issue them hall tickets to appear in the examination even though they were over aged and
did not qualify as per the amended rule issued pursuant to the earlier decision of the
Division Bench. It is made clear that those who did not possess the requisite qualification
as per the amended rule 4(d) of the Rules, even if they have written the examinations,
would not be considered for recommendation, selection or appointment by the
Commission or by the Government. Appearance of those who did not possess the
requisite qualifications or the age qualification, will be ignored by all those concerned
with the process of selection and appointment.
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21. In the result, the writ petitions, other than WP (PIL) No. 2769 of 2003 are
dismissed. W.P. (PIL) No. 2769 of 2003 is partly allowed with the direction to the State
of Jharkhand and State Public Service Commission not to proceed with the
recommendatory process until the full State Public Service Commission as envisaged by
the Jharkhand Public Service Commission (Conditions of Service) Regulations, 2000
comes into existence. It is made clear that the steps so far taken and the examinations
conducted will treated as valid. There will be no order as to costs.
***
267
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P (C) No. 4997 of 2003
D.D. 2.12.2003 Hon’ble The Chief Justice P.K.Balasubramanyan,
Hon’ble Mr. Justice Tapen Sen Sanjay Kumar Tiwari ... Petitioner Vs. The State of Jharkhand & Ors . ... Respondents
Examination – Confusion regarding answers in respect of few questions etc.
Petitioner a candidate for State Civil Services sought cancellation of first sitting of General Study Examination held on 17.8.2003 – He alleged that for the same reasons second stage examinations held for 23 optional subjects were all cancelled – Court found that the defect alleged were not such warranting interference by the Court – Hence writ petition dismissed. Case referred: AIR 1994 MP 164 – Vivek Jain Vs. The Professional Examination Board, Madhya Pradesh, Bhoal & Ors.
ORDER
The essential prayer in this writ petition is for the issue of a writ of mandamus
directing the respondents, especially the Jharkhand Public Service Commission, to cancel
the first sittings of the General Study Examination held on 17.08.2003 for selection to the
State Civil Services. According to the petitioner, who was himself a candidate at the
examination, considerable confusion arose out of the question paper supplied and there
were variations in Optical Mark Recognition Sheet or Optical Mark Reader Sheet. As an
example, the petitioner produced Annexure 6, which according to him, showed defective
questions in the question paper and variations between English version of the question
and the answers suggested and the Hindi version of the questions and the answer
suggested and their order in the matter of choice. According to the petitioner, the
examination conducted at the Second Stage for 23 optional subjects were all cancelled for
such reasons and on those very same reasons the concerned examination at first sitting
held on 17.8.2003 was also liable to be cancelled. Learned Advocate General appearing
on behalf of the respondents submitted that the examinations in the second sitting
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regarding 23 Optional Subjects were cancelled for other reasons like the question paper
not reaching the examination centers in time, examinations not being held in all centers at
the same time and such other substantial reasons. He pointed out that there was no case
that there was any such problem connected with the first sitting in the General Study
examination held on 17.08.2003. He reminded the Court that in such academic matters
the Court can interfere only if some thing had taken place, which would shock the
conscience of the Court.
What we find is that it was an objective type of question paper and the total marks
was 150. Going by the writ petition, there was some confusion regarding answer in
respect of a few questions which would have involved some 5 to 10 marks altogether.
Even assuming for the purpose of argument that there was such confusion, we do not
think that it would be proper or just in public interest to cancel the entire examination on
that score. We may indicate here that on hearing counsel and on scrutinizing the alleged
errors, variations, mistakes or defects pointed out by him in the question paper concerned,
we are not satisfied that there are in fact such defects as to warrant interference by this
Court. In any event we have to say that there was no such shocking irregularity or gross
irregularity which would justify our interference. On the whole, we are not satisfied that
our power of judicial review should be exercised as to nullify this particular examination.
It is clear now from the arguments set out before us that the examination in the
second sitting in the optional subjects had to be cancelled for various irregularities that
occurred due to absence of care on the part of those who are entrusted with the task of
holding such examinations. One would expect a body like the Jharkhand Public Service
Commission, to be capable of holding examinations properly and in time and at same
time ensuring fairness in their conduct, preventing attempted malpractices. However now
that the matter has come before us, we direct the respondents and especially the
Jharkhand Public Service Commission to ensure that when they hold re-examinations of
the second sittings in the optional subjects, they should ensure that there is no leakage of
question papers, that the question paper reach all the centers duly packed and sealed and
in time; that the question papers are opened at the various centers only on time just before
their distribution to the candidates; that the examination are started simultaneously and at
269
the same time in all the centers in the State and that the papers are got valued by persons
who are qualified to do so. We think that these directions would ensure that the
examinations in optional subjects, to be conducted again, are conducted in the proper
manner. It is also necessary for the Jharkhand Public Service Commission to deal with
those who indulge in unfair practices or malpractices in the examinations, strictly and
impose on them exemplary punishment so that they will not be tempted to repeat such
improper practices which vitiate the whole process of such examination in the State.
Learned counsel for the petitioner relied on a decision of the Madhya Pradesh
High Court in Vivek Jain verses The Professional Examination Board, Madhya Pradesh,
Bhopal & others (AIR 1994 MP 164) to submit that, the Court had interfered with the
examination when irregularities similar to the ones involved here were unearthed. What
is seen is that the Court had found that the question bearing two or more equally correct
answers out of four possible answers were set and this was contrary to the scheme of an
objective test. We are not in a position to follow the ratio of that decision since we find
that the errors involved here are not of such a nature as to go to the very root of the
purpose of the examination as appears to have happened in that case. Therefore, nothing
turns of on the decision relied upon by the petitioner.
We dismiss the writ petition subject to the directions issued to the Jharkhand
Public Service Commission as above.
***
270
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P No. 5440 of 2003 With W.P No. 5222 of 2003
D.D. 2.12.2003 The Hon’ble Mr. Justice M.Y.Eqbal
Ashok Kumar Sahani& Ors. ... Petitioners Vs. State of Jharkhand & Ors. ... Respondents Eligibility:
Petitioners appeared for examination conducted for recruitment to the post of Primary Teachers in the primary school – The candidature of the petitioners was restricted only to the post of Physical Trained Teachers as they possessed training teachers qualification only in Physical Education and not any other subjects – The petitioners were not considered for appointment as they obtained Physical Training qualification after the recruitment notification – The High Court dismissed the writ petitions. Held: Even if a person is selected for appointment he does not acquire any indefeasible right to be appointed to the post in question. Similarly, merely because a person was allowed to appear in the examination does not acquire any right to be considered for appointment if he does not possess requisite qualification. Cases referred: 1. (1990)3 SCC 655 - District Collector & Chairman, Vizianagaram Social Welfare
Residential School Society, Vizianagaram and another vs. M.Tripura Sundari Devi. 2. (1994) 1 U.J.(SC) 713 – Union of India & Anr. Vs. Shri Yogendra Singh 3. (1998)8 SCC 345 – U.P. Public Service Commission Vs. Dr.Saad Usmani
ORDER
These two writ petitions involving common questions of facts and law have been
heard together and are disposed of by this common judgment.
2. Petitioners seek issuance of writ in the nature of mandamus commanding upon the
respondents to consider their cases for appointment to the post of primary teachers in the
primary school situated within their respective districts in accordance with the
advertisement issued on 24.10.2002 and further for a direction to the respondents not to
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restrict their candidatures for being appointed to the post primary teachers only against
the vacant posts of physical trained teachers which are available in the four districts.
3. The facts of the case lie in a narrow compass.
4. The respondent- Jharkhand Public Service Commission (shortly the
“Commission”) issued advertisement-dated 24.10.2002 for appointment of primary
teachers in all the 22 districts of the State of Jharkhand. In the said advertisement the
eligibility conditions were prescribed and the candidates possessing qualifications, as
mentioned in the advertisement, were eligible to apply for the said post. Subsequently on
28.10.2002 by way of corrigendum the Commission clarified the definition on the words
‘trained teachers’ as defined under Rule 2 of the Jharkhand Primary Teachers
Appointments Rules, 2000 (the Rule). In pursuance of the said advertisement and
corrigendum the petitioners applied for the said post.
5. Petitioners case is that after being found fit they were issued admit cards for
appearing in the examination to be held on 25.5.2003. All the petitioners appeared in the
examination and did well. They are said to have secured high marks in the said
examination. The petitioners thereafter came to know that their cases for appointment as
Primary Teachers has been restricted only against the post of Physical Trained Teachers
and they shall not be considered for appointment in the general post of Primary Teachers
at par with the candidates having the qualification of matric trained teachers.
6. The respondents, in their counter affidavit, have stated that till the result of the
physical trained teachers has not been published and as such the writ application is
premature. It is stated that the petitioner’s qualification is of physical trained teachers
against the vacant post of physical trained teachers. Further case of the respondent is that
Rule 2(b) of the Rule, 2000 has already been amended vide notification dated 6.3.2003
and as such the petitioners are entitled to be considered for appointment on the post of
Physical Trained Teachers against the vacant post, if any, in their district.
272
7. Mr. Mahesh Tiwary, learned counsel appearing on behalf of the petitioners
contended that the petitioners are trained teachers as defined under Rule 2(b)(iii) of the
Rule 2000, and, therefore, they are entitled to appointment against the general seats of
Primary Teachers. Learned counsel, drawing my attention to a Division Bench Judgment
of this Court rendered in W.P(PIL) No. 2769 of 2003 and submitted that the Commission
has no power to restrict for being appointed against the general seats of Primary
Teachers. Learned counsel submitted that the notification dated 6.3.2003 making
amendment in Rule 2 of Rule 2000, does not apply in the cases of the petitioners.
8. Mr. R.N. Sahay, learned Sr. Standing Counsel No.II on the other hand, submitted
that as per the amended Rule the petitioner do not possess the requisite qualification for
being appointed as Primary Teachers. Learned counsel submitted that the petitioners have
not challenged the notification dated 6.3.2003 and therefore they cannot be allowed to
claim appointment on the general seats of Primary Teachers in violation of the Rules.
9. From perusal of the advertisement-dated 24.10.2002, it appears that the requisite
qualification prescribed for appointment on the post of Primary Teachers are as follows:
“(A) Matric or equivalent examination passed (B) Two years teachers training or B.Ed/Dip-in-Ed/Dip-in-teacher or C.P.Ed
10. By a corrigendum as contained in Annexure-2 the words ‘trained’ has been
defined and clarified as candidates having two years teachers training or B.Ed/Dip-in-
Ed/Dip-in-teacher or C.P.Ed/D.P.Ed.
11. Rule 2 of the Jharkhand Primary Teachers Appointments Rules 2000 reads as
under:
“(Ka) “Prarambhik Vidalaya” se abhiprerit hai satwen warg tak ke aise vidyalaya jo Jharkhand gair sarkari prathmik Vidhyalaya(Niantryan Grahan) Adhiniyam, 2001 ke tahat rajya sarkar dwara adhigrihit hai ya kholigaye hai. (Kha) “Prakshikhit” se abhiprerit hai waise baikti jo manyata prapt prakshikhan sanathan prakshikhan prapt on uttrain ho.
273
(i) Do warsiye Sikshak Prasikhan athwa (ii) B.Ed, Dip-in-Ed/Dip-in-teach (iii) C.P.Ed/D.P.P.Ed
12. The Rule has been amended vide notification dated 6.3.2003 by the said
amendment in Rule2(iii) it was clarified that the qualification of C.P.Ed and D.P.Ed shll
be only for the post of Physical Trained Teachers.
13. On consideration of the pleadings of the parties and after hearing learned
counsels, the only question that emerge for consideration is whether petitioners are
entitled to claim their appointment against the general seats of primary teachers and not
only against the post of Physical Trained Teachers.
14. Admittedly, petitioners do not possess requisite qualification of two years
‘Teachers Training or qualification of B.Ed, Dip-in-Ed/Dip-in-teach. They are
matriculate and completed Physical Education Training Course, known as Physical
Trained Teachers. As noticed above, in the notification dated 6.3.2003 it was clarified by
amendment in Rule 2(iii) that the candidates having qualification of C.P.Ed/D.P.P.Ed
shall be eligible against only the post of Physical Trained Teachers. Admittedly all the
petitioners appeared in the examination on 27.5.2003 i.e. much after the notification
dated 6.3.2003 and therefore merely because the petitioners submitted their applications
before the amendment in Rule 2(iii) came into force they cannot claim their right to be
considered for appointment against the post for which they do not possess requisite
qualification. Petitioners cannot take the plea that they had no knowledge about the
amended Rule before they appear in the examination as it will appear from Annexure-4
that respondents have notified in the Newspaper dated 22.4.2003 to the effect that
candidates having qualification of C.P.Ed/D.P.P.Ed shall be eligible only against the
vacant post of Physical Trained Teachers.
15. Recently some of the candidates challenged the advertisement dated 24.10.2002
on the ground of non fixation of upper age limit, standard and level of examination in
Public Service Interest Litigation being W.P (PIL) No. 2769 of 2003 which has been
274
disposed of by a Division Bench of this Court along with other writ petitions vide
Judgment dated 29.9.2003. While deciding the issue involved in the said writ petition,
their Lordships held that those candidates who do not possess requisite qualification or
the required age will not be considered for recommendation, selection or appointment.
Their Lordship observed.
“In one of the writ petitions, this Court issued a direction that the three writ petitions in that writ petition, would be permitted provisionally to take the examination or to write the examination even if they did not fulfill the age requirement or the age qualification, subject to the result of the writ petition. It appears that some unruly elements on the strength of that order forced some of the officers or, the authorities to issue them hall tickets to appear in the examination even though they were over aged and did not qualify as per the amended rule issued pursuant to the earlier decision of the Division Bench. It is made clear that those who did not possess the requisite age qualification as per the amended rule 4(d) of the Rules, even if they have written the examinations, would not be considered for recommendation, selection or appointment by the Commission or by the Government. Appearance of those who did not possess the requisite qualification or the age qualification will be ignored by all those concerned with the process of selection and appointment.”
16. In another writ petition being W.P (PIL) No. 2517 of 2003, it was brought to
notice of the Court that the State of Jharkhand has introduced C.B.S.E Syllabus for
education in the State and that syllabus provides that English Language be taught from
the first standard. But in the Recruitment Rules, there was not even a paper in the English
in the test that was conducted for primary teachers. It was conceded by the State Counsel
that a person who has not studied English at the appropriate level cannot be entrusted
with the task of teaching English or a person who has not studied Mathematics will not be
in a position to teach that subject. A Division Bench of this Court while disposing of this
writ petition held as under:
“We, therefore, dispose of this writ petition by directing the respondents to ensure that only those who possess the qualification in the particular subject as indicated are selected and appointed to teach the particular subject. As an illustration only a teacher who has the requisite qualification in terms of the rules and who has studied the English language up to the qualification level, should be appointed as a teacher in English. The same will be the position regarding the other subjects. The authorities must also consider the need for introducing English as a subject for these selection tests taking into consideration the fact that
275
language is our window to acquisition of advanced knowledge making us competent to compete with the rest of the world in all fields of human activity.”
17. In the case of “District Collector & Chairman, Vizanagaram Social Welfare
Residential School Society, Vizianagaram and another.. Vs.. M. Tripura Sundari Devi”
(1990) 3 SCC-655, the Supreme Court while considering a question in that case where
appointments were made of a candidate not having minimum essential qualification held
that such appointment amounts to fraud on public and no Court should be a party to the
perpetuation of the fraudulent practice. Their Lordships observed:
“It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointiees but who had not applied for the post because they did not possess the qualification mentioned in advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relax able. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact.”
18. In the case of “Union of India & Another Vs. Shri Yogendra Singh”(1994)1
U.J.(SC) 713, the Apex Court while considering a similar question held that no candidate
who does not possess currently prescribed qualification but who may possess the
educational qualification prescribed earlier, can be said to qualify or have any vested
right to appointment even against some earlier unfilled vacancy. Every candidate who
aspires to fill any vacancy must possess the educational qualification that are then
prescribed.
19. In the case of “U.P Public Service Commission Vs. Dr. Saad Usmani” (1998)
SCC-345, the fact of the case was that an advertisement was issued inviting application
for the post of Professor, one of the essential qualification prescribed for the said post
was 10 years ‘teaching experience of the subject including three years’ on the post of
Reader in a recognized institution. Petitioner of that case was permanent Demonstrator
and also worked as Lecturer for some time. The Commission was of the view that
276
respondents do not possess requisite teaching experience and he was not called for
interview. Petitioner filed writ petition in Allahabad High Court, which was allowed on
the ground that since respondent was employed as full time Demonstrator his experience
as Demonstrator should be counted for the purpose of teaching experience. The Supreme
Court in an appeal moved by the Commission set aside the order of the High Court and
held as under:
“The respondent satisfied the first condition in as much as he held worked as a full time Demonstrator but he did not satisfy the second condition since he did not possess a postgraduate qualification. In view of the decision of the Commission dated 30.10.1992 the experience of the respondent on the post of Demonstrator could not, therefore, be taken into account and if the period the respondent worked as Demonstrator is excluded he did not have the requisite ten years’ teaching experience. There was, therefore, no infirmity in the view of the Commission that the respondent did not possess the requisite qualification prescribed for the post of Professor in Moalejat. The High Court in our opinion, was in error in holding that the respondent fulfilled the conditions of the eligibility and was wrongly denied consideration for the post of Professor in Moalejat by the Commission’.
20. In the instant case, admittedly, petitioners obtained physical training course which
is required for the post of physical trained teachers. For being appointed as a primary
teacher a candidate must possess qualification of a trained teacher i.e B.Ed/Dip-in-
Ed/Dip-in-Teach. In my considered opinion therefore, petitioners do not possess requisite
qualification for appointment on the post of primary teacher.
21. Mr. Mahesh Tiwari, learned counsel for the petitioners vehemently argued that
since petitioners appeared in the written examination and they have done well they are
bound to be selected for the post of primary teachers. I do not find any force in the
submission of the learned counsel. The law has been set at rest by catena of decision of
the Supreme Court that even if a person is selected for appointment does not acquire any
indefeasible right to be appointed to the post in question. Similarly, merely because a
person was allowed to appear in the examination doesn’t acquire any right to be
considered for appointment if does not possess requisite qualification.
277
22. Having regard to the entire of the case and the discussions made above, I have no
hesitation in holding that petitioners since do not possess requisite qualification are not
entitled to claim their appointment on the post of primary teachers.
23. For the reasons aforesaid, I do not find any merit in these writ petitions are
accordingly, dismissed.
***
278
IN THE HIGH COURT OF JHARKHAND, RANCHI W.P.S. No. No.2587 of 2004
D.D.13.5.2004 Hon’ble Mr. Justice M.Y.Eqbal
Sanju Kumari ... Petitioner Vs. State of Jharkhand & Ors. ... Respondents
Appointment – Cancellation of appointment obtained by misrepresentation:
The petitioner was appointed to the post of Teacher under reservation quota – It was found that the petitioner took the benefit of reservation illegally – On that ground appointment was cancelled – Writ petition dismissed.
ORDER Heard the parties.
Petitioner was appointed on the post of teacher in 2003 under reservation quota.
Subsequently, it was found that the petitioner took the benefit of reservation illegally and
because of mis-representation appointment was given to her. On that ground, service of
the petitioner was terminated. I do not find any reason to interfere with the impugned
order of termination.
This writ application is accordingly, dismissed.
***
279
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P (C) No. 4075 of 2004
D.D. 13.8.2004
Hon’ble Mr. Justice R.K.Merathia Kumar Nilesh & Anr. ... Petitioners Vs. State of Jharkhand & Ors. ... Respondents Examination – Rescheduling of Examination by P.S.C.
The petitioners sought for rescheduling the Examination to be held on 23.8.2004 on the ground that same will clash with L.L.B. Examination – Writ Petition dismissed. Held: The Court cannot order rescheduling of examination because the dates of examination may clash with the University Examination.
ORDER
Heard. Petitioners have prayed for rescheduling the examination to be held on
23.8.2004 published by Jharkhand Public Service Commission, on the ground that the
same will clash with the examination of L.L.B Part II and Part III, 2004 announced by
Vinova Bhave University, Hazaribagh.
In my opinion, this Court cannot order rescheduling of the examination only
because in case of few students like petitioners the dates of examination may clash.
Nothing has been brought to show that the University and Jharkhand Public Service
Commission should consult before announcing the dates of examination.
In the circumstances, no relief can be granted to the petitioners in this writ
petition, which is, accordingly, dismissed.
***
280
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.917 of 2005
D.D. 28.2.2005 Hon’ble Mr. Justice S.J.Mukhopadhaya
Rajiv Kumar Mishra ... Petitioner Vs. The State of Jharkhand & Ors. ... Respondents
Eligibility: Petitioner though successful in the written test conducted by J.P.S.C. for appointment to the post of Primary Teacher in Nationalised Primary School was not appointed though persons below him in the merit list were appointed – High Court following the decision of Division Bench in LPA No.23 of 2004 (Dilip Kumar Gupta & Ors. Vs. The State of Jharkhand & Ors.), has disposed of the case with a direction that if it is brought to the notice of the Government or the concerned District Education Officer the Institute from which the petitioner obtained the Teachers Training College has been recognised by the N.C.T.E. authority will consider his case for appointment if he is otherwise eligible. Held: To be eligible to be appointed as a Teacher prior recognition of the Institute conducting the Teacher Training Examination by N.C.T.E. is a must after 1.1.1996 in view of N.C.T.E. Act.
ORDER This writ petition has been preferred by the petitioner for a direction on the
respondents to consider his case for appointment as primary Teacher under the State of
Jharkhand.
2. According to the petitioner, he is eligible for appointment to the posts of
Primary Teacher and though he has competed in the written test for appointment to the
post of Primary Teacher, held by Jharkhand Public Service Commission, Ranchi (herein
after to be referred as JPSC), he has not been provided with the letter of appointment
whereas the persons, below him in the merit list, have been appointed.
3. The case of the petitioner is that he, having passed B.Ed. Examination from
S.N. Zaheer Alam Teachers Training College, examination of which was conducted by
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Lalit Narayan Mithila University, Darbhanga (1997 Session), is eligible for appointment
to the posts of Primary Teacher. Provisional certificate, granted by the University has
been enclosed as Annexure 7 to the Writ petition. In pursuance of an advertisement,
published by the JPSC in the month of August 2002, the petitioner applied for
appointment as Primary Teacher in Nationalized Primary School. He was allowed to
appear at the written competitive test held on 27th May, 2003. Thereafter, results of the
successful candidates were published in the month of November, 2003 and the petitioner
was also declared sucessful. However, letter of appointment has not been issued to him,
though the persons, below him in the merit list, have been appointed.
4. When the case was taken up, learned counsel for the State relied on a
judgment dated 4th March, 2004, rendered by learned Single Judge of this Court in the
case of Suresh Kumar & ors. Vs.State of Jharkhand & Ors. (W.P. (S) No.588 of 2004)
and analogous cases. Those cases were dismissed on the ground that the Institute from
where those petitioners passed Teachers Training Examination was not recognized by the
National Council for Teachers Education.
The judgment, rendered in W.P.(S) No.588 of 2004 (Suresh Kumar & ors. Vs. State
of Jharkhand & ors.) and analogous cases fell for consideration before a Division bench
of this Court in L.P.A No.235 of 2004 (Dilip Kumar Gupta & ors. Vs. The State of
Jharkhand & Ors.) and analogous cases. In the said case, Division bench of this court
having taken note of expression “Recognized Training Institute”, held as follows:
“ Therefore on a proper construction of expression “Recognized Training Institute” (Manyata Prapt Prakshikshan Sansthan), as occurring in Rule, 2(Kha) of Rules 2002, I hold that the expression “Recognized Training Institute” means a Training Institute, recognized or established either by State Government or Union of India or Statutory Bodies, such as, N.C.T.E , UGC etc., / Organizations, maintained and controlled by either State Government or Central Government or a Training Institute, recognized or affiliated by a University or a Board for imparting Teachers Training Course. Xx xx xx xx xx
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In the facts and circumstances, having regard to the guidelines, issued by the State from time to time, and the provisions of the Ordinances, Acts and Rules, as discussed above, in my considered opinion.
(a) “Recognized Institute” means an institution recognized or established by State Government or Union Government or by Statutory Bodies/Organizations, maintained and controlled by either State Government or Central Government or recognized University for imparting education (training herein)
(b) After 1st july 1995 or at best for another period of six months i.e., after 1st January 1996 nobody, offering a course of training in Teachers Education, can run the institute without prior recognition by the NCTE, there being bar to run such institute under sub-section(1) to section 14 of the NCTE Act. 1993:
(c) Even if a Teachers Training Institute is affiliated to a
University, recognized by the University Grant Commission, no Teachers Training Examination can be held by the University whether provisional or other wise, for the students of such Teachers Training College after 1st January 1996, if the institute is not recognized by the NCTE in view of Clause (b) to section 16 of the NCTE Act 1993:
(d) A Person, who has completed and obtained a
Degree/Diploma / Certificate in Teachers Training Course prior to 31st january 1996 i.e., six months after promulgamation of the NCTE Act 1993 from an institute, recognized or established by the State Government or Union Government or by Statutory Bodies/ Organizations, maintained and controlled by either State Government or Central Government or recognized University or affiliated by a recognized University for imparting Teachers Training Education, is eligible for appointment to the post of Primary Teacher, if other wise found fit and.
(e) Since 4th September 2001 i.e., the date NCTE (Determination of Qualification & Recruitment of Teachers) Regulation 2001 came into force, no untrained person can be appointed to the post of Primary Teacher.”
The Division bench also took not of the relevant provisions i.e., 2(Kha) of the
Jharkhand Primary School Amendment Recruitment Rules2003 as also sections 14 and
16 of the National Council for Teachers Education Act 1993(Act NO.73 of1993) and held
as follows:
“Definition:- xx xx xx
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(kha) “Trained” means those persons, who have got and passed the following training from a recognized Training Institutions:- (i) Two years teachers training ,or (ii) B.Ed. /Dip in Ed/ Dip in Tech
... ... ... xx xx xx
“14 . Recognition of institutions offering course of training in teacher education :(1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day , may, for grant of recognition, under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations. Provided that an institution offering a course of training in teacher education immediately before the appointed day, shall be entitled to continue, such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee.
2. The fee to be paid along with the application under sub-section (1) shall be such as may be prescribed.
3. On receipt of an application by the Regional Committee from any institution under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall:-
a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such condition as may be determined by regulation:or b) if it is of the opinion that such institution does not fulfils the requirements laid down in sub-cluase (a) pass an order refusing recognition to such institution for reasons to be recorded in writing: c) Provided that before passing an order under sub-clause (b) the Regional Committee shall provide a reasonable opportunity to the concerned institutions for making written representation..
(4) Every order granting or refusing recognition to an institution for
a course or training in Teacher education under sub-section 3 shall be published in the official gazette and Communicated in writing for
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appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government.
(5) Every institution in respect of which recognition has been
refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3).
(6) Every examining body shall, on receipt of the order under sub-section (4). a) grant affiliation to the institution, where recognition has been granted:or b) cancel the affiliation of the institution, where recognition has been refused.
“16 Affiliating body to grant affiliation after recognition or permission by the council: Notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day:- a) grant affiliation, whether provisional or otherwise, to any institution; or b) hold examination, whether provisional or other wise , for a course of training conducted by a recognized institution. Unless the institution concerned has obtained recognition from the Regional Committee concerned under section 14 or permission for a course or training under section 15”
Taking into consideration the facts and circumstances of the case, the statutory Rules, 2002 and the decisions, rendered by the Supreme Court, as discussed above, in my view no ground is made out to interfere with the orders, passed by the Secretary Human Resources Development Department (Primary Education), Govt. of Jharkhand, Ranchi, as affirmed by the learned Single judge or to grant any relief to the appellants/petitioners. The appellants /petitioners, having no requisite qualification of Teachers Training as per Rule 2(kha) of Rules 2002, many of hem having obtained training qualification form unrecognized institutions and one institution even found fake by the UGC and the Degree / Diploma/Certificate obtained in other cases are not being equivalent to Trained Graduate/Teachers Training, no relief can be granted to any of them. There being no merit, all the appeals and the analogous writ petition are hereby dismissed. However, in the facts and circumstances, there shall be no order as to cost.”
8. Admittedly, the petitioner passed B.Ed. Examination after 1st July 1995 i.e., after
NCTE Act 1993 came into force. It is also not in dispute that the petitioner prosecuted his
Teachers Training in an Institution, known as SN. Zaheer Alam Teachers Training
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College. There is nothing on the record to suggest that SN Zaheer Alam Teachers
Training Institute was recognized by the National Council for Teachers Education, New
Delhi. Such being the position, after NCTE Act came into effect and in view of Sections
14 and 16 of the NCTE Act 1993 there was no occasion or any University to hold B.Ed.
Examination of the students of the College, not recognized by the National Council for
Teachers Education.
9. In the facts and circumstances, no specific relief can be granted in favour of the
petitioner, but he is given liberty to approach the competent authority, if the Institute
from where he has prosecuted Teachers Training i.e., SN Zaheer Alam Teachers Training
College is recognized by the National Council for Teachers Education. If it is brought to
the notice of the competent authority i.e., Secretary, Human Resources Development
Department, Govt. of Jharkhand Ranchi, or the concerned District Education Officer that
the institute i.e., SN Zaheer Teachers Training College has been recognized by the
National Council for Teachers Education, the said authority will consider the case of the
petitioner for appointment to the post of primary teacher, if he is other wise eligible and
competed in the written test and has been recommended by the JPSC.
10. The writ petition stands disposed of with the aforesaid observations and
directions.
***
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IN THE HIGH COURT OF JHARKHAND AT RANHI W.P.(S). No. No.920 of 2005
D.D. 28.2.2005
Hon’ble The Acting Chief Justice S.J.Mukhopadhaya Bhagirath Mahto ... Petitioner Vs. State of Jharkhand & Ors. ... Respondents Examination – Furnishing of marks:
The petitioner sought direction to P.S.C. to supply the marks obtained by him in Primary Teachers Recruitment Examination – P.S.C. rejected the application on the ground that there is no provision to supply the marks sheet – Writ petition dismissed.
ORDER
This application has been preferred by the petitioner for a direction on the
respondent Chairman, Jharkhand Public Service Commission, Ranchi, to supply the
marks, obtained by him in Primary Teachers Recruitment Examination, held on 27th May
2003.
It appears that the petitioner had earlier moved before this Court vide W.P.(C)
No.5057 of 2004 for similar relief. In the said case, a Bench of this Court vide order
dated 22nd September, 2004 allowed the petitioner to represent before the Chairman,
Jharkhnad Public Service Commission, Ranchi, who, in his turn, was directed to enquire
into the matter and if there is a provision to supply the mark sheet, then to take
appropriate steps. The Jharkhand Public Service Commission, thereafter by its letter No.
48 dated 18th January, 2005 while informed that Rs. 100/-, deposited by him has been
refunded, also informed that there is no provision to supply the mark sheet to the persons,
who had appeared at the primary Teachers Recruitment Examination.
So far as appointment of the petitioner as Trained Teacher is concerned, as there
appears to be no cause of action and there is no pleading that any person, having obtained
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lesser mark than him, has been appointed, as also the name(s) of such person(s) not
having been given, merely on the basis of vague pleadings, no relief can be granted to the
petitioner.
This application is accordingly, dismissed.
***
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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A.No. 235 of 2004 with L.P.A.No.236 of 2004 with
D.D. 30.3.2005 Hon’ble Mr. Justice S.J.Mukhopadhaya
Hon’ble Mr. Justice Narendra Nath Tiwari Dilip Kumar Gupta & Ors. ... Appellants Vs. The State of Jharkhand & Ors. ... Respondents Eligibility – Requisite Qualification: The petitioners who applied for appointment to the post of Primary Teachers though declared successful by P.S.C. were not appointed on the ground that they do not possess the requisite qualification from an Institute recognised by N.C.T.E. Held: The appellants/petitioners having no requisite qualification of teachers training as per Rule, many of them having obtained training qualification from unrecognised institutions, no relief can be granted to any of them.
ORDER
As in all the appeals and writ petition, common questions of law are involved,
relating to appointment to the posts of Primary Teachers in Nationalized Primary
Schools, they have been heard together and are being disposed of by this common
judgment.
In pursuance of an advertisement, published by the Jharkhand Public Service
Commission, Ranchi (hereinafter to be referred as UPSC), all the appellants/petitioners
applied for appointment to the post of Primary Teachers; most of them were declared
successful by the J.P.S.C. but they have not been appointed on the ground that they do
not possess the requisite qualifications, i.e. degree/diploma/certificate of teachers training
from an institute, recognized by the National Council for Teachers Education (hereinafter
to be referred as ‘NCTE’).
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In fact, after selection of the candidates, the JPSC recommended the names of the
selected candidates on the condition that appointment letter(s) should be issued only after
proper verification of the certificates, relating to academic, training and other
qualifications as also the caste certificates etc, One of the questions raised was “whether
the Institution(s)/University(s), which has/have issued training certificate(s), is/are
recognized or not”. The Human Resources Development (Primary and Secondary
Education) Department, Govt. of Jharkhand, Ranchi issued clarification by way of
guidelines vide Memo No.2912 dated 13th November, 2002, followed by Letter No.B-1-
423/03-404 dated 16th February, 2004 to identify the recognized
Institutes/Degree/Diploma/Certificates. Being dissatisfied with the same, different writ
petitions, including W.P.(S) No.588 of 2004 (Suresh Kumar & ors. Vrs. State of
Jharkhand & ors.), were preferred by the appellants along with others. They were heard
together by the learned Single Judge, who by a common judgment dated 4th March, 2004,
held that no direction can be given to the respondents to appoint the writ petitioners on
the basis of Teachers Training Certificates, issued by unrecognized and private
Institutions, who have conducted the examinations at their won and have declared the
results. All the writ petitions were dismissed with the aforesaid observations.
Some other similar writ petitions, preferred by some of the appellants, were
subsequently dismissed, following the decision of the learned Single Judge, passed in
‘Suresh Kumar & ors’. (supra).
Question of law:
The main questions of law, involved in the present cases, are
(i) Whether the expression “recognized training institute”, as mentioned in Rule 2(kha) of the Jharkhand Primary School Recruitment Rules, 2002 (hereinafter to be referred as Rules, 2002’) means a Training Institute/University, recognized by NCTE or by a Statutory/ Regulating Body or by any Government?
(ii) Whether Teachers Training Degree/Diploma/Certificate, obtained by the
appellants/petitioners, have been granted by a recognized Training Institute/ University,
as occurring in Rule 2 (kha) of Rules, 2002?
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(iii) Whether the Degree/Diploma/Certificate of ‘Acharya’, granted by
Kamaleshwar Singh Darbhanga Sanskrit Vishwavidyalaya, Darbhanga, Bihar, Laxmi
Devi Sarraf Adarsh Sanskrit Mahavidyalaya Jharkhand, Ranchi; ‘Certificate of Guidance’
(‘C.I.G’ for short.), granted by Indira Gandhi National Open University, New Delhi;
‘Moallim-E-Urdu’, granted by Jamia Urdu, Aligarh, Uttar Pradesh; ‘Shiksha Alankar
‘,granted by Rashtriya Patrachar Sansthan, Allahabad, Uttar Pradesh, are equivalent to
equivalent to Degree/Diploma/Certificate of Teachers Training ?
Relevant common facts of all the cases:
The JPSC issued an advertisement in different newspapers in the month of
August, 2002 inviting applications from the eligible candidates for filling up the posts of
Primary Teachers in Nationalized Primary Schools. In the said advertisement, apart from
district-wise vacancies, necessary educational qualifications i.e. (i) Matriculate or
equivalent and (ii) Two year Teachers Training or B.Ed./Dip.in Ed./Dip.in Teach or
C.P.D., were also prescribed.
A large number of candidates, including the appellants/petitioners applied and
were allowed to appear at the written competitive test, held on 27th May, 2003. The
results of successful candidates, including some of the appellants, were published by the
JPSC on 13th/14th November, 2003. The JPSC simultaneously issued Letter
No.1/Exam.JPSC-99/2003-132/Sa.Ko. dated 13th November, 2003 to the Secretary,
Primary & Secondary Education, Human Resources Development Department,
Jharkhand, Ranchi. By the said letter while district-wise list of successful candidates were
circulated, a separate district-wise list of successful candidates was also forwarded whose
certificate and others informations’ were found doubtful. It was informed that the result
of those candidates have been kept in waiting. The competent authorities were also asked
to accept the joining of the newly recruited persons, only after necessary verification of
certificates as also other documents and in case of anything wrong, instead of appointing
such candidate(s), to fill up the post(s) by persons whose names are appearing in the
waiting list of successful candidates and who possess the requisite documents/certificates.
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The Secretary, Primary, Secondary & Mass Education, Govt. of Jharkhand,
Ranchi, thereafter, by Letter No.8/B1-199-03-2912 dated 13th November, 2003 forwarded
guidelines to all the Deputy Commissioners for appointment of the recommended
candidates. It was informed that before issuance of letters of appointment, District
Education Establishment Committee should keep in mind that:-
(1) As per Rule 2(kha) of Rules, 2002, it should be verified that the candidate
has obtained training from a “recognized Training Institute” and is successful. It should
be kept in mind that National Council of Teachers Education Act, 1993 (hereinafter to be
referred as NCTE Act, 1993) has come into force with effect from 17th August,1995 (*),
according to which a Teachers Training Institute should be recognized by NCTE. For
those candidates, who have obtained training after 17th August, 1995 from a Teachers
Training Institute, it should be verified whether such institute is recognized by NCTE or
not. For those, who have obtained training before 17th August, 1995, it should be verified
whether the Teachers Training Institute is recognized by the State Government, where the
institute is situated.
(2) Under Clause (3) of Rule 2(kha) of the Jharkhand Primary School
Amendment Recruitment Rules, 2003, a candidate who has obtained CP.Ed. or Dip. in
Ed. Certificate” can be appointed against a post of Physical Teacher. Such physical
trained candidate can be appointed only against the post of Physical Teacher, etc.
Secretary, Human Resources Development (Primary & Secondary Education)
Department, Jharkhand, Ranchi, vide Letter No.8/B1-199/03-3139/Pri.Edn, dated 4th
December, 2003. by the said letter, while all the Deputy Commissioners, Regional
Deputy Directors of Education and the District Superintendents of Education of the State
of Jharkhand were directed to verify the certificates and other documents of the
recommended candidates, it was also informed that a large number of forged/doubtful
certificates have been found during the district-wise verification in the districts of
Sahibganj, Hazaribagh, Chatra etc. The officers were directed to ensure that no candidate
is appointed on the basis of a forged or doubtful certificate. They were directed to follow
the instructions, earlier given vide letter No.2912 dated 13th November, 2003 and Memo
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No.2992 dated 21st November, 2003 and Memo No.3010 dated 22nd November, 2003
issued by the Director, Primary Education. It was further asked to forward the list of
candidates to the JPSC and Director, Primary Education, whose certificates were found to
be forged/ doubtful.
Detailed instructions and guidelines were issued by the Secretary, Human
Resources Development (Primary & Secondary Education) Department, Govt. of
Jharkhand, Ranchi, vide Letter No.8/B-1-423/03-404 dated 16th February, 2004 after
considering the relevant Rules, gist of which are mentioned hereunder:
Sl. No. Subject Guidelines
a. Regarding appointment of the candidates. Who have passed Teachers Training Examination from the State of J & K.
The candidates who have passed the requisite Teachers Training Examination as per Rule 2 (kha) from any University or Statutory Board/Council, situated within the State of J & K., they may be appointed as the NCTE Act, 1993 is not applicable in the State of J & K. But affidavit should be obtained to the effect that they have passed the requisite Teachers Training Examination from a recognized Teachers Training Institute and their certificates are genuine and in case the Institute is not found recognized by the State of J & K, their certificates may be declared illegal and their services may be terminated without prior notice, followed by legal action.
b. Regarding appointment of the candidates, who have passed Teachers Training Examination after commencement of N.C.T.E. Act, 1993 i.e. 17th August, 1995.
Those candidates, who have passed Teachers Training Examination, as prescribed under Rule, as regular students or through correspondence course or distant education medium and the Institute has been recognized by the NCTE., they may be appointed, subject to the condition that those who have passed
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through correspondence course or distant education medium should have requisite teaching experience during the period of training. If any institution has not been recognized by the NCTE after 17th August, 1995 i.e. for the Sessions 1995-96 onwards the candidates, having passed Teachers Training Examination from such unrecognized institutions after 17th August, 1995 shall not be appointed in any circumstance.
c. Regarding appointment of the candidates, who have passed Teachers Training Examination prior to 17th August, 1995 from the institute, situated within the territory of unified State of Bihar.
With regard to the candidates, who have passed requisite Teachers Training Examination prior to 17th August, 1995 i.e. up to the Sessions 1994-96 from Govt. and Non-Govt. Primary Teachers Training Colleges, situated within the territory of unified State of Bihar, it is made clear that the examination of students of such institutes used to be conducted and result used to be published by the Bihar School Examination Board As such, those candidates, who have passed Teacher Training Examination from Bihar School Examination Board up to the Session 1994-96, can be appointed Similarly those candidates, who hold B.Ed Degree, granted by any recognized University of the then State of Bihar prior to 17th August, 1995 i.e. up to the Sessions 1995-96, may also be appointed. But the certificates granted by B.N.Mandal University; Magadh University & Kameshwar Singh Darbhanga Sanskrit University should be verified from the concerned University by sending special messenger (Gazetted Officer) prior to appointment of such candidates.
d. Regarding appointment of the The candidates, who have passed
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candidates, who have passed Teachers Training Examination from other States.
requisite teachers Training Examination prior to coming into force the N.C.T.E. Act, i.e. prior to 17th August, 1995 from different Universities, situated in other States and are recognized by the University Grant Commission, may be appointed on receipt of affidavits that they have passed requisite Teachers Training Examination from a recognized Teachers Training Institute and their certificates are genuine In case, it is found that their institutes are not recognized by the concerned State Govt. and/or certificate is found fake, their services can be terminated without prior notice, followed by legal action.
e. Regarding appointment of the candidates, who have passed Teachers Training Examination from the institutes. Registered under Societies Registration Act and situated within the State of West Bengal.
Those candidates who have passed from certain institutes situated within the State of West Bengal, such as, Devid Hare College of Correspondence, Kolkata, Dr.B.C.Roy Education College, Kolkata. All India Education Society, Kolkata All India Correspondence Coaching Society, Kolkata ; etc. should not be appointed as these institutes themselves hold and publish the Teachers Training Examination. Though these institutes are registered under the Societies Registration Act but their Teachers Training Examination are neither conducted nor their Degree/Diploma are granted by any Statutory Body.
f. Regarding appointment of the candidates, who are untrained ‘Acharya.
In those cases, where the candidates hold degree of ‘Acharya’/Fazil but are not trained, they should not be appointed as the degrees aforesaid are ‘educational qualification’
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along with which Teachers Training qualification is mandatory.
g. Regarding appointment of the candidates, who have completed six months Teachers Training Course.
Those candidates, who have passed six months Teachers Training Course, should not be appointed as none of the Teachers Training Course as prescribed under Rule 2(kha) is of six months duration.
h. With regard to recognized institutes, situated in the State of U.P.
So far as the Teachers Training Institutes situated within the State of U.P. such as, Hindi Sahitya Sammelan, Prayag, Allahabad Hindi Sahitya Sammelan, Allahabad Rashtriya Patrachar Sansthan,Kanpur, Zamia Urdu, Aligarh, Rashtriya Kendriya Adhyapan Sansthan Allahabad: Indira Gandhi College, Allahabad, Vocational Training College, Allahabad etc., are concerned, information have been sought for from the Director, S.C.E.R.T. Lucknow and Director, Higher Education. Allahabad in regard to Teachers Training Certificates, granted by them prior to 17th August, 1995. On receipt of information, appropriate decision will be taken and communicated.
It is not denied in these cases that the appellants/ petitioners have not obtained
Teachers Training Certificates from any Teachers Training Institute/University,
recognized by the N.C.T.E. On the other hand, there is a dispute, raised by the
respondents “whether the Degree/Diploma/Certificate, obtained by one or other
appellant/petitioner is equivalent to B.Ed./Dip.in Teach or any other Teachers Training
qualification and whether they are specified or unspecified degree/diploma/ certificate.”
For determination of the issue “whether the institutes from where the
appellants/petitioners have obtained degree/diploma/certificate are recognized institute,
as envisaged under Rule 2(kha) of Rules, 2002 and whether such
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degrees/diplomas/certificates, are equivalent to B.Ed./Dip.in Ed./Dip.in Teach”, it is
necessary to notice the standard of degrees/diplomas/certificates, obtained by the
appellants/petitioners and the status of the Institute/University from where they have
obtained such degrees/ diplomas/certificates. It is also necessary to notice the instructions
and guidelines, as were issued from time to time by the then State of Bihar.
Recognition of Teachers Training Institute
In the year, 1980 for the first time when it came to the notice of the State of Bihar
that large number of private Primary Teachers Education Institutes, were being opened
without fulfilling the minimum requisite criteria, it promulgated Ordinances and bought
Acts viz. ‘Bihar Non-Government Physical Training College & Non-Government
Teachers Training College and Non-Government Primary Teachers Education College
(Control & Regulation) Ordinance, 1980 (Bihar Ordinance 40, 1980)’ followed by Non-
Government Primary Teachers Education College (Control & Regulation) Act 1981’,
prohibiting opening of private Primary Teachers Education Institutions without prior
permission of the State Government, Stringent penal provisions, such as, imprisonment of
three years or fine of Rs.10,000/- or both were laid down in case of violation of the legal
provisions,. Opening of such private Teachers Training Institutions without prior
permission of the State Government was made an offence.
By Letter No.10/M8-018-86 Part-5-Edn, 388 dated 12th May, 1987
Commissioner-cum-Secretary, Education Department, Govt. of Bihar, Patna, giving
reference of the aforesaid Act, 1981, informed that the Government has opened Teachers
Training Institutes so that teachers can be trained in future. It was also clarified that the
policy of the Government is not to encourage the private Teachers Training Colleges
/Institutes.
In the year, 1991 it came to the notice of the State of Bihar that in spite of the
provisions of the Act, 1981 and Letter No.1107 dated 25th November, 1987 a large
number of persons were enrolling themselves in unrecognized Teachers Training
Colleges/Institutions. In Govt. Teachers Training Colleges (Matric & Graduate)
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admissions are taken on merit but no such procedure is followed for admission in private
Teachers Training Colleges. Most of the private Teachers Training Colleges/Institutions
were not following/fulfilling the prescribed norms/standards and became a source of
earning. In such circumstances, Human Resources Development Department, Govt. of
Bihar, Patna, vide Memo No.10/Ba 3-56/80/116, Patna dated 6th March, 1991 decided to
delete the mandatory requirement of Teacher Training for the appointment of teachers
and instead decided to impart in service training in Govt. Teachers Training Colleges,
after their appointment.
The National Council for Teachers Education, was set up in 1973 by a Central
Government’s resolution, as a National Expert Body to advice Central and State
Governments in all matters, pertaining to Teachers Education. Its role has so far been
purely advisory due to which it has had very little impact on the standard of Teachers
Training Institutions in the country and on their unplanned growth. To provide statutory
powers to NCTE with an objective of determination, maintenance and co-ordination of
standards in teacher education, laying down norms and guidelines etc., and to empower
the Council to make qualitative improvement in the system of teachers education in
phasing out sub-standard institutions and sources for teacher education and with a view to
empower NCTE to grant recognition to the institutions for a teacher education and
permission to recognise institution for a new course or training in teacher education, the
Central Government brought “National Council for Teachers Education Act,
1993”(Act No.73 of 1993), but it was given effect from 1st day of July, 1995. Chapter iv
of Act, 1993 deals with recognition of Teachers Education Institution. Under Section 14
of Act, 1993, for offering or intending to offer a course or training in the Teacher
Education it was made mandatory for an institute to obtain recognition from NCTE.
Under Section 16 of the Act, affiliated body, including the Examination Body, were
prohibited from granting affiliation and to hold examination, unless the institution
concerned has obtained recognition from NCTE, as is evident from the relevant
provisions, quoted hereunder:
“14. Recognition of institutions offering course of training in teacher education; (1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant
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of recognition under this Act, make on application to the Regional Committee concerned in such form and in such manner as may be determined by regulations. Provided that an institution offering a course of training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made on application for recognition within the said period and until the disposal of the application by the Regional Committee. 2) The fee to be paid along with the application under sub-section (1) shall be such as may be prescribed. 3) On receipt of an application by the Regional Committee from any institution under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary; it shall- a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such condition as may be determined by regulation; or b) if it is of the opinion that such institution does not fulfill the requirements laid down in sub-clause(a) pass an order refusing recognition to such institution for reasons to be recorded in writing: Provided that before passing an order under sub-clause (b) the Regional Committee shall provide a reasonable opportunity to the concerned institutions for making written representation.
(4) Every order granting or refusing recognition to an institution
for a course or training in teacher education under sub-section 3 shall be published in the official gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government.
(5) Every institution in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of subsection(3).
(6) Every examining body shall, on receipt of the order under
sub-section (4)-
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(a) grant affiliation to the institution, where recognition has been granted or
(b) cancel the affiliation of the institution, where recognition has been refused.
“16. Affiliating body to grant affiliation after recognition or
permission by the Council: Notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed any:
(a) grant affiliation, whether provisional or otherwise, to any institution: or
(b) hold examination, whether provisional or otherwise, for a
course or training conducted by a recognized institution. Unless the institution concerned has obtained recognition from the
Regional Committee concerned under section 14 or permission for a course or training under section 15.”
In excise of power, conferred by Clause (d)(i) of Sub-section(2) of Section 32 read
with Section 12(d) of the Act,1993, the NCTE framed regulation, known as “National
Council for Teachers Education (Determination of Minimum qualifications for Recruitment
of Teachers in School) Regulations, 2001” (hereinafter to be referred as ‘Regulation, 2001’),
published in the Gazette of India vide Notification No.238 of September 4, 2001,
whereunder, qualification for recruitment of teachers in Educational Institutions was laid
down, relevant portion of which is quoted hereunder:
First Schedule to the National Council for Teacher Education Determination of Qualifications for Recruitment of Teachers)
Regulations 2001
LEVEL MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATION
1. Elementary a. Primary
i. Senior Secondary School certificate of Intermediate or its equivalent; and ii. Diploma or certificate in basic teachers’ training of a duration of not less than two years. OR Bachelor of Elementary Education (B.El.Ed) i. Senior Secondary School certificate of Intermediate or its equivalent; and ii. Diploma or certificate in elementary teachers’ training of a duration of not less than two years. OR
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b. Upper Primary (Middle School Section)
Bachelor of elementary Education (B.El.Ed) OR Graduate with Bachelor of Education (B.Ed) or its equivalent
Note: 1. For appointment of teachers for primary classes, basic teachers’ training
programme of 2 years’ duration is required. B.Ed. is not a substitute for basic teacher’s training programme.
2. Some of the States are having basic teacher’s training courses of one year duration only, while in some other States students passing secondary level examination are admitted to primary level teacher training courses. Such States may, by 2005, conduct basic teachers’ training programmes of a duration of not less than two years with admission being open to Senior Secondary/Intermediate pass candidates. In the meantime, candidates who have undergone basic teachers’ training courses of one year duration or were admitted to such training programmes after passing secondary level examination only may be given employment in the concerned States only.
The State of Bihar was reorganized and two successor States, namely, State of Bihar
and State of Jharkhand came into effect since 15th November, 2000. After re-organization,
the State of Jharkhand issued a Rule, known as “Jharkhand Primary School Recruitment
Rules 2002”, which came into effect from 1st July 2002. Passing of Teachers Training
Course/Degree/ Diploma/Two years Teachers Training Course was made mandatory for
appointment as Primary Teacher under Rule 2(Kha), as amended by Jharkhand Primary
School Amended Recruitment Rules, 2003, English version of which reads as follows”
“2. Definitions- xx xx xx
(Kha) “Trained” mean those persons who have got and passed the following training from a recognized Training Institution-
(i) Two years Teachers Training, or (ii) B.Ed Dip. In Ed. Dip in teach
…………………………………..
However, in special circumstances i.e in absence of requisite number or trained
candidates, provision was made to appoint untrained candidates as primary teachers
under proviso to Rule 4, English version of which is as follows:
4. Applications shall be invited by the Jharkhand Public Service Commission through publication in newspapers on the basis of district wise vacancies from the following qualifying candidates:
(Ka) who is citizen of India
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(Kha) who has passed the Matric or equivalent Examination, (Ga) who has got the training, as mentioned in Rule 2(Kha) however, in special circumstances, examination will be held separately for untrained candidates and the successful candidates will be appointed on the posts of teachers only after passing the Training Examination. Those untrained candidates will get only stipend. Which will be equal to first payment of Matric Untrained Scale, training will be managed by the State Government. After training, appointment of successful candidates will be made by the State Government on ly for three years in Matric Trained Scale on the basis of Sambida (Years of Passing)”.
In the original Jharkhand Primary Teachers Recruitment Rules, 2002, minimum
qualification of “matriculation or equivalent” was prescribed under Rule 4(Kha). The
vires of the aforesaid Rule 4(Kha) was challenged before this Court by one ‘Satya
Narayan Pandey and others (W.P (S) No. 5170 of 2002)’ which was heard along with
another case, namely, ‘Citizen cause, Ranchi Vrs. State of Jharkhand & ors. (W.P( C )
No. 6135 of 2002)’. A Division Bench of this Court, having noticed the provisions of law
and different decisios, rendered by the Supreme Court, including the case of T.M.A Pai
Foundation & ors. Vrs. State of Karnataka & ors. Reported in J.T 2002(9) SC 1, held
Rule 4(Kha) against the public interest and struck down the said provision, leaving it
open for the State to suitably recast the Rules in Public interest, as per the observation of
the Court.
In terms of the Court’s observations, standard of examination was raised by the
State from Matriculation to Graduation, on the basis of which written examination was
conducted.
The first contention, urged on behalf of the appellants, was that the reorganization
of the institution by the NCTE, prior to 1st July 1995, was not required, NCTE Act, 1993
having come into effect from 1st July 1995. The next submission on their behalf was that
the institutions, situated within the State of West Bengal, being recognized by the State of
West Bengal and the then State of Bihar having earlier appointed the candidates, who
have completed Teachers Training Course from the institutions, situated within the
territory of the State of West Bengal, should be accepted as recognized institutes.
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Learned counsel for some of the appellants also contended that the candidates
who have completed Teachers Training Course and have been granted
Degrees/Diploma/Certificates by any of the Universities, those Universities being
recognized by the University Grant Commission, can not be deprived of their
appointments.
At one stage, Mr. Gopal Subramanyam, learned Sr. Advocate, based his argument
on what he called, the intention of this Court, in raising the written test standard from
Matriculation to Graduation level, expressed in the judgment, passed in the case of Satya
Naryan Pandey & ors. (Supra). It was submitted that the State of Jharklhand, having
upgraded the standard of a competitive examination from Metric standard to Graduate
standard, as per the Courts order, intended to appoint even untrained teachers and
thereafter to send them for in-service training as prescribed under proviso to Rule 4(ga),
wherein, provision was also made to appoint untrained teachers in special circumstances.
It was submitted that the order prohibiting appointment of any untrained teacher as has
been made by the Secretary, primary & Secondary Education, Human Resource
Development Department, Govt. of Jharkhand, Ranchi, vide Latter No. 2912 dated 13th
November 2003, and letter No. 8/b-1-423/03-404 dated 16th February 2004, is contrary to
the proviso Rule 4(ga) and are ultra vires.
Counsel for the appellants placed reliance on a number of decisions and orders
passed by one or the other Court, including Patna High Court, Jharkhand High Court and
the Supreme Court, as discussed hereunder.
In the case of ‘Sri Mahendra Prasad Mehta Vrs. District Superintendent of
Education, Katihar & anr., as reported in 1985 P.L..J.R 709’ Patna High Court noticed
that the said petitioner had passed Basic Training Examination from a college of West
Bengal, known as “ Kalingpong College, West Bengal”. He had obtained one year
Teachers Training Degree. The State of Bihar took plea that the requirement was that of
two years Teachers training Course. A Division Bench of Patna High Court having
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noticed that the petitioner had already recommended for appointment and there was a
favorable recommendation, made by the District Superintendent of Education, directed
the respondents to consider the case of the said petitioner for appointment, if he had
fulfilled the requirement and was otherwise entitled to appointment. In the said case, the
main issue i.e. whether the Training Institute was recognised or not was neither decided
nor the meaning of the expression was answered. Even no finding was given whether
the said writ petitioner fulfilled the requisite qualification and was otherwise eligible for
appointment, which was left open for the respondents to decide.
Another case of ‘Arjun Kumar Mundal & ors. Vrs. State of Bihar & ors.
(C.W.J.C.NO. 1629 of 1988)’ fell for consideration before a Division Bench of Patna
High Court. By judgment and order dated 8th February 1989 a Division Bench of Patna
High Court noticed that the petitioner of the said case after matriculation had obtained
Teachers Training Certificate from an institute located in West Bengal and were included
in the panel but were not appointed. In the counter affidavit the District Superintendent of
Education took plea that the duration of training course in Bihar was of two years while
in West Bengal it was only for a period of one year and therefore the petitioners were not
trained. The Court by its order dated 8th February, 1989, following the decision of the
Court, rendered in the case of ‘Mahendra Prasad Mehta’ (supra), directed the respondents
to appoint those petitioners to the posts of Assistant Teacher. The issue “whether the
Teachers Training Institutes at West Bengal, from where those petitioners had passed,
were recognized or not,” was neither raised nor answered in the said case. One of the
persons namely ‘Jaba Pal’ who obtained training certificate from “Sister Nivedita
College, Calcutta” filed writ petition bearing C.W.J.C.No. 2584 of 1992R (Jaba Pal Vrs.
State of Bihar & ors.) She pleaded that she had completed her Teacher Training Course
from Sister Nivedita Training College Calcutta and was entitled to be treated as trained
teacher. Two judges of Ranchi Bench of Patna High Court by order dated 16th February,
1993 observed that if the Degree, Diploma or Certificate, granted by Sister Nivedita
College, Calcutta, has been recognised by the State of Bihar, as an adequate qualification
for being designated as ‘trained teacher’, there was no reason why the said petitioner
should not have the same benefit, which was extended to others. The petitioner Jaba Paul
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was allowed to represent the respondents, who in their turn, were directed to decide such
representation. The issue i.e whether ‘Sister Nivedita College, Calcutta’, is an institute,
recognized by the State Government, was neither determined by the High Court nor the
Court referred to or noticed any Institution/Guidelines, issued by the then State of Bihar,
recognizing “Sister Nivedita College, Calcutta”.
In the case of ‘Md. Halim & ors. Vrs. State of Bihar & ors. (CWJC No. 8829 of
1989)’, a Division Bench of Patna High Court disposed of the case with a direction to the
respondents to consider the case of the petitioner in the light of the direction, given in the
case of ‘Sri Mahendra Prasad Mehta (Supra)’ but has not decided the issue, as has been
raised in the present case. One Ram Binay Kumar & ors. Who also obtained Teachers
Training Certificate from private Teachers Training Institution, not having been granted
the benefit of training in the matter of recruitment to the post of Assistant Teachers in
Elementary/Primary Schools in the State of Bihar, moved up to the Supreme Court. The
Supreme Court in S.L.P (C) No. 23187 of 1996 by its order dated 5th September 1997,
having noticed the advertisement dated 8th October 1991 and the fact that although
selection for appointment to the post of Assistant Teacher was made in August 1994, no
step had been taken by the State Government for imparting training to the untrained
teacher, directed the State Government to take immediate steps to finalize the Syllabus of
training course and to complete the training of untrained teachers. The issue, as raised in
these appeals/writ petition, i.e “whether the institutes, in question, situated at Kolkata,
West Bengal are recognized or not” was neither raised nor determined by the Supreme
Court in the aforesaid cases.
To understand and appreciate the binding effect of a decision, it is necessary to
notice the facts of each case on which decisions have been given and the points of law
has been decided. One is also supposed to notice the law, applicable at times when the
judgment was rendered by the court of law and then to compare with the existing law. In
the case of ‘Union of India Vrs. Dhanwanti Devi & ors., reported in (1996)6 SCC 44’, the
Supreme Court held as follows.:
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“A decision in only and authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions, which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ration and not every observation found therein.”
Their Lordships Further observed as under:
“Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, judges are to employ an intelligent technique in the use of precedents”.
Therefore, the appellants/petitioners cannot derive any advantage of one or other
order either passed by the Patna High Court or by the Jharkhand High Court or the
Supreme Court, as referred to and discussed above in cases having facts and
circumstances.
To determine the issue it is also necessary to look into the dictionary meaning of
the word “recognized”. As per chambers Dictionary, New Edition (2000), it is “ to know
again”, “ to identify as known”, “to acknowledge the validity of a claim”, ”to
acknowledge the status“. The meaning of “recognition” is also “acknowledgement of
status”.
It is settled law that when the language of statute is clear, literal construction
must be adhered to. In case of any ambiguity, one can take help of the intention of the
Legislatures. The definition of “recognized institute” has not been laid down under rules,
2002. In the aforesaid background, I have noticed and discussed the circulars, issued by
the then State of Bihar to find out the intention of the Legislatures in the matter of
appointment of Primary Teachers. It has already been noticed that the unified State of
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Bihar was against the mushroom growth of private Teachers Training Education
Institutes, which were being opened without fulfilling the minimum requisite criteria
and were not under the control of any statutory Body/University? Board. In these
background, ordinance was promulgamated as back as in the year, 1980 known as
BIHAR ORDINANCE NO40, 1980, followed by Non- Govt. Primary Teachers
Education College (Control and Regulation) Act, 1981. by Letter No-10/m-8—018-86-
part-5-Edn. Dated 12th May, 1987, issued by the Govt. of Bihar while it was informed
that the State Government has opened Teachers Training Institutes; it was also intimated
that the policy of the Government was not to encourage the private Teachers Training
Colleges/Institutes, which were enrolling large number of candidates as their students
without holding any competitive examination and without following any procedure,
which is also evident from Memo No.10/Ba 3-56/80/116,Patna dated 6th March, 1991
issued from the Human Resources Development Department, Govt. of Bihar, Patna.
Unplanned growth of private Teachers Training Institutions without having any standard
of education was noticed by the Central government and in that background, N.C.T.E.
Act. 1993 was brought about.
Therefore, on a proper construction of expression “recognized Training Institute”
(Manyata prapt Prakshikshan Sansthan), as occurring in rule 2 (kha) of Rules, 2002, I
hold that the expression “ “recognized Training Institute” means a Training Institute,
recognized or established either by State Government of Union of India or Statutory
Bodies, such as, N.C.T.E., U.G.C. etc., Organizations, maintained and controlled by
either State government or Central Government or a Training Institute, recognized or
affiliated by a University or a Board for imparting Teachers Training Course.
The National council for Teachers Education (Determination of Qualification for
Recruitment of Teachers). Regulation, 2001 came into force on September 4, 2001 and
since then Degree/Diploma or Certificate in Basic Training for tow years, Bachelor of
elementary Education has been prescribed as mandatory qualification for appointment of
teachers in primary schools. No untrained person can be appointed, as any such
appointment would would offend the provisions of N.C.T.E. Act, 1993 and Regulations,
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2001, framed thereunder. Further, when trained successful candidates are available, the
question of exercising power of relaxation under proviso to Rule 4(ga) for appointment of
untrained teachers in Primary Schools does not arise. Therefore, the aforesaid
submission, as made on behalf of the appellants for relaxation of qualification and
appointment of untrained teachers, cannot be accepted.
In the facts and circumstances, having regard to the guidelines, issued by the
State from time to time, and the provisions of the Ordinances, Acts and Rules, as
discussed above, in my considered opinion:-
(a) “ Recognized Institute” means an institution recognized or established by State Government or Union Government or by Statutory Bodies/ Organizations, maintained and controlled by either State Government or Central Government or recognized University or affiliated by a recognized University for imparting education (training herein);
(b) After 1st July, 1995 or at best for another period of six months i.e.
after 1st January, 1996 nobody, offering a course or training in Teachers Education, can run the institute without prior recognition by the N.C.T.E. There being bar to run such institute under sub-section (1) to Section 14 of the N.C.T.E. Act, 1993.
(c) Even if a Teachers Training Institute is affiliated to a University,
recognized by the University Grant Commission, no Teachers Training Examination can be held by the University whether provisional or otherwise, for the students of such Teachers Training College after 1st January, 1996, if the institute is nor recognized by the N.C.T.E., in view of clause (b) to section 16 of the N.C.T.E.,. Act, 1993;
(d) a person, who as completed and obtained a
degree/Diploma/Certificate in teachers Training Course prior to 31st January, 1996, i.e. six months after promulgamation of the N.C.T.E, .Act, 1993 from an institute, recognized or established by the State government or Union Government or by Statutory Bodies/Organizations, maintained and controlled by either State Government or Central Government or recognized University or affiliated by a recognized University for imparting Teachers Training Education, is eligible for appointment to the post of Primary Teachers, if otherwise found fit and
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(e) since 4th September, 2001 i.e. the date N.C.T.E (Determination of qualification & Recruitment of Teachers) Regulations, 2001 came into force, no untrained person can be appointed to the post of Primary teacher.
Institutes, situated at kolkata (West Bengal):
The appellants of LPA Nos’ 246 of 2004, 301 of 2004, 271 of 2004, 308 of 2004,
445 of 2004, 236 of 2004, 269 of 2004, 235 of 2004, 548 of 2004, 518 of 2004, 300 of
2004, 178 of 2004 and 273 of 2004 claim to have passed “ Sr, Teachers Training
Course” from different institutions, located at Kolkata, namely,
i) Sister Nivedita College, Kolkata
ii) Oxford College of Education, Kolkata
iii) Devid Hare College of Correspondence, Kolkata
iv) Dr. B.C.Roy College of Education, Kolkata
v) D.C. College of Engineering College, Kolkata
vi) St. Thomas College of Correspondence, Kolkata
vii) ALL India Education Society, Kolkata
viii) All India Correspondence Coaching Society, Kolkata
ix) Montessary teacher Training College, Kolkata
Most of the aforesaid colleges claim to be affiliated to one All India Education
Society, Kolkata (AIES for short), which itself claim to be Training Institute And a
society, registered under the Societies Registration Act.
Immediately after examination, at the time of recommendation of successful
candidates, the J.P.S.C. doubted the genuineness of Training Certificates, submitted by a
number of candidates, including the appellants, whose results were kept pending, which
was informed by the Incharge Secretary, J.P.S.C. vide Letter No.1/ Exam.- JPSC-
99/2003-132/Sa.Ko. dated 13th November, 2003. In view of the aforesaid doubt, the
secretary, Primary, Secondary & Higher Education, Govt. of Jharkhand, issued
clarifications vide Letter No. 8/B1- 199/03-2912 dated 13th November, 2003, letter
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No.8/B1-199/03-3139 dated 4th September. 2003 and Letter No. 8/B1-423/03/03-404
dated 16th February, 2004.
In these cases, though no specific stand has been taken by the parties, relating to
genuineness of one or other Institution, situated at Kolkata, West Bengal, with a
curiosity, to find out the status of the Institutes, I have gone through the certificates, as
enclosed by the appellants with their writ petitions/memo of appeals, issued by one or
other Institutions. On bare perusal of those certificates, the following facts emerged.
(i) Formate of all the certificates, granted by the Institutions, such as, (1) Sister
Nivedita College, Kolkata; (2) Oxford College of Education, Kolkata; (3) Devid Hare
College of Correspondence, Kolkata; (4) Dr.B.C. roy College of Education, Kolkata; (5)
D.C. College and D.C. Engineering College, Kolkata (6) St. Thomas College, Kolkata;
(7) All Education Society, Kolkata; (8) All India Correspondence Coaching Society,
Kolkata and (9) Montassary Teacher Training College, Kolkata, are same.
(ii) The signature of Principal(s) of almost all the Training Institutes, as aforesaid,
is same. That means, one person has signed as Principal of almost all the aforesaid nine
Institutions, situated at Kolkata, West Bengal.
(iii) The signature of Examiner, as is appearing in the Certificates, granted by 4 to
5 Institutions, is also common.
(iv) Even the address of some of the Institutions are common; for example- the
addresses of Sister Nivedita College, Kolkata, All India Correspondence Society, Kolkata
and Dr. B.C.Roy college of Education, Kolkata, are same i.e. “740 and 741” lake town,
block-A, Kolkata- 700089. (see enclosure, attached to W.P.(s) No. 1294 of 2004, L.P.A.
No 246 of 2004, L.P.A No. 269 of 2004, L.P.A .No 548 of 2004 and L.P.A. No.300 of
2004.
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The addresses of All India Education Society, Kolkata, Devid Hare College, of Correspondence, Kolkata are also same i.e. 736, lake town, Block-a, Kolkata .
(v) From circular No-041 dated 1st October, 2002 (page 64 of Paper book in
L.P.A. No-236 of 2004) it appears that Dr. B.C. Roy College of Education. Kolkata, is on
paper, which is stated to have been amalgamated with oxford College of Education,
kolkata. Therefore, notice has been given for general information that the candidate, who
gets himself/herself admitted at Dr. B.C.Roy College of Education on or after
10.10.2002,his/her name will be transferred and enrolled at Oxford College of Education,
kolkata but mark sheet and other certificates will be issued under the name and style of
dr. B.C.Roy College of Education, Kolkata.
(vi) From the senior Teacher Training Course Certificates, granted by Devid Hare
College of correspondence, Kolkata, as enclosed with L.P.A. No. 236 of 2004, it appears
that the Teachers Training Course was for a period of six months. If the particulars of one
of the students, namely, Anand Gopal (page92 of L.P.A. No, 236 of 2004) are
considered, it will appear that the date of admission, as has been shown, is 30th January,
1995 and the date of examination, as has been shown, is 25th August, 1995 i.e. after 6 to 7
months of admission. At column-11 with regard to affiliation of the Institution, it is
mentioned that the institute is independent, having no tie up with the NCTE.
The aforesaid facts clearly raise doubt with regard to sr. Teachers Training Course
Certificate, granted by the aforesaid nine Institutions, as referred to above, situated at
Kolkata, West Bengal, and there being nothing on the record to suggest that any of the
institutions is either recognized by any of the State Governments, such as, State of West
Bengal or state or Bihar or State of Jharkhand or Central Governments or Statutory
Body/Institution or affiliated with any University, those, who have obtained such
Certificates of Sr. Teachers Training Course can not claim their appointment in terms of
Recruitment Rules, 2002, read with teachers Training qualification, as laid down in the
advertisement, published by the J.P.S.C. in August, 2002.
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Further, the course of Sr. Teachers Training Being of 6 to 7 months duration, it
can not be called equivalent to B.Ed./ Dip. in Ed./Dip in Teach or the other training
certificate. As prescribed under rule 2 (kha) of Rules, 2002.
In view of the aforesaid findings, the appellants of L.P.A Nos. 246 of 2004,
301;2004, 271 of 2004, 308 of 2004, 236 of 2004, 269 of 2004, 235 of 2004, 548 of
2004, 518 of 2004, 300 of 2004, 289 of 2004 and 273 of 2004, having obtained training
Certificates from the aforesaid nine institutions, situated at Kolkata, West Bengal, can not
be granted the relief, prayed for by them.
Institutions, situated in the State of Uttar Pradesh: Some of the appellants/petitioners have submitted certificates, obtained from the
following Institutions, situated with the State of Uttar Pradesh:
(i) Hindi sahitya Sammelan, Prayog, Allahabad.
(ii) Jamia Urdu, Aligarh.
(iii) Gandhi Hindi Vidyapeeth, Prayog, allahabad.
(iv) Rastriya Pratrachar Sansthan, Khanpur.
(A) Hindi sahitya Sammelan, Prayag, Allahabad.
Appellants of L.P.A. Nos. 306 of 2004, 382 of 2004, and 298 of 2004 have passed “
Sahikha Bisharad” Examination from Hindi Sahitya Sammelan, Prayog, Allahabad.
According to them, Hindi sahitya Sammelan, Proyog, Allahabad is a University and the
qualification of “shiksha sivharad” is equivalent to B.Ed., / Trained Graduate. Their
counsel has relied on different orders, Issued by the State Government from time to time
in their support, as discussed hereunder:
Hindi Sahitya Sammelan is an institute of national importance, established under
the “ the Hindi Sahitya Sammelan Act, 1962” (hereinafter to be referred as ‘The Act,
1962.) It has been constituted to perform the functions, as envisaged under section 6 of
the Act, 1962, such as:
(i) to promote the spread of Hindi language:
(ii) To work for the promotion advancement and development of Hindi literature in India and foreign countries.
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(iii) To work for promotion development and advancement of Devnagari
script
(iv) To arrange for holding the examinations through the midium of Hindi language and so confer degrees/ diplomas and other academic distinctions.
(v) To establish and maintain school. College and other institutions for
instruction in Hindi language and Hindi literature and also to affiliate schools, colleges and other institutions for its examinations:
(vi) To affiliate institutions. Having their object “The promotion of Hindi
language and Hindi literature:
(vii) To award honorary Degrees and other academic distinctions to persons, who may have rendered distinguished services to the course of Hindi etc.,
Government of India from its Ministry of Human Affairs, New Delhi, issued
Notification No.P26/4/.52 C.C (Annexure–1/1 to LPA No, 298 of 2004), giving reference
to an earlier Notification No.26/4/52 CC dated 20th September, 1952, issued in
consultation with the Union Public Service Commission informed the Public in general
that in case of degree/diploma, awarded by the Universities in India, which are
incorporated by one act of Central or Part of A or B state Legislation of India, no formal
order, recognizing such degrees/ diplomas need be issued by the governments. Such
degree should be recognized automatically for the purposes of employment.
A list of Universities and other comparable Institutions of Higher Education was
issued, wherein, the name of “Hindi Sahitya Sammelan,Prayag, Allahabad (U.P.) has
been shown at serial no-2 of the list of “Universities” and as one of the Institutions of
National importance.
In view of The aforesaid provisions and other provisions, made under the Hindi
Sahitya Sammelan Act, 1962, there can not be any doubt that “Hindi Sahitya Sammelan,
Prayag, Allahabad’s is a statutory Body, a University of national importance.
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In the present case, the only question arises “whether the decree/certificate of
‘Shiksha Visharad” is equivalent to B.Ed. or any other Teachers Training course, as
prescribed under Rule 2 (kha) of Rules, 2002.
From letter No. BHI/vi/100-94/36224 dated 3rd September, 1994, issued from the
director of Secondary Education (Orissa), Bhuwaneshwar, it appears that the
Diplomas/Degrees, awarded by ‘Kendriya Hindi Sansthan, Agra’ and “Hindi Sahitya
Sammelan, Allahabad’ were approved as equivalent for the purposes of employment in
Orissa Government Service, as quoted hereunder.
------------------------------------------------------------------------------------------------------------ (A) Examination of Kendriya Hindi Equivalent to Sansthan, Agra -------------------------------------------------------------------------------------------------------- (i) Hindi Shiksha Praveen Teachers Training Certificate Diploma (ii) Hindi Shiksha Nishant M.Ed. degree of an Indian University (iii) Hindi Shiksha Parangat B.T./B.ED., degree from an Indian University. -------------------------------------------------------------------------------------------------------- (B) Examination of Hindi Sahitya Equivalent to Sammelan, Allahabad, -------------------------------------------------------------------------------------------------------- (i) Prathama H.S.E (ii) Madhyama I.A. (iii) Sahitya Ratna B.A (iv) Shiksha Visharad B.T.C./C.T. -------------------------------------------------------------------------------------------------------
From the letter aforesaid, it appears that the Govt. of Orissa while treated “Hindi
Shiksha Parangat” equivalent to B.T./B.ED., degree and “Hindi Shiksha Praveen”
Equivalent to Teachers Training Certificate, “Shiksha Visharad, Certificate, granted by
the “Hindi Sahitya Sammelan, Allahabad” has not been treated equivalent to B.T/B.ED.,
Degree rather equivalent to B.T.C/ C.T., which is not the qualification laid down under
Rule 2(kha) of Rules 2002.
Counsel for the appellants placed reliance on a letter No.12/3116-17/2000-152
dated 29th March 2000, issued by the Deputy Director (Secondary Education), Bihar,
Patna to suggest that the Govt. of Bihar has also accepted the certificate of “Shiksha
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Visharad’ granted by Hindi Sahitya Sammelan, Allahabad, equivalent to B.ED. In the
said Letter, giving reference to a query, made by the Secretary, School Examination
Board, Patna, vide letter no,40 dated 15th January, 2000, it has been informed that the
Govt, of Bihar by Resolution No, 394 dated 11th April, 1983 has accepted that the
degrees “Shiksha Visharad’ and Shiksha shashtri’ granted by the Hindi Sahitya
Sammelan, Allahabad and Sampurnand Sanskrit Shiksha Mahavidyalaya, Varanasi
respectively are equivalent to B.Ed course. But on perusal of original Resolution No.394
dated 11th April, 1993, issued from the Education Department, Government of Bihar, I
find that the Deputy Director (Secondary Education), Bihar, Patna having distorted the
fact had sent wrong information to the Secretary, School Examination Board, Patna by
the aforesaid letter dated 29th March 2000.
The Government of Bihar through its Education Department while issued
Resolution No. 394 dated 11th April 1983 the subject was shown as ‘Regarding
recognition of examination, conducted by Sampurnand Sanskrit Vishwavidyalaya,
Varanasi Utter Pradesh. The following degrees/diplomas/certificates, issued from
Samprunand Sanskrit Vishwavidyalaya Varanasi Utter Pradesh has been treated
equivalent to the degree/diploma/certificate as mentioned against their names.:
Degree/Diploma Equivalent to
1. Purv Madhayama (With English) Matric
2. Uttar Madhyama (with English) Intermediate
3. Shashtri (with English) B.A
4. Acharya M.A
5. Shiksha Shashtri B.Ed
The aforesaid Resolution No. 394 dated 11th April 1983 issued from Education
Department of the Govt. of Bihar does not deal with any of the Degree/Diploma granted
by the examination, conducted by the Hindi Sahitya Sammelan, Allahabad and thereby
the appellants cannot derive any advantage of Letter No.152 dated 29th March 2000.
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The State of Bihar time to time issued different letters/circulars from its Education
Department/Human Resources Development Department, showing equivalent of a
Degree/Diploma/Certificate, granted by different institutions. By Resolution No.
VI/M7018/63E-374 dated 29th March 1963 equivalency of various Sanskrit degrees and
diplomas, awarded by the former Bihar Sanskrit Association and Kameshwar Singh
Darbhanga Sanskrit Vishwavidyalaya has been shown with those degrees and diplomas,
awarded by the Bihar School Examination Board and other Universities in the State. By
order No. 6/R1-203/64Ni 10275 dated 16th August 1965 the degrees granted after 1947
from National Universities, such as, Kashi Vidhyapith, Varanasi, Gurukul Kangri,
Mandar Vidyapith, Mandar, Bhagalpur Hindi Vidyapith, Deoghar, Hindi
Vishwavidyalaya, Allahabad, Prayag Mahila Vidyapith, Allahabad; Gujrat Vidyapith,
Ahmadabad; Rashtrabhasha Prachar; Assam Rashtrabhasha Prachar Samiti, Guahati;
Hindi Prachar Sabha, Hyderabad; Bombay Hindi Vidyapith, Bombay; Maharashtra
Bhasha Sabha, Puna; Manipur Hindi Parishad, Imphal; Akhil Bhartiya Hindi Parishad,
Agra; Maisoor Hindi Prachar Parishad, Bangalore and Dakshin Bharat Hindi Prachar
Sabha, Madras, were shown to be equivalent to one or other degree/diploma/certificate as
being awarded by School Examination Board and other Universities in the State. Similar
circulars including Letter No. 7/M 605/73 (Part-21) Edn. 4927 dated 29th September 1974
order No. 8/R2/203/73 Ka. 12860 dated 21st July 1975 issued from personal Department
Letter No. I/B 9-III/76 Edn. 1926 dated 24th August 1976 and other order No. 8/R1-
1010/76-Ka-4236 Patna dated 11th March 1977 issued from Personal Department and
Memo No. 2204/Patna dated 6th May 1988 were also issued from time to time. None of
the aforesaid Circulars/Orders/Letters recognize the examination of Shiksha Visharad
conducted by the Hindi Sahitya Sammelan, Allahabad, as equivalent to B.Ed or any other
Teachers Training Degree/Diploma/Certificate, as prescribed under Rule 2(Kha) of Rules
2002 and thereby, the appellants of L.P.A No. 306 of 2004, 382 of 2004 and 298 of 2004
can not be held to have obtained any degree/Diploma Certificate in Teachers training as
prescribed under Rule 2(Kha) of Rules 2002 and as such, being not eligible, cannot claim
appointment in pursuance of the advertisement published by the J.P.S.C in August 2002.
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The appellants have also not made it clear as to whether the Institute from where
they have completed Teachers Training Course is a recognized institute and/or affiliated
to Hindi Sahitya Sammelan or not. In absence of any such averment, relating to the issue
from where they completed their Teachers Training Course, no finding can be given that
they obtained degree/diploma from a recognized institute.
(B) Zamia Urdu, Aligarh
The appellants of L.P.A. No. 594 of 2004 have passed the examination of
“Moallim-E-Urdu” from an institute known as Jamia Urdu, Aligrah. According to them,
the “Moallim-E-Urdu” is equivalent to the Urdu Teachers Training Course. They have
relied on certain circulars issued from on or other State.
The Jharkhand Public Service Commission, Ranchi has also raised doubt with
regard to the institute, in question, namely, Zamia Urdu, Aligarh. From the records, it is
not clear as to whether the institute, namely, Zamia Urdu, Aligarh, is recognized by any
State Government or Central Government or any Statutory Authority/Body or is affiliated
to any one or the other University/Statutory Board. A letter of the Director of Education,
Delhi bearing no. DE-3(21) Estt.III-85 D/796 dated 28th April 1986 issued to the
Register, Zamia Urdu, Aligarh, suggests that the degree of “Moallim-E-Urdu” is
considered equivalent to B.Ed by the Director of education, Delhi Administration, Delhi.
Another letter No.C/3-4-96/3/F, Bhopal dated 19th March, 1986, issued from the General
Administrative Department of Madhya Pradesh Government suggests that “Moallim-E-
Urdu” has been treated as a qualification for teaching Urdu students up to the Secondary
standard but it has not been treated equivalent to any Teachers Training course. There is
nothing on the record to suggest that the Govt. of Bihar or any other Govt. has recognized
the institute, namely Zamia Urdu, Aliharh, for the purpose of imparting Teachers
Training Course.
Admittedly, the appellant Kalamat Ali Ansari has passed “Moallim –E-Urdu”
examination from Zamia Urdu, Aligarh held in February 2001 (Examination of the year
2000). By the said date the provision of National Council for Teachers Education Act
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1993, having come into effect (from 1st July 1995) the appellant Kalamt Ali Ansari can
not claim appointment to the post, in question Zamia Urdu, Aligarh not having been
recognized by the National Council for Teachers Education. The appellant Kalamat Ali
Anasari of L.P.A No. 594 of 2004 therefore cannot be granted the relief as sought for.
( C) Gandhi Hindi Vidyaoith, Parayag, Allahabad
The appellants of L.P.A. No. 597 of 2004 claim to have passed Teachers Training
Examination from Gandhi Hindi Vidhyapith, Prayag, Allahabad. According to them, it is
equivalent to B.Ed and has been recognised by the Govt. Of Bihar vide Letter No. 12/Ma-
028/91-62 dated 30th January 1993 issued from Human Resource Department
Development, Patna. Though such statement has been made copy of letter aforesaid has
not been enclosed to verify the genuinity. In the compendium of circulars/rules/Acts of
primary Teachers i.e Bihar Rajya Prarambhik Shikaha Vidhi Ebam Vidhan, published by
Malhotra Brothers, Patna (2nd Edition, 2002) neither any such reference of such letter no
12/Ma-028/91-62 dated 30th January 1993, has been made nor copy of the same has been
printed however, I have some doubt relating to the aforesaid statement, made by the
appellants in their representation for the following reasons:
It came to the notice of the University Grant Commission that a number of fake
Universities and Institutions have been opened, which are awarding
degrees/diplomas/other certificates. A list of fake Universities, as on May 1, 2000 ws
published by the University Grant Commission, which was also circulated by the
Secretary, Human Resources Development Department (Primary Education) Govt. of
Jharkhand, Ranchi vide Memo No.3477/Ranchi dated 30th December, 2003 (Annexure-5
to W.P.S No.4298 of 2004). At serial no.6 of the list of fake Universities, the institutions,
in question i.e “Gandhi Hindi” Vidyapith, Prayag, Allahabad (UP) has been shown and
declared to be a fake University by the University Grant Commission. That apart, there is
nothing on the record to suggest that so called Teachers Training Examination, passed by
the appellants of L.P.A. No.597 of 2004 is equivalent to B.Ed. degree, as prescribed
under Rule 2(kha) of Rules, 2002. Therefore, the appellants of L.P.A No. 597 of 2004
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cannot be given appointment in pursuance to the advertisement, published by the J.P.S.C
in August 2002 they not being qualified.
(D) Rashtriya Patrachar Sansthan, Kanpur
Both the petitioners of W.P.(S) No. 4298 of 2004 claim to have passed ‘Shiksha
Alankar’ from Rashtriya Patrachar Sansthan, Kanpur in May, 1994 and May, 1991
respectively. They have enclosed the copies of the marksheet as Annexures-6 & 6/1.
According to them, the qualification ‘Shiksha Alankar’ is equivalent to ‘Bachelor of
Education’ (B.Ed.), as shown and printed in their mark sheets. However, no pleading has
been made that the Institution, in question, namely, ‘Rashtriya Patrachar Sansthan,
Kanpur has been recognized by either any Statutory Body, such as, University or Board
or by any Government. Counsel for the petitioners has relied on a copy of the order,
passed by Lucknow Bench of Allahabad High Court in W.P.No.5496(S) of 2003 (Ram
pyare Pankaj & ors.Vrs. State of U.P. & ors.) to show that the degree/diploma, awarded
by Rashtriya Patrachar Sansthan, Kanpur, has been recognized by the Government of
U.P. vide letter dated 6th September, 2000, as also by the Director of Samaj Kalyan, Govt.
of U.P. by letter dated 25th June, 2002. The orders were issued in pursuance of the order,
passed in another Writ Petition No.1208(S) of 1995.
Even if such stand taken by the petitioner is accepted, the petitioner cannot derive
any advantage of the same, they having passed ‘Shiksha Alankar’ from Rashtriya
Patrachar Sansthan, Kanpur’ in May 1994 and May 1991 respectively. When the
Institution i.e. ‘Rashtriya Patrachar Sansthan, Kanpur’ was not recognised by the Govt. of
U.P. Further, N.C.T.E. Act, 1993 having come into effect from 1st July 1995, it was not
open to the Govt. of U.P. to recognise any Training Institute in the year, 2000/2001,
without prior permission of the National Council for Teachers Education. Therefore,
though the Degree/Diploma awarded by ‘Rashtriya Patrachar Sansthan, Kanpur’ can be
recognized as a degree/diploma of any academic distinction, it cannot be recognized as a
degree/diploma of Teachers Training Course.
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Admittedly, the Govt. of Bihar and the Govt of Jharkhand have neither recognised
‘Rashtriya Patrachar Shansthan, Kanpur’ nor it has been recognized by the National
Council for Teachers Education. Therefore, no relief can be granted to them.
Training Colleges/Institutions, Situated in the States of Bihar & Jharkhand (a) Kameshwar Singh Darbhanga Sanskrit University, Darbhanga
Eight appellants of L.P.A.No. 322 of 2004 have passed ‘Acharya Examination’
from ‘Kameshwar Singh Darbhanga Sanskrit University, Darbhanga’. According to them
the degree of ‘Acharya’ is equivalent to ‘B.Ed degree’. Counsel for the appellants has
relied on different circulars, issued from time to time by then unified State of Bihar.
Kameshwar Singh Darbhanga Sanskrit University, Darbhanga, was initially
constituted under ‘Kameshwar Singh Darbhanga Sanskrit Vishvidyalaya Act 1960 (Bihar
Act of 1960). Subsequently Bihar State Universities Act 1976 covered almost all the
Universities, situated within the territory of the State of Bihar, expect Patna University,
Rajendra Agriculture University and Birsa Agriculture University for which separate
Acts were passed. Under Section 3 of the ‘Bihar State Universities Act, 1976’, “the
establishment and incorporation of the Universities” within the territory of the then State
of Bihar have been shown, which includes ‘Kameshwar Singh Darbhanga Sanskrit
University’, having the headquarters at Darbhanga and the jurisdiction over whole of the
then State of Bihar, including the successor State of Bihar and Jharkhand. Therefore,
there should not be any dispute relating to recognition of any Degree/Diploma/Certificate
granted by Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. The only
question arises “whether the Sanskrit degree ‘Acharya’ is equivalent to B.Ed or any other
‘Teachers Training Course’ as prescribed under rule 2(kha) of Rules 2002”.
The respondent State of Jharkhand has taken up plea that the Sanskrit degree of
‘Acharya’ is equivalent to ‘M.A’ in Sanskrit for the purpose of appointment of Sanskrit
Teacher. However according to the appellants, it is a degree in Teachers Training Course.
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For determination of the issue, one should notice the decision of the Govt. of
Bihar as was circulated vide Resolution No.VI/M7018/63E374 dated 29th March 1963
issued from Education Department, Govt. of Bihar. While considering the question of
equivalence of various Sanskrit Degree and Diplomas awarded by the former Bihar
Sanskrit Association and Kameshwar Darbhanga Sanskrit University, Darbhanga with
those of Degree and Diplomas awarded by the Bihar School Examination Board and
other Universities in the State of Bihar, after careful consideration of the matter, it will
appear that the state of Bihar, in consultation with the Public Service Commission, Bihar
had been pleased to decide the equivalence of various Sanskrit degrees as detailed
below.:
(a) For the purpose of appointment to the Public Service
Name of degrees and diplomas of which deemed equivalent ------------------------------------------------------------------
Name of Sanskrit degrees, For Sanskrit teaching For other appointments Diplomas and certificates and inspection of Sanskrit
Institutions only.
NAVIN SYSTEM
Pratham(ii) Middle Middle
Uttar Madhyam(ii) Matriculation or S.S under Matric
(without English) Examination
Uttar Madhyam(ii) Matriculation or S.S Matriculation or S.S
(without English) Examination Examination. Pre-university or Higher Secondary
Shastri(with English) B.A I.A or B.A (part-I)
Acharya(without English) M.A(Sanskrit) I.A or B.A(Part-I)
At Shastri stage
Acharya (with English) M.A (Sanskrit) B.A
At Shatri stage
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PARACHIN SYSTEM Name of the degrees and diplomas of which deemed equivalent
--------------------------------------------------------------------- Name of Sanskrit Degrees For Sanskrit teaching For other appointments Diplomas and certificates & inspection of Sanskrit
Institutions only
Prathma Middle Middle
Madhyam Matriculation or S.S Under Matriculate
Examination
Shastri I.A or B.A (Part-I) Matriculation or S.S Examination
Acharya B.A (Hons) Sanskrit I.A
Acharya M.A(Sanskrit) B.A (With pass in English or Navin Shastri or equivalent standard)
It was reiterated by the letter, issued by the Director Primary Education-Cum-
Joint Secretary, Education Department, Govt. of Bihar, vide letter No. 7/M605/73(Part-
21) Edn. 4927 Dated 25th September 1974 (Reference of Resolution No. VI/M7018/63E-
374 dated 29th March 1963 and letter no. 7/M605/73(Part-21) Edn. 4927 dated 25th
September 1974, has been taken from pages nos.922 and 931 of the Bihar Rajya
Prarambhik Shiksha Vidhi Ebam Vidhan, published by Malhotra Brothers, Patna (2nd
Edition, 2002).
From the decision aforesaid it is clear that the degree of ‘Acharya’ can at best be
treated an “M.A” Degree in Sanskrit or “B.A” for appointment of Sanskrit Teacher, but it
cannot be treated to be a Degree in ‘Teachers Training Course’ for the purpose of Rule
2(Kha) of Rules, 2002.
Council for the appellants relied on different Resolutions/Circulars, issued by the
State of Bihar. Reliance was also placed on Resolution dated 24th October 1982,
whereby, it was informed that the Degree ‘Acharya’ [Sahitya (Literature or Vyakaran/
Grammar) or Fazil (Arbi or Farsi)) are also qualifications for appointment of primary
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Teachers. In the Note below the direction, it was mentioned that a candidate who has
obtained Acharya/Fazil from a recognized University or Govt. recognized Training
Institute will be given preference. But this resolution cannot be relied upon for
determination of the issue of equivalence i.e “whether the Degree ‘Acharya’ is equivalent
to ‘Teachers Training Degree/B.Ed’ or not”. The other letter no. 6066 dated 24th
November 1986 issued by the Director (Secondary education)-Cum-Joint Secretary,
Education Department, Govt. of Bihar, Patna, relates to grant of Selection Grade scale to
the teachers. By the said letter, it was informed that the State Govt. has placed the
teachers, holding ;Acharya’/’Fazil’ Degree in the category of Trained Teachers for the
purpose of seniority and grant of scale of pay but that does not mean that the Govt. of
Bihar has treated ‘Acharya’ or ‘Fazil’ Degree equivalent to a Degree in ‘Teachers
Training Course/B.Ed’. Resolution No. II/P1-05/68E-1439 dated 4th May 1968 and
Resolution no. 2/B-90319/73/Edn.-237 dated 20th January 1976 both issued from the
Education Department, Govt. of Bihar, relate to grant of scale of pay. If the teachers,
holding qualification of ‘Acharya’ or ‘Fazil’ have been allowed the scale of pay as is
allowed to the Trained Teachers that does not mean that the degree of ‘Acharya’ or
‘Fazil’ has been treated equivalent to “Teachers Training Course/B.Ed Degree”.
Thus, the appellants of L.P.A No. 322 of 2004 cannot be treated to be holding any
Teachers Training Degree/Diploma nor their degree of ‘Acharya’ can be treated to be
equivalent to the degree of B.Ed. and thereby they cannot be granted any relief for
appointment in question.
(b) Laxmi Devi Sarraf Adarsh Sanskrit Mahavidyalaya, Deoghar
These three applicants of L.P.A No. 344 of 2002 claim to have passed ‘Acharya
Examination’ from ‘Laxmi Devi Sarraf Adarsh Sanskrit Mahavidyalaya, Deoghar’.
According to them, the Degree of ‘Acharya’ obtained from ‘Laxmi Devi Sarraf Adarsh
Sanskrit Mahavidyalaya, Deogarh’, is equivalent to ‘Trained Graduate/B.Ed.’.
However, there is nothing on the record to suggest that said ‘Laxmi Devi Sarraf
Adarsh Sanskrit Mahavidyalaya, Deogarh’ is a College, affiliated with any University, or
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is a constituent College of any University. It is not the case of the appellants that ‘Laxmi
Devi Sarraf Adarsh Sanakrit Mahavidyalaya, Deoghar’ is a Govt. college or recognized
by the Govt. of Bihar or the Central Govt. Therefore, it cannot be held that ‘Laxmi Devi
Sarraf Adarsh Mahavidyalaya, Deoghar’, is a recognized institute for the purpose of Rule
2(Kha) of Rules 2002.
So far as degree ‘Acharya’ is concerned, it has already been discussed and held
above that the Degree of ‘Acharya’ is not a ‘Teachers Training Degree/B.Ed. Degree’
and thereby it cannot be treated to be equivalent to ‘Trained Graduate’. As such, no relief
can be granted to the appellants of L.P.A No. 344 of 2004.
Indira Gandhi National Open University (IGNOU), New Delhi
These three appellants of L.P.A No. 240 of 2004 have passed ‘Certificate in
Guidance’ (C.I.G) from ‘Indira Gandhi National Open University, New Delhi’ (‘IGNOU
for short). According to them, the ‘Certificate of Guidance’ is equivalent to ‘Dip.
In.Ed/Dip.in Teach’. The appellants have enclosed the relevant portion of IGNOU
prospectus for admission in ‘Certificate in Guidance’ which reads as follows:
SCHEMATA OF C.I.G 1. LIST OF COURSES OFFERED ES 101 : UNDERSTANDING THE ELEMENTRY SCHOOL CHILD ES 102 : FACILITATING GROWTH AND DEVELOPMENT ES 103 : GUIDING CHILDERN’S LEARNING ES 104 : GUIDING SOCIO-EMOTIONAL DEVELOPMENT OF CHILDREN
2. TO QUALITY FOR CIG, A STUDENT SHOULD HAVE SUCESSFULLY COMPLETED ALL THE FOUR COURSES. 3. RESULT IS DECLARED IN BETTER GRADES ON A FIVE POINT SCALE
4. LETTER GRADE AND GRADE POINTS FOR PURPOSES OF COMPUTATIONS ARE AS UNDER : LETTER GRADE GRADE POINT A-EXCELLENT 5 B-VERY GOOD 4 C-GOOD 3 D-SATISFACTORY 2 E-UNSATISFACTORY 1
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5. FOR COURSE GRADING PURPOSE, 30% WEIGHTAGE IS GIVEN TO CONTINOUS EVALUATION AND 70% TO THE TERM END EXAMINATION.
6. ON THE BASIS OF AVERAGE GRADE POINT SECURED, THE FINAL GRADE IS AWARDED ACCORDING TO THE FOLLOWING RANGE: AVERAGE GRADE POINT RANGE GRADE 4.50 & ABOVE A 3.50 – 4.49 B 2.50 – 3.49 C 1.50 – 2.49 D 0 – 1.49 E
7. IN ORDER TO SUCESSFULLY COMPLETE A COURSE THE CANDIDATE MUST OBTAIN AT LEAST GRADE ‘D’ IN EACH OF THE CONTINOUS EVALUATION AND IN THE TERM-END EXAMINATION HOWEVER, OVERALL AVERAGE GRADE OF CONTINOUS EVALUATION & TERM EXAMINATION SHOULD BE AT LEAST 40%.
From the aforesaid prospectus, it is clear that the ‘Certificate in Guidance’ is not a
Degree, equivalent to ‘Trained Graduate or B.Ed. Degree’. It has already been noticed
that Teachers Training, such as, “two years Primary Teachers Training or B.Ed. or Dip.
in Ed.” from recognized “Training Colleges/institute” has been prescribed under Rule
2(Kha) of Rules 2002, for appointment of ‘Primary Teachers’. The ‘Certificate in
Guidance’, as referred to above, cannot be held to be ‘Two Years Primary Training
Certificate’ nor can it be held equivalent to ‘B.Ed or Dip.in Ed.’. So far as IGNOU is
concerned, it being a recognized University, the case of the appellants cannot be rejected
on the ground that they have not passed from a recognized institute. However, they being
not qualified in terms with Rule 2(Kha) of Rules 2002, these appellants cannot be granted
the relief, as sought for.
5. The Supreme Court has taken serious view in allowing the students of
unrecognized institutions to appear at public examinations. In the case of State of
Maharastra Vrs. Vikash Saheb Rao Roundley & ors. Reported in AIR 1992 SC 1926, the
Supreme Court has observed as follows:
“…… In short teachers need to be endowed and energized with needed potential to serve the needs of the society. The qualitative training colleges or schools would inspire and motivate them into action to the benefit of the student. For equipping such trainees students in a school or a college, all facilities and equipments are absolutely necessary and institutions bereft thereof have no place to exit nor entitled to recognition. In that
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behalf compliance of the statutory requirements is insisted upon. Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education. The directions to the appellants to disobey the law is subversive of the rule of law, a breeding ground for corruption and feeding source for indiscipline. The High Court, therefore, committed manifest error in law, in exercising its prerogative power conferred under Art. 226 of the constitution, directing the appellants to permit the students to appear for the examination etc.”
6. Taking into consideration the facts and circumstances of the case, the statutory
Rules 2002 and the decisions, rendered by the Supreme Court, as discussed above, in my
view no ground is made out to interfere with the orders, passed by the Secretary, Human
Resources Development Department (Primary Education) Govt, of Jharkhand, Ranchi, as
affirmed by the learned Single Judge or to grant any relief to the appellants / petitioners.
The appellants/ Petitioners, having no requisite qualification of Teachers Training as per
Rule 2(kh) of Rules, 2002, many of them having obtained training qualification from
unrecognized institutions and one institution even found fake by the UGC and the degree
/diploma / certificate obtained in other cases are not being equivalent to Trained
Graduate/ Teachers Training, no relief can be granted to any of them. There being no
merit all the appeals and the analogous writ petition are hereby dismissed. However, in
the facts and circumstances, there shall be no order as to cost.
***
326
JHARKHAND HIGH COURT AT RANCHI WPS No. 2628/2005
D.D. 19.7.2005 Hon’ble Mr. Justice M.Y.Eqbal
Subodh Kr.Jha ... Petitioner Vs. State of Jharkhand & Ors. ... Respondents Age Relaxation:
Recruitment to the post of Additional Public Prosecutor - Upper age limit 35
years for G.M. category – Petitioner claimed age relaxation – Writ Petition allowed following earlier decision in Writ Petition No.289/2003 wherein 2 years relaxation was given considering the fact that after the new State of Jharkhand came into existence in November 2000 the present recruitment was held for the first time in 2005.
Case referred:
2000 (3) PLJR 231 – Dr. Rabindra Kumar Singh & Ors. Vs. State of Bihar & Ors.
ORDER
In this writ application the petitioner has challenged the advertisement no.
03/2004-05 so far it relates to cut off date for appearing in the examination for
appointment on the post of Additional Public Prosecutor.
2. The petitioner is an Advocate presently practicing in Dumka Civil Court. The
Jharkhand Public Service Commission (in short ‘The Commission’), vide its
advertisement no.03/2004-05 invited applications for appointment on the post of
Additional Public Prosecutor. One of the conditions put in the advertisement is that the
upper age limit as on 31.1.2005 should not exceed 35 years for the general category
candidates.
3. Mr. Mazumdar, learned counsel appearing on behalf of the petitioner submitted
that although the State of Jharkhand came into existence in November 2000, no
examination for filling up the post of Public Prosecutor was held and for the first time the
impugned advertisement has been issued for filling up the post of Public Prosecutor and,
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therefore relaxation in age should be given to those candidates who have completed 35
years of age before the cut off date i.e 31.5.2005.
4. Mr. S. Pipriwal, learned counsel appearing on behalf of the Commission, on other
hand, submitted that for the first time on 18.8.2004 the respondent-State sent a petition to
the Commission for starting the recruitment process for appointment of A.P.Ps in the
State of Jharkhand. In the said requisition respondent no.3, the Secretary, department of
Law & Justice, Govt. of Jharkhand, did not give any information regarding minimum and
maximum age limit or any other relevant information. It is stated that as per Rule 35 of
the prosecution Manual, 2002 the minimum age limit prescribed for a candidate is 18
years whereas fixation of upper age limit is to be decided by the Government time to
time.
5. There is no dispute that by virtue of Bihar Re-organization Act, 2000 the state of
Jharkhand came into existence on 14th November 2000. Admittedly, since the creation of
the State of Jharkhand no examination was held for selection of A.P.Ps and it is for the
first time in 2005 respondents have come with an advertisement. The candidates who
were eligible for applying to the said post and now have crossed 35 years of age, have
certainly been deprived of the said post because of the inaction of the respondents. In
such circumstances, relaxation in age is to be given to those candidates who have crossed
their maximum age limit.
6. Mr. Piprawal, learned counsel appearing on behalf of the Commission has
produced before me a copy of order dated 22.1.2003 passed in WPS No. 289/2003 and
submitted that in similar circumstances a writ petition was dismissed by this Court. From
perusal of the order it appears that the Commission had issued advertisement for
Combined Competitive Examination for appointment in Jharkhand Civil Service. The
writ petition prayed for a direction upon the respondents to give relaxation of three years
in the upper age limit of 35 years for General Categories. The learned Single Judge of
this court dismissed the writ petition holding that the power to relax age for appointment
or the power to fix the maximum age for appointment or the power to fix cut off date for
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appointment is vested with the Appointing Authority/State of Jharkhand however, Mr.
Pipriwal, learned counsel, very fairly submitted that after dismissal of the said writ
petition the respondent-State gave two years relaxation in age for appearing in the
Combined Competitive Examination.
7. A similar question arose before the Patna High Court in the case of “Dr. Rabindra
Kumar Singh & Vs. Sate of Bihar & ors” 2000(3) PLJR 231. In that case a dispute arose
relating to fixation of upper age limit of 35 years on the cut off date i.e 1.10.98 for
making application for the post of Medical Officer in Bihar Health Services. The
grievances of the writ petitioners was that during last 9 years after 1989, no recruitment
for the basic grade post of Medical Officer in the State of Bihar Health Service was made
with the result that many candidates became over-age. Considering various decisions of
the Supreme Court their Lordship of the Patna High Court held that petitioners are
entitled to get the benefits in the relaxation of age.
8. For the reason aforesaid this writ application is allowed and the respondents are
directed to allow the petitioners to fill up the application form and to appear in the
selection process for the post of Additional Public Prosecutor. Since petitioner has
approached this Court, it is clarified that this order shall be confined to the writ
petitioners only.
***
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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P (S) No. 3353 of 2005
D.D. 23.9.2005 Hon’ble The Acting Chief Justice S.J.Mukhopadhaya
Kabita Kumari ... Petitioner Vs. State of Jharkhand & Ors. ... Respondents
Examination – Candidature rejected as qualification certificate not produced: The candidature of the applicant who appeared for competitive examination for appointment to the post of Primary School Teachers was rejected on the ground that she failed to produce B.Ed. certificate – It was found that the Institute from which she completed the training course was not recognised by N.C.T.E. – Hence writ petition dismissed.
ORDER
This application has been preferred by the petitioner for direction on the
respondents to evaluate the answer sheet for recruitment to the post of Primary School
Teachers.
According to the petitioner, she appeared in the competitive examination held by
the Jarkhand Public Service Commission for appointment to the post of Primary School,
teachers. After examination, she was expelled on the ground that she has not produced
B.Ed Certificate.
Learned counsel for the J.P.S.C on instructions, submitted that, in fact, the
petitioner failed in the written test and was not successful. He produced a Letter No. 793
dated 3rd September 2003, issued by the Deputy Commissioner, Bokaro. By the said
letter, the Deputy Commissioner informed the in charge Secretary of the J.P.S.C Ranchi
that the examination was conducted peacefully. The petitioner was not expelled form the
examination.
Apart from the aforesaid statement made by the counsel for the J.P.S.C from the
Admit Card enclosed by the petitioner, at page-28, it appears that the petitioner
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completed the Teachers Training Course from one Dr. Zakir Hussain Teachers Training
College, Laheriasarai. She passed the examination some time in August 2002.
There is nothing on the record to show that Dr. Zakir Hussain Teachers Training
College, Leheriasarai was recognized by the National Council for Teachers Education
(NCTE). In such circumstances, no relief can be granted.
There being no merit, the writ petition is dismissed.
***
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IN THE HIGH OURT OF JHARKHAND, RANCHI W.P (S) No. 5882 of 2005
D.D. 16.12.2005 Hon’ble Mr. Justice S.J.Mukhopadhaya
Prabhash Chandra Gupta ... Petitioner Vs. State of Jharkhand & Ors. ... Respondents Eligibility:
The petitioner challenged the advertisement calling for applications for the Limited Competitive Examination for appointment to the post of Deputy Collector from persons having experience as Class-III service in the State – High Court holding that the petitioner has no locus standi dismissed the writ petition. Held: The petitioner who has less than 5 years of experience has no locus standi to challenge the advertisement on the ground that 10 years of experience is required for appointment.
ORDER
The petitioner has challenged the Advertisement no. 5/05, whereby and where
under while applications have been called for appearing in the Limited Competitive
Examination for appointment to the post of Deputy Collector, it has been mentioned that
a person, who has five years of experience as Class – III service in the State of Jharkhand
is eligible to apply.
According to counsel for the petitioner, the prescribed period of five years of
experience has no nexus with the object sought to be achieved by the respondents. It will
exclude all the fresh appointees of the State of Jharkhand. However, such submission
cannot be accepted as it is for the State Government to determine the minimum
experience for the appointment against one or other post.
The question as to whether ten or five years of experience is required for
appointment to the post of Deputy Collector cannot be determined in the present case, as
the petitioner having less than five years of experience, has got no locus stand to
challenge the advertisement on the ground that ten years of experience is required for
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appointment. However, the authorities before filling up the said post will ensure as to
what is the minimum experience prescribed under the rule.
This writ petition is dismissed, with the aforesaid observations.
***
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KARNATAKA PUBLIC SERVICE
COMMISSION
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE Writ Petition Nos.12548-12589/2002 & connected cases
D.D. 11.10.2002
The Hon’ble Mr. Justice R.V.Raveendran &
The Hon’ble Mr. Justice K.L.Manjunath Karnataka Public Service Commission ... Petitioner Vs. Linganna Kuchabal & Others ... Respondents Examination – Examination malpractice: Respondents-candidates for Gazetted Probationers 1998 Examination approached KAT seeking revaluation of their compulsory Kannada/English language papers – They also alleged that some successful candidates indulged in examination malpractice in collusion with and connivance of Examiners/officials of the Commission – KAT allowed the applications and quashed the valuation and directed fresh valuation of answer scripts in all subjects – Aggrieved by the same the Commission and some successful candidates filed these writ petitions before the High Court – After examining the case in detail and in view of in-house enquiry report of the Sub Committee of the Commission identifying the candidates who indulged in examination malpractice and proposing to take action against them, set aside the order of KAT directing fresh valuation and upheld valuation in respect of 10 subjects (2 papers each) and directed moderation/scaling in respect of 20 subjects (2 papers each). Held:
Where a large number of answer scripts are to be evaluated, obviously they cannot be evaluated by a single examiner. The answer scripts relating to the same subject are therefore distributed to several Examiners, for evaluation. When there is more than one or when there are several Examiners for evaluation of the answer scripts relating to a subject, usually two problems arise:
(i) Each Examiner will have his own perception as to what is the right answer. In fact some Examiners may not even know what exactly is the correct answer, leading to incorrect evaluation.
(ii) Each examiner will have his own method of awarding marks. While
some may be highly conservative or ‘stingy’ in awarding marks, some may be highly liberal or ‘generous’ in awarding marks. There may also be different levels of ‘stinginess’ or ‘generousness’ among the Examiners.
To iron out the natural creases arising in evaluation, it is necessary to adopt certain procedural safeguards to ensue that no candidate is unjustly benefited or placed at a
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disadvantage, vis-a-vis the other candidates and to ensure that the evaluation is uniform and consistent. Further held: P.S.C. should have such number of examiners as are required with reference to number of answer scripts to be evaluated and number of days allotted for evaluation. It should be remembered that more number of evaluators means more chances of variation and need for more moderation. Ideally the number of examiners should be kept to the minimum, so that the chances of variation in evaluation is also the minimum. In future PSC may consider fixing a ratio between the number of answer scripts and the Examiners for evaluation and avoid unnecessarily large number of examiners being appointed in some subjects. Cases referred: 1. AIR 1974 SC 1155 – GM, South Central Railway, Secunderanad Vs. A.V.R. Siddhanti 2. AIR 1985 SC 167 – Proboth Verma vs. State of Uttar Pradesh 3. AIR1984 SC 1543 – Maharashtra State Board of Secondary & Higher Secondary Education & Ors. Vs. Paritosh Bhupesh Kurmarsheth 4. 2000 (10) SCC 196 – Ex-Constable Chotelal Vs. Union of India 5. 2002 (4) SCC 503 – Kendriya Vidyalaya Sangthan Vs. Ajaykumar Das
ORDER
Karnataka Public Service Commission [KPSC] issued a notification dated
9.3.1998 inviting applications for recruitment to the post of Gazetted Probationers [Group
A and B posts], in pursuance of a request of the State Government made on 4-2-1998 to
select 415 candidates for Group-A and Group-B posts. In response to said notification,
KPSC received 85598 applications. On scrutiny 79130 candidates were found eligible
for preliminary examination. The mode of selection is governed by the Karnataka
Recruitment of Gazetted Probationers [Appointment by Competitive Examination] Rules,
1997 [for short, the ‘Recruitment Rules’], made by the Government of Karnataka in
exercise of powers under Section 3(1) read with Section 8 of the Karnataka State Civil
Services Act, 1978.
2. Rule 4 of the Recruitment Rule requires that a combined competitive
examination for recruitment to one or more of the services or group of posts (mentioned
in Schedule I to the Rules) shall be held every year, subject to availability of vacancies, in
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the manner set out in Schedule II to the Rules. As per the scheme of examination
contained in Schedule II to the Rules, the competitive examination comprises two stages
viz., (i) preliminary examination [objective type] for selection of candidates for the main
examination; and (ii) main examination [written examination and personality test] for
selection of candidates to the posts, to be held as follows:
A. PRELIMINARY EXAINATION: The preliminary examination shall consist two papers of objective type (multiple choice).
Paper I General Studies 150 marks
Paper II One Subject to be selected from the list of optional subjects
300 marks
Total 450 marks
Note 1 to 3: xxxx (not relevant) Note 4: The number of candidates to be admitted to the main examination shall be 20 times the vacancies notified for recruitment in the order of merit, on the basis of the performance in the preliminary examination subject to accommodating in the same ratio adequate number of candidates belonging to the categories of scheduled castes, scheduled tribes and each of the other backward classes. B. MAIN EXAMINATION: The main examination shall consist of written examinations and Personality Test: Written Examination: Paper I Kannada 150 marks
Paper II English 150 marks
Paper III & IV
General Studies 300 marks for each paper (total 600 marks)
Paper V, VI, VII & VIII
Two subjects to be selected from the list of optional subjects. Each subject will have two papers.
300 marks for each paper (total 1200 marks)
Total marks for written examination
2100 marks
Note 1: The marks obtained in compulsory papers, i.e., in Kannada and in English shall be of qualifying nature. For qualifying in these papers, a minimum of 30% in each paper and 35% aggregate is prescribed. The marks obtained in these two papers shall not be considered for
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determining the merit for selection. Candidates who do not secure the prescribed marks in the qualifying papers namely Kannada and English shall not be eligible for the personality test and selection. Note 2: The examination shall be of conventional type. Note 3: The question papers shall be set both in Kannada and in English. A candidate may answer a paper either entirely in Kannada or in English. Note 4: The standard of the main examination [except paper-I Kannada and Paper-II English] shall be that of degree level. The standard of paper I Kannada and paper II English shall be that of first language Kannada and first language English respectively at SSLC level.
C. PERSONALITY TEST: The Commission shall call for a personality test as far as may be, five times the number of candidates as there are vacancies in the services in Group ‘A’ and Group ‘B’ respectively, of schedule I in the order of merit on the basis of the result of the main examination, subject to calling candidates belonging to schedule castes, schedule tribes and other backward classes in the same ratio to the extent vacancies reserved for them. Personality test shall carry a maximum of 200 marks. The object of the personality test is to assess the personal suitability of the candidate for the service for which he is a candidate............
3. The preliminary examination was held on 30.8.1998 and 56228 candidates
appeared for the said examination. The results of preliminary examination were
announced by KPSC on 16-11-1998 and 9857 candidates were declared eligible for the
main examination, keeping in view the prescribed ration of 1:20 and accommodating the
same ratio of number of candidates belonging to SC, ST and OB classes. The main
examination was held between 9-4-1999 and 3-5-1999. On 12-1-2000, the results of the
main examination were announced and 2397 candidates were qualified for personality
test (interview) keeping in view the ratio of 1:5 and accommodating the same ratio of
number of candidates belonging to SC, ST and OB classes. 1209 candidates who had
failed in the compulsory papers [Kannada and English] were not considered for ranking.
The personality test which was scheduled to be held between 19-6-2000 and 31-7-2000
could not be held due to certain administrative reasons. Subsequently, the government
withdrew the vacancies on 14-8-2000, but again referred back the vacancies to KPSC in
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June 2001. Therefore the personality tests were held in only July and August, 2001 and a
provisional list of selected candidates was published on 28-9-2001.
4. In the meanwhile, in February, 2000, eight candidates who had appeared for the
main (Written) Examination, but had failed in the compulsory papers of Kannada and/or
English filed WP Nos.5332-39/2000 alleging serious irregularities in evaluation of
answer script in regard to the main examination and sought the following reliefs: a) a
direction for revaluation of their answer scripts in compulsory subjects; b) a direction to
State Government to appoint an independent body to inquire into the manner in which the
examinations had been conducted and to direct KPSC to get the entire papers evaluated
again through an independent body under the supervision of the court and in the event of
the court holding that any mal-practice has taken place, then to direct KPSC to hold fresh
examinations; and c) direct the KPSC to declare the marks obtained by in the optional
and general studies papers. Another candidate who failed in the compulsory subjects
filed WP No.7022 of 2000 seeking a direction to KPSC to revalue his answer script in
compulsory English paper.
5. In the said writ petitions, the said candidates raised the following among other
contentions:
a) Having regard to their high qualifications, it was inconceivable that they failed to secure 30 marks in SSLC level Kannada and English compulsory papers.
b) There were serious irregularities in valuation as per newspaper reports. In
particular one Rameshwarappa (working as a Deputy Director of Food & Civil Supplies) and his family members had secured I, II and IV ranks in the written examination. All of them had taken the examination in the same room and had selected the same optional subjects and their papers had been evaluated by the same examiner; The said Rameshwarappa was a close friend of the then Secretary of KPSC (A.K.Monnappa).
c) A senior employee of KPSC, whose son had appeared for the examination,
had participated in the Examination process and evaluation, thereby giving cause for a serious doubt about the fairness in valuation.
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d) Key answers [model answers] prepared by KPSC, which had to be kept confidential until the declaration of results, were leaked out by KPSC even before the main examination;
e) The then Secretary of KPSC and his personal assistant who were in charge
of the answer scripts and who had knowledge of the code numbers given to the answer scripts, got some of the answer scripts in which they were interested, evaluated with the help of a particular examiner and also manipulated the computer entries;
f) Several candidates who had passed the compulsory subjects had secured
very low marks in the optional subjects, which imply that the compulsory papers were not properly valued; and for example one Sheryar Khan, who did not have any knowledge in Kannada had been declared as having passed Kannada paper.
g) Some of the examiners selected to evaluate the papers were blood relatives
of the candidates, which is contrary to KPSC Rules.
6. KPSC resisted the said writ petitions contending that the examinations had been
conducted in accordance with the Recruitment Rules. It denied any irregularity either in
conducting the examinations or in the valuation of answer scripts. It pointed out that all
the writ petitioners had not failed in Kannada and English papers; that three had failed in
English and one had failed in Kannada papers and others had passed the compulsory
papers, but did not become eligible for personality test as they did not secure sufficient
marks to be called for personality test. KPSC set out the procedure adopted for
evaluation of answer scripts in its statement of objections which is extracted below:
“It is submitted that the examination work consists of the following: 1. Pre-valuation work, 2. Post valuation work. The examination process is conducted in secrecy and confidentiality. It is inevitable for the Secretary to be in charge of all the details, because of administration of the Commission is done under his supervision and he is the executive Head of the Office of the Commission. He is a responsible Officer who belongs to I.A.S. cadre. Panels of Examiners are sent by various Universities at the behest of the Commission and selection of the Examiners is effected from those panels. The qualifications and status of the Examiners are prescribed. The Examiners were highly qualified and were either Professors, Selection grade Lecturers and Senior Scale Lecturers and were well trained and proficient in their respective subjects. Examiner’s consent for examination work, his/her undertaking to the effect that he/she is not a candidate for the examination in question, that no close relatives of his/her have appeared for the said examination viz.,
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Son/daughter/brother/sister/spouse/son-in-law/daughter-in-law etc., that he/she has not been debarred from any examinership and such other necessary undertakings pertaining to the examination were sought and obtained and after such undertakings was obtained, the said person was considered for appointment as Examiner. It is submitted that, a day or two prior to the actual commencement of the valuation work, the concerned Chief and Head Examiners jointly used to prepare the model answers which model answer intrinsically contained the scheme of valuation. On the forenoon of the day of commencement of the valuation, copies of the model answers so prepared used to be circulated among the valuers. The scheme of valuation and model answer was to be discussed by Chief/Head/Additional Examiners and a consensus used to be arrived at in respect of scheme of valuation and model answer. This resulted in removing any arbitrariness and angularities in the valuation, besides in adopting uniform standards for awarding marks by all the concerned evaluators. These Examiners and Head Examiners who were all well trained and proficient in their respective subjects, had also indicated such guidelines as deemed fit by mutual discussion for the guidance of the valuers to ensure a fair and objective valuation. It is emphasised that this central valuation involved also face to face discussion among the Chief Examiners, Head Examiners and Examiners so that any arbitrariness and angularities are eliminated. Thus, the model answers will be only prepared for the above purpose, long after the examinations are over and a day or two prior to the Central Valuation takes place. It is submitted that the examination was completed by 2nd May, 1999. The valuation work was commenced by 17-5-1999 and was completed by 18-6-1999. The answer scripts for the purpose of valuation were coded under the direct supervision of the Secretary of the Commission. There are 8 papers. In other words, there are 8 answer scripts of a candidate. Each of the answer script of a candidate bears a unique and exclusive code number. Thus, each candidate will have 8 different code numbers. The answer scripts were subject wise bundled after randomising and put in plastic covers each bundle having ten scripts and sent to the place of Central Valuation. There, the Chief Examiners, Head Examiners and Additional Examiners (Valuers) used to be present. The answer scripts used to be handed over to the Chief Examiners, who in turn used to give packets to the answer scripts to the Examiners, who used to value it. From the Commission side, there used to be one Assistant Secretary permanently at the place of Central Valuation with clerical and other assistance to hand over the scripts to the Chief Examiners and most of the time the Secretary used to visit the place of Central Valuation to ensure that the work of valuation was smooth and devoid of any problems. Security had also been provided to ensure and to see that no unauthorised
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persons had access to that place. After the valuation, the scripts valued, used to be returned to the Commission along with the marks sheet. The answer scripts and marks sheet used to be sealed separately in the central valuation venue itself and the answer books stores in the central place in the Commission, with police security. The sealed marks sheet cover used to be in the safe custody of the Secretary.
7. When the said writ petitions came up for consideration before a learned Single
Judge, it was submitted that the issues raised in the writ petitions were of considerable
importance and even though the petitioners in the writ petitions had made individual
grievances in regard to valuation of their answer scripts, several other infirmities which
had been pointed out related to public interest and therefore it was desirable to refer the
matter to a Division Bench. The learned Single Judge, therefore, by a considered and
detailed order dated 21-3-2000 referred the said writ petitions to a Division Bench.
8. In the meanwhile, 24 other candidates also approached this Court with a similar
prayer. Hence, those petitions were also clubbed with WP No.5332-39 and 7022 of 2000.
Before the Division Bench, KPSC pointed out that as recruitment related to State service,
and as the Karnataka Administrative Tribunal was functional by appointment of
necessary members, the writ petitions were not maintainable. The Division Bench
accepted the said contention and transferred 33 writ petitions to the Tribunal with a
direction to treat the writ petitions as Applications and adjudicate the same in accordance
with law. Accordingly, the tribunal registered the transferred writ petitions as
applications and assigned numbers as Application Nos.7901 to 7908, 7928 to 7933, 7909,
7911 to 7918, 7920 to 7927, 8772 and 8893 of 2001. Nine other candidates directly
approached the Tribunal in Application Nos.8087, 8274, 8275, 8442 to 8446 and 8502 of
2001. All the 42 petitions were heard and disposed of together by the Tribunal.
9. During the course of arguments, the Tribunal directed KPSC to produce (i) the
answer scripts of Rameshwarappa and two of his relatives who had secured top ranks, as
also the answer scripts of Sheryar Khan and one Virupaksha whose father was a Deputy
Secretary of KPSC; (ii) model answers; and (iii) the list of Examiners, Head Examiners
and Chief Examiners, who had evaluate the answer scripts and tabulated the statements,
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indicating who had valued the answer scripts of applicants and others. All these were
produced by KPS and considered by the Tribunal. The arguments were concluded on
2.11.2001 and the Tribunal reserved the applications for orders. On 19-11-2001 the
Tribunal issued a direction to KPSC to maintain status quo until the disposal of the
Applications. The Tribunal also suggested to the learned counsel for KPSC that KPSC
may produce the marks assigned to the top 50 candidates in each category (by the
Examiner, Head Examiner and Chief Examiner) and posted the matters to 21-11-2001.
KPSC sought certain clarification in regard to the suggestion of the Tribunal for
production documents. Thereafter the learned counsel for KPSC sought time to consult
the Commission and make submissions. The matter was adjourned to 22-11-2001 and
again to 28-11-2001. On 28-11-2001, the learned counsel for KPSC submitted that the
Secretary of the Commission was away on training at Mussouri for a period of six to
eight weeks, and the keys of the almirah in which the records were kept were with him
and therefore the information could not be produced immediately; and that even
otherwise, KPSC was unwilling to give the information sought, having regard to the
scope of the proceedings before the Tribunal. KPSC also filed the following memo:
After hearing the parties this Hon’ble Tribunal suggested the KPSC to cause production of marks of the top 50 candidates in each category along with the marks awarded if any by the Head Examiner and Chief Examiner. This suggestion has been considered by the KPSC with all seriousness it deserves as it was coming from this Hon’ble Tribunal.
However it is not possible nor is it legally incumbent upon KPSC to produce the information sought on account of several administrative reasons and having regard to the limited scope of judicial review in these matters, where allegations made have remained as mere allegations and not proved or substantiated in manner known to law.
The above memo may be taken on record.
10. Thereafter, the tribunal by order dated 6-2-2002 allowed the applications, being of
the view that the awarding of marks to candidates was not fair and therefore the merit list
was vitiated. The Tribunal issued the following directions:
In the instant case, we are of the view that the valuation of the answer scripts cannot be regarded as fair and consequently has to be held to be arbitrary. Having regard to the circumstances of the case, no distinction
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could be made between answer scripts which are validly valued and those that are not validly valued. The entire valuation of the answer scripts would have, therefore, to be held as arbitrary requiring fresh valuation. The KPSC shall have to get the answer scripts freshly valued by appointing Examiners who are in no way interested in the candidates taking the examination. The appointment of Examiners shall be done only after verifying their declaration that none of their relatives specified in the format of the declaration is a candidate in this examination. It would be necessary for the KPSC to erase all the code numbers that are given to the answer scripts and to give fresh code numbers both to the compulsory subjects as well as to the optional subjects and to have them valued on the basis of the norms for valuation already formulated or to have a fresh norm formulated for the Examiners. The KPSC shall have all the answer scripts which have fetched 60% and above marks valued by a set of two Examiners. If there should be any difference between the dual examiners exceeding 5% of the marks, the papers shall be referred to 3rd Examiner. The acceptability of the valuation by the Examiners, as aforesaid shall be left to the discretion of the KPSC, but that must be amongst the top three Examiners referred to above. In respect of the results announced on fresh valuation as aforesaid, the KPSC shall permit revaluation of answer scripts of all those candidates who seek such revaluation within a time to be specified from the date of publication of the results and on such payment as may be determined by it. On publication of the results pursuant to this order, the KPSC shall be obliged to furnish to all the candidates marks obtained by them in all the papers attempted by them irrespective of the fact as to whether they have passed in the compulsory papers or not.
11. Feeling aggrieved, KPSC has filed WP No.12548-589 of 2002 and sought
quashing of the order passed by the Tribunal Respondents 1 to 42 were the applicants
before the Tribunal and 43rd respondent is the State Government. Several selected
candidates, whose names appear in the provisional select list published by the KPSC,
have also filed writ petitions challenging the order of Tribunal, in WP Nos.8702-11,
9085-91, 9250-55, 13310-16, 13464-69, 134747-84 and 21218 of 2002. As they involve
the same questions, we have heard them together.
11.1) Before us, the following grounds are urged by KPSC:
a) As there is no provision for revaluation, no candidate had a right to seek revaluation an therefore the Tribunal ought not to have directed revaluation;
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b) The only irregularity established before the Tribunal was in regard to Rameshwarappa and two of his relatives namely B.S.Nagaraj and B.S.Triveni, as there was a large difference between the marks awarded by the Examiner and the Chief Examiner in some papers. There is no finding by the Tribunal in regard to any other irregularity in the conduct of examination or valuation. In the absence of any material to show violation of any Rules relating to examinations, or mala fides on the part of KPSC, the Tribunal ought to have restricted the direction for revaluation only in respect of the answer scripts of Rameshwarappa, B.S.Nagaraj and B.S.Triveni. There was no material or basis to annul the entire valuation process or to direct a wholesale revaluation;
c) The Tribunal was not justified in having drawn an adverse inference for
non-production of the marks assigned by the Examiner, Head Examiner and the Chief Examiner in the case of top fifty candidates in each category, in the absence of any application by the applicants before the Tribunal calling for production of such documents or in the absence of any order or direction by the Tribunal to produce such documents. An oral suggestion by the Tribunal, after the conclusion of the arguments cannot be equated to a direction and therefore the non-production of said documents cannot lead to any adverse inference.
d) The Tribunal exceeded its jurisdiction in directing the manner in which the
fresh evaluation should be done that too in a manner contrary to the provisions of the Recruitment Rules and the guidelines of KPSC.
11.2) In addition to the said contentions, the selected candidates have urged the
following contentions:
e) The Tribunal has no jurisdiction to entertain a public interest litigation. In service matters, an applicant can seek relief only for himself and cannot seek relief in general. The Tribunal has proceeded with the matter and issued directions as if the matter was a public interest litigation, which is impermissible.
f) KPSC had announced the main examination results on 12.1.2000, showing 2397 candidates had qualified for personality test. The writ petitions (which were converted as Applications before the tribunal), were all filed subsequent to 12-1-2000. Therefore the writ petitions by the unsuccessful candidates without impleading the 2397 candidates who qualified for the personality test, were liable to be rejected for non-joinder of necessary parties. Further, before the conclusion of arguments before the Tribunal, the provisional list of selected candidates was also published on 28.9.2001. At all events, the Applications before the Tribunal could have proceeded with this Applications after 28.9.2001, only by impleading the selected candidates. As the selection candidates were not impleaded, the
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Applications ought to have been rejected for non-joinder of necessary parties.
h) Even if there is any non-observance or violation of the guidelines issued by KPSC in regard to valuation, it will not furnish any cause of action to any of the unsuccessful candidates, as such guidelines do not have any statutory force. The selection process can be interfered with only if there is any violation of Article 14 or 16 of the Constitution of India or statutory provisions.
12. When these petitions came up for consideration of the interim prayer on
19.3.2002, learned counsel for the KPSC voluntarily produced the marks obtained by the
top 50 candidates in each of the categories with an abstract, as also the particulars of
moderation (that is marks increased/decreased by the Head Examiner Chief Examiners)
in regard to all candidates who became eligible for personality test. After hearing the
rival contentions in regard to interim prayer, we directed KPSC to produce the list of
candidates in whose cases the variation in marks was plus or minus 20 or above [out of
300 marks] in a subject and also to furnish the particulars of cases where the Chief
Examiners had done random revaluation with particulars of difference in marks. In
response to it, on 21-3-2002 KPSC made available for the perusal of the court, statements
showing the subjectwise marks awarded by the Examiner, Head Examiner and Chief
Examiner where the difference was plus or minus 20 or above with sujectwise abstracts.
13. On 27-3-2002, KPSC offered to redo the moderation and circulated its proposals
to all counsel. However, as the service of the respondents was not complete, and as the
matter was being heard only with reference to the interim prayer, the said memo was not
filed. After service, during the course of final arguments, on 22.7.2002, KPSC filed the
said memo dated 27-3-2002 offering to redo the moderation, without prejudice to its
contentions. We extract below the said memo in is entirety.
MEMO
The Commission has placed before this Hon’ble Court subjectwise abstract of total number of answer scripts valued, number of answer scripts moderated by the Head Examiner and/or Chief Examiner and cases where the marks awarded in moderation is plus or minus 20 or more vis-a-vis the marks awarded by the Examiner. The total number of cases where the variation is plus or minus 20 or more has been identified as 661.
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Keeping in mind anxieties expressed and apprehensions stated during the hearing of the writ petitions and the suggestions that feel from the Bench of this Hon’ble Court, the Commission has examined the entire issue in the light of the scheme laid down by the Commission regarding valuation of the answer scripts. The endeavour of the Commission has been to find a solution which would be in line with the scheme of examination prescribed by the Commission.
Keeping the above objective in mind and in deference to the suggestions that emerged during the hearing of the writ petitions, the Commission is making the following offer:
(a) Wherever the random review done by the Head Examiner is less than 10 percent of the answer scripts evaluated by any examiner in any subject, the short fall would be made up examinerwise and subjectwise by random review of answer scripts to the extent of shortfall. While doing so, it will be ensured that random sampling shall not be less than 5 percent of the top level answer scripts.
(b) The Commission has always been of the view that review referred to at
para 3 of the scheme of valuation is not analogous to scaling technique. It has been understood by the Commission as review of marks of particulars answer scripts taken up for random review by the Head Examiner. However, during the hearing it has been expressed hat review should be understood as scaling technique. The Commission has considered the suggestion and is of the opinion that on the basis of random review of answer scripts done in respect of answer scripts evaluated by each examiner average variation shall be arrived at. Wherever the average variation is less than plus or minus 20 general review of the marks awarded need not be done. However, where the average difference is plus or minus 20 or more, the marks awarded by such examiner shall be increased or decreased by that average in respect of each of the answer scripts evaluated by that examiner. In case the average variation is less than plus or minus 20, but variation in respect of individual answer scripts is plus or minus 20 or more those answer scripts would be subjected to third valuation.
(c) As a result of random review if in respect of any candidate the change in
marks is too generous or too adverse to the candidate, the Commission would refer such paper for third valuation.
The Secretary who was holding the post at the time when central valuation was conducted in respect of examination in question is no longer with the Commission. The Commission would ensure that disinterested staff of the Commission headed by the Secretary will supervise and
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monitor the entire process of review and revaluation that would be undertaken as set out above.
14. It was also submitted on behalf of KPSC that an in-house inquiry has been held
by a Three Member Sub-Committee of the Commission in regard to the alleged
irregularities, and a report had been submitted to the effect that the result of ten
candidates are vitiated by malpractice and recommending the cancellation of their results
after following the necessary procedures and further recommending certain other steps.
It was observed that it will also initiate action in terms of the said report. A copy of the
said report was also made available for the perusal of the court.
15. The contesting respondents (applicants before the Tribunal) were not however
willing for restricting the revaluation/moderation, in the manner suggested by KPSC in
its Memo filed on 22-7-2002. We will therefore consider the several points in issue in
these petitions.
Whether the Applications are liable to be rejected for non-joinder of selected candidates as parties: 16. The selected candidates contend that they were necessary parties to the
proceedings and their selection cannot be challenged by the non-selected candidates,
without impleading them as parties. It is submitted that as they were not impleaded as
parties and as no allegation or irregularity has been made against them [selected
candidates], their selection should be not interfered with. Reliance is placed on the
decision of the Supreme Court in PROBOTH VERMA vs STATE OF UTTAR
PRADESH [AIR 1985 SC 167], wherein it is held that where large number of persons
who are to be vitally affected by the writ petitions are not impleaded as respondents, the
petitions cannot be proceeded with, without requiring that such persons or at least some
of them in a representative capacity, be made as respondents; and that on failure to so
implead, the petitions should be dismissed for non-joinder of necessary parties. Reliance
is also placed on the decision in EX-CONSTABLE CHOTELAL vs UNION OF INDIA
[2000 (10) SCC 196] where the Supreme Court held that the principles of natural justice
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requires that selected persons whose appointments were sought to be set aside, should be
made parties to the proceedings.
17. The two cases relied on by the selected candidates were cases where on the date
of filing of writ petitions, the selection had already been made. But, in these cases, as
noticed above, the applications considered by the tribunal were transferred writ petitions
originally filed before this court in or about February, 2000. In February, 2000, only the
main examination results had been announced and no candidate had been called for
personality tests. Persons who had filed writ petitions were those who had failed in the
compulsory papers or those who were not considered to be qualified for personality test.
They had approached this court immediately after announcement of the main
examination results. The personality test was held only in July/August, 2001 and the
provisional selection list was published in September, 2001 more than one and a half
years after the filing of those writ petitions and long after the matters were transferred to
the Tribunal. The question whether a person is a necessary party or not has to be
examined as on the date of filing of the petitions and not with reference to the subsequent
events. In fact as the publication of provisional selection list was during the pendency of
applications, the said list is itself subject to the final decision in the pending cases.
Therefore, it cannot be contended that candidates who were selected on 28-9-2001 were
necessary parties to the applications.
18. In this case, what is challenged is not the selection of any particular candidate.
What is challenged is the entire evaluation process on the ground of fraud and
irregularities. It is a settled principle of service jurisprudence that where there are large
scale fraud or irregularities in selection and the entire selections are challenged on that
ground (as contrasted from challenge to the selection of any specific candidate), it is not
necessary to implead the selected candidates.
18.1) In GM, SOUTH CENTRAL RAILWAY, SECUNDERABAD vs A V R
SIDDHANTI [AIR 1974 SC 1155], the Supreme Court held that where a policy
regarding seniority is challenged as being violative of Articles 14 and 16 of the
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Constitution, relief can be claimed only against the authority/employer and non-joinder of
employees/persons who are likely to be affected by the decision will not be fatal to the
petitions. In this case, the challenge is on the ground that there are large scale
irregularities in the conduct of a competitive examination and in the evaluation of answer
scripts. Therefore, it cannot be said that all person who passed the examination or all the
persons who were subsequently shown as having been selected should be impleaded as
parties.
18.2) In KRISHNA YADHAV vs STATE OF HARYANA [AIR 1994 SC 2166], the
Supreme Court held that where the process of selection was conceived in fraud and
delivered in deceit involving fake and ghost interviews and tampering of records, the
entire selection will have to be held to be arbitrary and the principle that innocent
candidates should not be penalized for the misdeed of other will be inapplicable in such
cases. Supreme Court held that where there was a systematic fraud, the only course is to
set aside the entire selection, as fraud unravels everything; and where the selection
process is arbitrary, what is faulted is the entire selection as such and not the selection of
any individual candidates.
18.3) In UNION OF INDIA vs O CHAKRADHAR [2002 AIR SCW 872], the Supreme
Court held thus:
“ ....... the nature and extent of illegalities and irregularities committed in conducting the selection will have to be scrutinized in each case, so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all pervasive, affecting the results so as to make it difficult to pick out persons who have been unlawfully benefited or wrongfully deprived of their selection, in such cases, it will neither be possible nor necessary to issue individual show cause notices to each selectee. The only way out would be to cancel the whole selection........”
To a similar effect is the decision of Supreme Court in KENDRIYA VIDYALAYA
SANGTHAN vs AJAYKUMAR DAS [2002 (4) SCC 503].
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19. We, therefore, hold that there was no need for the applicants before the Tribunal
to implead all the candidates who were qualified for the personality test or all the selected
candidates.
ii) Whether there were any irregularities in the evaluation/moderation:
20. The grievance of unsuccessful candidates who approached this court Tribunal was
not in regard to the conduct of examinations, but in regard to the valuation. What is
alleged are (a) improper evaluation leading to applicants before the tribunal being shown
as having failed in the compulsory papers [Kannada and English]; and b) irregularities in
moderation to help several candidates to secure higher marks than they deserved.
Though a vague contention that the key answers [model answers] prepared for the benefit
of Evaluators for the purpose of evaluation, were leaked out even before the main
examination was urged, it was not pursued nor established. In fact KPSC has clarified
that the examinations were held between 9-4-1999 and 3-5-1999 and valuation work
commenced on 17-5-1999 and the model answers were prepared only a few days before
the actual commencement of the valuation. Therefore the question of model answers
being leaked at the time of examination does not arise. In fact the tribunal has also not
recorded any finding of any irregularity in conducting the examination. It has only
directed fresh valuation of answer scripts and not fresh examination. Therefore, what
falls for consideration is whether there were large scale irregularities in
evaluation/moderation as alleged by the applicants (unsuccessful candidates).
21. The first contention of he applicants before the Tribunal was that having regard to
their qualifications, they would not have failed in SSLC level Kannada/English papers
and the fact, that they are shown as having failed in Kannada or English papers shows
that valuation was not proper and therefore, their papers should be re-evaluated. It is,
well settled that no candidate has a right to seek revaluation of his/her answer scripts
unless such a right is expressly conferred by the Rules governing the conduct of the
Examination. In MAHARASHTRA STATE BOARD OF SECONDARY & HIGHER
SECONDARY EDUCATION & OTHERS vs PARITOSH BHUPESH
KURMARSHETH [AIR 1984 SC 1543], the Supreme Court held that there is no legal
351
right in any examinee to demand disclosure, inspection or verification of his answer
books in the absence of an express provision in the Rules/Regulations, governing the
conduct of examination; and that the power conferred on the Examining Authority to
order revaluation or correct errors in the event of mal practice or fraud does not confer a
right of an examinee to seek revaluation. But, as already noticed, if there are large scale
irregularities in regard to valuation, the Court can direct revaluation of all answer scripts.
It is however unnecessary to examine this matter further, as KPSC has, having regard to
the facts and circumstances, voluntarily come forward to re-evaluate the compulsory
papers [Kannada and English] of the applicants before the Tribunal if they have been
shown as having failed in those subjects. KPSC has, however, made it clear that this
concession of revaluation is only in regard to compulsory papers and that too only in
regard to the applicants/petitioners who have already approached the Tribunal or this
court and who have failed in such papers. As only a few candidates have a grievance in
regard to valuation of their compulsory papers (English and Kannada), we are satisfied
that relief in regard to revaluation of compulsory papers should be restricted to those
candidates who have approached the Tribunal or this Court till now and none others.
22. The next grievance is in regard to alleged irregularities in evaluation. Evaluation
consists of two stages: (i) Evaluation of all answer scripts by Examiners; and (ii) random
re-evaluation by Head Examiners and Chief Examiners resulting in moderation. KPSC
issued instructions to the examiners in regard to evaluation and also issued Guidelines
containing the nature and duties of the Chief Examiner and Head Examiners. Paras 1 to 4
of the said guidelines to Chief/Head Examiners which are relevant are extracted below:
1. Before the commencement of the central valuation the Examiners will be supplied with the question papers and the model answers/scheme of valuation adopted/finalised by the Chief Examiners and the Head Examiners in their meeting held previous to the day of commencement of central valuation. This will be followed by a detailed discussion between the Chief Examiners, the Head Examiners and the Examiners for a thorough exchange of views on various aspects covering central valuation, model answers/scheme of valuation etc. 2. In the light of the model answers/scheme of valuation supplied to them and the consensus arrived at the meeting with the Chief Examiners and the Head Examiners, the Examiners will have to carry out a sample
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valuation of at least ten answer scripts. These sample valuation will have to be reviewed by the Head Examiners. Deviation if any, will be informed to the Examiners concerned. After this, the Examiners will go ahead with their job of valuation.
3. During the course of central valuation, the Head Examiners should continuously review at random the valuation done by the Examiners, to ensure that the scheme of valuation is actually being followed by them. Such random sampling should not be less than 5% of the top-level answer scripts and the overall random review should not be less than 10% of the answer scripts evaluated by each Examiner. During the review, the Head Examiners can carry out alteration in the awards keeping in view the scheme of valuation. 4. The Chief Examiner will co-ordinate with the Head Examiners and the Examiners in the smooth and orderly conduct of the central valuation. During the central valuation, the Chief Examiner should also review at random the answer scripts valued by the Examiners and/or re-review the answer scripts already reviewed by the Head Examiners to ensure uniformity in the valuation among the Examiners and the Head Examiners. The marks awarded by the Examiners, the Head Examiners or the Chief Examiners, as the case may be, shall be final unless otherwise decided by the Commission for valid reasons.
23. Where a large number of answer scripts are to be evaluated, obviously they
cannot be evaluated by a single examiner. The answer scripts relating to the same subject
are therefore distributed to several Examiners, for evaluation. When there is more than
one or when there are several Examiners for evaluation of the answer scripts relating to a
subject, usually two problems arise:
(iii)Each Examiner will have his own perception as to what is the right answer. In fact some Examiners may not even know what exactly is the correct answer, leading to incorrect evaluation.
(iv) Each examiner will have his own method of awarding marks. While
some may be highly conservative or ‘stingy’ in awarding marks, some may be highly liberal or ‘generous’ in awarding marks. There may also be different levels of ‘stinginess’ or ‘generousness’ among the Examiners.
To iron out the natural creases arising in evaluation, it is necessary to adopt certain
procedural safeguards to ensue that no candidate is unjustly benefited or placed at a
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disadvantage, vis-a-vis the other candidates and to ensure that the evaluation is uniform
and consistent.
23.1) The first problems is dealt with by preparing and furnishing model answers to the
Examiners and having a group discussion before the commencement of evaluation with
Head/Chief Examiners to sort out the doubts and modalities.
23.2) The second problem is usually sought to be solved by adopting moderation. In
this case, KPSC has chosen double random review method as detailed in para 3 and 4 of
the guidelines (extracted in para 22 above). The more effective way of achieving
moderation is by Scaling Technique method adopted by the Union Public Service
Commission. Under that method, after evaluation by the Examiners, the Head Examiner
conducts a random sample-survey of answer books to ensure that the norms and
standards have been followed scrupulously by the examiners. For this purpose, some
answer books of higher grading are produced for the scrutiny of the Head Examiner. A
few answer books of middle and lower levels or marks are also selected at random for the
same purpose. The Commission will also supply statistics like distribution of candidates
in various ranges based on marks obtained by them, the average percentage of marks and
the highest and lowest awards etc., for the papers valued by the concerned Examiner in
order to assist the Head Examiner in his work and help forming his judgement about the
standards marking of each Examiner. On such survey, the Head Examiner may either
confirm the awards without any change on satisfying himself that the examiner has
followed the instructions on the standards decided upon or may suggest an upward or
downward revision as the case may be, as moderation, the quantum of moderation
varying according to the degree of strictness or liberality of the Examiner, revealed by the
random survey. In the case of top level answer books, revalued by the Head Examiner,
his award of marks are accepted as final. As regards the other answer books, below the
top level, to achieve maximum measure of uniformity among the Examiners, the awards
are moderated as per the recommendations made by the Head Examiner.
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24. In the double random review method adopted by KPSC only the answer scripts
re-evaluated at random get moderated and the adverse effect of either too strict or too
liberal award by an Examiner in regard to other answer scripts evaluated by him remains
un-rectified. (For example, if an Examiner who is too liberal evaluates 100 answer
scripts resulting in liberal valuation of 100 scripts and five of such answer scripts are re-
evaluated and moderated by the Chief/Head Examiner, the effect of moderation is
reflected only on those five answer scripts and the valuation in regard to the remaining 95
answer scripts remains unaltered). But in the scaling technique method uniformity is
achieved on account of Head Examiner moderating the award in respect of all other
answer scripts evaluated by the Examiner, by either an upward or downward revision
depending on the strictness or liberality of the Examiner disclosed on random re-
valuation. Thus where several Examiners evaluate the answer scripts in respect of the
same subject or a single paper, Scaling Technique method will be more appropriate.
Reaslising the need for such moderation, particularly in view of the irregularities noticed,
KPSC in its memo filed on 22-7-2002 has agreed to apply the Scaling Technique method
in this case. It has agreed that if on random review of answer scripts evaluated by an
Examiner, the average variation is more than plus or minus 20 (out of 300), the marks
awarded by such examiner shall be increased or decreased by that average in respect of
each of the answer scripts evaluated by that examiner; and in case the average variation is
less than plus or minus 20, but variation in respect of individual answer script in plus or
minus 20 or more, those answer scripts would be subjected to third valuation. We find
that what is suggested by KPSC is fair and reasonable and will safeguard the interests or
all candidates who have taken the examination.
25. Before taking up the next question relating to irregularities, we extract below the
details of the optional subjects, the total number of answer scripts, the number of
Examiners, the total number of answer scripts moderated by Head Examiners and or by
Chief Examiner, in regard to each subject (extracted from statements furnished by
KPSC):-
Sl. No.
Subject/Paper Total Number of
answer
Total number of examiners
Total number of answer
scripts
Number of answer scripts moderated by
355
scripts valued
appointed moderated by Head Examiner
Chief Examiner
1 2 3 4 5 6 1. AG& MKTG,
SERI, Paper-1 222 7 0 3
2. AG& MKTG, SERI, Paper-2
219 14 0 4
3. An.Husb. & V.Sc. Paper-1
78 9 0 78
4. An.Husb & V.Sc. Paper-2
77 9 0 77
5. Botany Paper-1 654 18 59 31 6. Botany Paper-2 652 12 65 26 7. Chemistry Paper-
1 197 7 42 37
8. Chemistry Paper-2
193 5 39 41
9. Civil Engg. Paper-1
28 2 0 3
10. Civil Engg. Paper-2
27 1 0 4
11. Commerce Paper-1
256 8 24 30
12. Commerce Paper-2
256 9 19 24
13. Criminology Paper-1
832 12 0 83
14. Criminology Paper-2
826 11 0 99
15. Economics Paper 1
998 19 99 12
16. Economics Paper-2
995 18 97 11
17. Elecl.Engg. Paper-1
31 3 0 3
18. Elecl.Engg. Paper-2
31 3 0 5
19. Geography Paper-1
1135 21 109 7
20. Geography Paper-2
1132 26 110 9
21. Law Paper-1 422 9 0 119 22. Law Paper-2 419 9 1 125 23. Mathematics
Paper-1 221 6 9 37
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24. Mathematics Paper-2
222 6 43 13
25. History Paper-1 4389 54 446 24 26. History Paper-2 4386 48 445 28 27. Mechl. Engg.
Paper-1 54 3 0 4
28. Mechl. Engg. Paper-2
52 1 0 6
29. Philosophy Paper-1
21 1 0 4
30. Philosophy Paper-2
20 1 0 5
31. Geology Paper-1 106 4 0 26 32. Geology Paper-2 106 4 0 23 33. Physics Paper-1 323 7 32 21 34. Physics Paper-2 322 7 21 7 35. Pol.Science
Paper-1 1462 24 146 19
36. POL. Science Paper-2
1458 25 135 14
37. Psychology Paper-1
336 10 54 23
38. Psychology Paper-2
337 9 40 7
39. Public Admn. Paper-1
2266 40 224 6
40. Public Admn. Paper-2
2252 36 227 4
41. Sociology Paper-1
2572 31 321 77
42. Sociology Paper-2
2555 32 276 47
43. Statistics Paper-1 30 1 0 10 44. Statistics Paper-2 30 2 0 7 45. Zoology Paper-1 509 7 127 100 46. Zoology Paper-2 508 8 102 98 47. Rl.Devpmnt
Paper-1 565 14 45 47
48. Rl.Devpmnt Paper-2
564 11 111 161
49. Hindi Paper-1 26 2 0 21 50. Hindi Paper-2 26 2 0 6 51. Anthropology
Paper-1 729 10 8 172
52. Anthropology 721 10 65 88
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Paper-2 53. Urdu Paper-1 74 4 0 5 54. Urdu Paper-2 74 3 0 2 55. Kannada Paper-1 1348 46 147 48 56. Kannada Paper-2 1342 42 140 7 57. English Paper-1 214 7 20 6 58. English Paper-2 214 8 32 4 59. Management
Paper-1 127 5 0 17
60. Management Paper-2
124 5 0 21
61. Gen.Studies Paper-1
10493 154 1026 43
62. Gen.Studies Paper-2
10425 151 1025 34
61283 1073 5931 2124
26. We will now proceed to consider the allegation relating to irregularities in
evaluation. The first stage is the evaluation by the examiners. The contesting
respondents [unsuccessful candidates] have neither alleged nor made out any irregularity
at the stage of evaluation by the examiners, except making a vague allegation that some
of the examiners were related to the candidates who took the examinations. The
Examiners came into the picture only at the stage of evaluation of the answer scripts.
They had no part to play earlier. No Examiner knew which answer scripts would be
entrusted to him for evaluation. The answer scripts were made into bundles of 10 each
after randomising, and sent to the place of central valuation. The bundles of answer
scripts were handed over to the Chief Examines, who in turn handed over them to the
Examiners in the central valuation hall under the supervision of the Head
Examiners/Chief Examiners and the Officers of Commission. Further, the answer scripts
which were given to the Examiners for evaluation were coded and it was not possible for
any Examiner to know the identity of the candidates whose answer scripts were evaluated
by him.
27. There is nothing to show that the Examiners were related to any of the candidates
or that on account of such relationship, any examiner helped any candidate in securing
higher marks. The records secured by the Tribunal and by us do not disclose any
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irregularity at the stage of evaluation by the Examiners. The fact that some irregularities
took place in re-evaluation by Chief Examiner/s cannot lead to an inference that there
was any irregularity in evaluation by the Examiners. The Tribunal found irregularities at
the stage of re-evaluation and moderation and not at the earlier stage of evaluation by the
Examiners. It has not recorded any specific finding of irregularity in the evaluation by
the Examiners. Though an allegation of irregularity is not proof of irregularity, the
Tribunal was persuaded to direct wholesale fresh evaluation on account of the refusal by
KPSC to furnish the particulars sought by it. KPSC has now furnished those particulars
and clearly explained why such particulars were not furnished to the Tribunal. In the
absence of any specific allegation regarding irregularity in evaluation by Examiners and
in the light of material placed before us, we find no reason to direct fresh evaluation of all
answer scripts by a new set of Examiners. While it is true that every unsuccessful
candidate who took the examinations should have the satisfaction that the
examinations/evaluation were done fairly and that only persons better qualified than him
have been selected in a fair competitive examinations, mere doubts and apprehensions,
without factual basis, cannot lead to interference with the evaluation.
28. We may, however, refer to one aspect in regard to appointment of Examiners for
future guidance of KPSC. We find that KPSC has not proceeded in accordance with any
set guidelines as to the ratio of examiners to be appointed for evaluating the answer
scripts. For example we find that as many as 9 examiners were appointed to evaluate
only 78/77 answer scripts [I and II papers] of Animal Husbandry and Veterinary
Sciences; the number of examiners appointed for evaluating 256 answer scripts each in
Commerce and 422/419 answer scripts in Law were also nine. While only one examiner
was appointed to evaluate 52 answer scripts in Mechanical Engineering (Paper II) and
one Examiner to evaluate 30 answer scripts of Statistics (paper I), we find that three
examiners were appointed to evaluate 31 answer scripts in Electrical Engineering. The
number of examiners appointed for evaluating 729/721 answer scripts in Anthropology
papers was 10. The number of examiners to evaluate 214/214 answer scripts in English
papers was eight. We find 58 examiners were appointed to evaluate 4386 history papers,
151 Examiners were appointed to evaluate 10425 answer scripts in General Studies.
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While 24/25 examiners were appointed to evaluate 1462/1458 answer scripts in political
science papers, 46/42 examiners were appointed to evaluate 1348/1348 Kannada papers.
We have referred to these figures only to demonstrate that there is no discernable ratio
between the number of answer scripts to be evaluated and the number of Examiners
appointed. The guidelines state that an examiner was required to evaluate 30 answer
scripts per day in regard to optional/general studies papers. Therefore KPSC should have
only such number of examiners as are required with reference to number of answer
scripts to be evaluated and number of days allotted for evaluation. It should be
remembered that more number of evaluators means more chances of variation, and need
for more moderation. Ideally the number of examiners should be kept to the minimum,
so that the chances of variation in evaluation is also the minimum. In future KPSC may
consider fixing a ratio between the number of answer scripts and the Examiners for
evaluation and avoid unnecessarily large number of examiners being appointed in some
subjects. Be that as it may. These observations are not intended in any way to cast any
doubt about the manner of evaluation in regard to the examination under consideration.
29. To find out whether there was any irregularity at the stage of moderation by the
Head Examiners/Chief Examiners, we have called for and examined the following
statements/abstracts produced by KPSC (among others):
i) statement showing the merit wise marks of the first 50 candidates category wise (that is GM, Group I, 2A, 2B, 3A, 3B, SC and ST):
ii) statement showing the subject wise marks awarded by the Examiners, Head
Examiners and Chief Examiners, where the difference is plus 20 and above (335 answer scripts);
iii) statement showing the subject wise marks awarded by the Examiners, Head
Examiners and Chief Examiners, where the difference is minus 20 and above (in regard to 326 candidates);
iv) subject wise abstracts showing the number of answer scripts moderated by
Head Examiners and Chief Examiners and the number of answer scripts where the variation on moderation is plus or minus 20 and more;
v) subject wise list of Examiners, Head Examiners and Chief Examiners.
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31. On such verification, we find that in regard to the following seven optional
subjects (out of the total 30 optional subjects) consisting of two papers each, the number
of answer scripts were very few and therefore no Head Examiners were appointed and
only chief Examiners were appointed and only chief Examiners were appointed, and that
the Chief Examiners have done random review of adequate number of answer scripts.
Subject code No.
Name of the subject Total number of answer scripts
No.of answer scripts reviewed by the Chief Examiner
3 Animal Husbandry-I 78 78 4 Animal Husbandry-II 77 77 9 Civil Engineering-I 28 3
10 Civil Engineering-II 27 4 17 Electrical Engg.-I 31 3 18 Electrical Engg.-II 31 5 27 Mechanical Engg.-I 54 4 28 Mechanical Engg.-II 52 6 29 Philosophy-I 21 4 30 Philosophy-II 20 5 31 Geology-I 106 26 32 Geology-II 106 23 53 Urdu-I 74 5 54 Urdu-II 74 2
On review, the variation in marks has not exceeded plus or minus 20 marks (out of 300
marks) in regard to any answer scripts. There is therefore no need to adopt any scaling
technique moderation. As we do not find any irregularity in regard to the review
evaluation or moderation in regard to the said seven subjects, there is no need to interfere
with the valuation in respect of said papers.
32. In regard to the following four optional subjects also, no Head Examiners was
appointed. But, the Chief Examiners have done adequate random review of answer
scripts. The variation beyond plus or minus 20 marks [out of 300 marks], is nil in regard
to some papers and hardly a few and that too only marginal in the other papers, as
detailed below:
Sub. Code No.
Name of the Subject
Total No.of answer scripts
No.of answer scripts
evaluated by chief Examiner
No.of answer scripts where
variation is more than plus or minus
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20 and extent thereof
21 Law-I 422 119 Nil 22 Law-II 419 125 Nil 43 Statistics-I 30 10 1
(+22 marks) 44 Statistics-II 30 7 3
(+23 to 27 marks) 49 Hindi-I 26 21 1
(-25) 50 Hindi-II 26 6 Nil 59 Management-I 127 16 1
(-25) 60 Management-II 124 18 3
(-20 to –30)
Therefore, even in regard to the above four optional subjects, there is no need to adopt
any scaling technique moderation. As we find no irregularities, there is no need to
interfere with the valuation in respect of the said papers also.
33. In regard to the optional subject-Chemistry, the total number of answer scripts
were 197 and 193 in Paper I and II. The Head Examiners have reviewed 42/39 answer
scripts and Chief Examiners have reviewed 37/41 answer scripts. In regard to paper II
there is no variation exceeding plus or minus 20 marks on such review. In regard to
paper-I, the variation is only in regard to three answer scripts beyond plus or minus 20
marks (between + 23 and + 31) on review by the Chief Examiners. We can therefore
conclude that in regard to those papers also there are no irregularities and no need for
scaling Technique moderation and consequently there is no need to interfere with the
valuation process.
34. In regard to one optional subject (Agriculture & Marketing) no Head Examiner
was appointed and Chief Examiner had reviewed only 3 answer scripts out of 222 in
paper I and 4 answer scripts out of 279 in paper II and the percentage is hardly 1% to 2%.
In regard to another optional subject (Criminology) also, no Head Examiner was
appointed even though the number of answer scripts are large. The answer scripts
moderated by Chief Examiner is around five percent only. In regard to the remaining
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sixteen optional subjects (two papers each) and General studies (two paper), we find that
the number of answer scripts and number of Examiners are large. The variations
exceeding plus or minus 20 marks, are also substantial. We given below the particulars
of answer scripts moderated:
Answer papers moderated by
(original figures)
Answer papers moderated
(Revised figures)
Sl. No.
Subject/Paper Total Number
of answer scripts Head
ExaminersChief
ExaminersHead
Examiners Chief
Examiners1. AG & MKTG,
SERI, Paper-1 222 0 3 0 3
2. AG & MKTG, SERI, Paper-2
219 0 4 0 4
5. Botany Paper-1 654 48 20 59 31 6. Botany Paper-2 652 43 26 65 26 11. Commerce
Paper-1 256 24 11 24 30
12. Commerce Paper-2
256 19 6 19 24
13. Criminology Paper-1
832 0 43 0 83
14. Criminology Paper-2
826 0 44 0 99
15. Economics Paper 1
998 92 10 99 12
16. Economics Paper-2
995 94 9 97 11
19. Geography Paper-1
1135 96 5 109
20. Geography Paper-2
1132 103 6 110 9
23. Mathematics Paper-1
221 9 32 9 37
24. Mathematics Paper-2
222 34 13 43 13
25. History Paper-1 4389 403 24 446 24 26. History Paper-2 4386 293 18 445 28 33. Physics Paper-1 323 30 17 32 21 34. Physics Paper-2 322 20 3 21 7 35. Pol.Science
Paper-1 1462 119 14 146 19
36. Pol. Science Paper-2
1458 0 0 135 14
37. Psychology 336 54 21 54 23
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Paper-1 38. Psychology
Paper-2 337 40 3 40 7
39. Public Admn. Paper-1
2266 158 5 224 6
40. Public Admn. Paper-2
2252 178 2 227 4
41. Sociology Paper-1
2572 308 70 321 77
42. Sociology Paper-2
2555 251 40 276 47
45. Zoology Paper-1
509 123 73 127 100
46. Zoology Paper-2
508 96 50 102 98
47. Rl.Devpmnt Paper-1
565 45 111 45 47
48. Rl.Devpmnt Paper-2
564 103 138 111 161
51. Anthropology Paper-1
729 8 137 8 172
52. Anthropology Paper-2
721 51 77 65 68
55. Kannada Paper-1
1348 131 13 147 48
56. Kannada Paper-2
1342 119 8 140 7
57. English Paper-1 214 20 3 20 6 58. English Paper-2 214 6 4 32 4 61. Gen.Studies
Paper-1 10493 794 37 1026 43
62. Gen.Studies Paper-2
10425 887 31 1025 34
The large variation in the figures earlier furnished and subsequently modified as to the
answer scripts that were moderated raises a doubt about the actual number of answer
scripts reviewed by Head Examiners and Chief Examiners. Be that as it may. In spite of
the above, moderation was restricted only to the answer scripts which were reviewed by
the Head/Chief Examiners and no effort was made to adopt the scaling technique of
moderation by applying an upward or downward revision to all the answer scripts
evaluated by the respective examiners. Further, in regard to most of those subjects the
random preview was not done to the extent suggested in the guidelines (5% of top level
answer scripts and overall random review of 10%). No minutes or record has also been
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maintained to show whether moderation was done by the Head Examiners/Chief
Examiners in the manner required by the guidelines. They (the answer scripts in the
above subjects) therefore require proper review. KPSC having realised the
inadequacies/irregularities has now agreed to do the moderation by applying scaling
Technique (as stated its memo dated 27-3-2002 filed on 22-7-2002).
36. There are also serious irregularities in the review valuation by one of the Chief
Examiner (Prop. K.S.Shivanna) in regard to some candidates in particular, one
K.Rameshwarappa and his family members (B.S.Nagaraj and B.S.Triveni) which when
disclosed in the newspapers led to the filing of the writ petitions. We extract below the
facts which are gathered by the sub-committee constituted by KPSC itself in its
investigation and is conclusions in this behalf:
“During the investigation, it came to notice of the committee that apart from Sri. K.Rameswarappa and two other named in the resolution, one more candidate Smt.B.S.Hemalatha with register No.414089 who is also closely related to Sri. K.Rameswarappa was a candidate in the examination in question and she has also been selected. Hence the committee decided to examine her case also. Sri. K.Rameswarappa is employed as Deputy Director of Food and Civil Supplies. Sri.B.S.Nagaraj is the elder brother of Sri.Rameswarappa’s wife. Smt.B.S.Triveni and Smt.B.S.Hemalatha are sisters of Rameswarappa’s wife. The academic record of these four candidates is average. For the competitive examination all these four persons chose by the same optional subjects...... On a verification of the answer scripts of these four candidates in respect of General Studies Papers-1 and II and History Papers-I and II. It is noticed that all the four candidates have chosen the very same questions for answering and the answers they have written are almost identical. .....The Head Examiner/Chief Examiner is required to pick up one script from each bundle at random. It is also stated that the scheme of valuation envisages that where the variation between the marks awarded by the Examiner and Head Examiner/Chief Examiner is more, the Head Examiner/Chief Examiner is required to discuss with and advise the Examiner to ensure that there is uniformity in valuation. The Examiners have stated that in none of the cases in question the Chief Examiner has consulted or advised the Examiners even while increasing the marks in respect of these 4 candidates in question enormously. They have also stated that they do not know how the Chief Examiner has picked up more than one answer script from the very same bundle.....Prof K.S.Shivanna was appointed as Chief Examiner based on the panel obtained by the
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Commission from the Universities in the State. He was appointed as Chief Examiner for answers written in Kannada medium in respect of General Studies and History papers...The valuation was done on 12 working days. Prof.K.S.Shivanna has evaluated 127 answer scripts as Chief Examiner....In his statement he admitted that he has in the process of moderation in respect of these 4 candidates given marks for writing totally wrong answers which he claims to be by oversight committed carry over mistakes/total mistakes which has resulted in more marks in favour of the candidates and in some cases in respect of these four candidates he has awarded more marks than the maximum mark prescribed for the question. He says all these are bona fide errors. The committee is of the view that having regard to the expertise of prof. K.S.Shivanna in the subject, his long experience as an Examiner and the statements of the Examiners/Head Examiners, the defence of Prof. K.S.Shivanna cannot be accepted. There are few more aspects which have come in the evidence which strengthens this view of the committee. As already stated, a total of 127 answer scripts only were moderated by prof. K.S.Shivanna in a span of 12 days. But, in his statement he avers that he committed glaring irregularities because of pressure of work and that he was to value large no. of answer scripts but the record prove otherwise. When the sub-committee scrutinised all the answer scripts picked up by Dr.K.S.Shivanna for moderation, it is noticed that Dr.Shivanna has awarded abnormally higher marks after moderation to the other 6 candidates namely 1) Leela M, bearing Reg.No.117641 selected for the post of Asst.Commissioner 2) Sri. Ponnappa K.C., Reg.No.415634 selected for the post of Asst.Controller of State Accounts 3) Naveen, Reg.No.110374 not selected for any post 4) Sri Subash, Reg.No.126347 not selected for any post 5) Sri Pratap, Reg.No.109582 not selected for any post 6) Sri.Cauveriappa, Reg.No.108226 not selected for any post. It is prima-facie noted that their answers, do not merit such high marks from any standard of valuation. Further, Dr.K.S.Shivanna never brought this to the notice of Examiner or Head Examiner, why he has escalated the marks so much. The omissions and commissions found clearly probabalise with the first 4 candidates earlier referred wanted to be brought to the forefront. As far as these six candidates are concerned prima-facie there appears to be a motive to bring these persons some how or other to the eligibility list by Dr.K.S.Shivanna by awarding abnormally higher marks. However, in spite of this four candidates namely (1) Naveen P C, Reg.No.110374 (2) Subhash K G, Reg.No.126347 and (3) Pratap K R, Reg.No.109582 (4) Cauveriappa Reg.No.108226 did not figure in the select list.
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Yet another pattern that is seen in the choice of answer script for evaluation by the Chief Examiner Prof.K.S.Shivanna is that wherever he has picked up only one or two answer scripts of a candidate, the difference between the marks awarded by him and that awarded by the examiner has been marginal and there are both increases and reductions. However, wherever he has picked up 3 or more papers, the difference has invariably been on the plus side to the benefit of the candidate. In respect of Sri K Rameswarappa, Sri. B.S.Nagaraj, Smt.B.S.Triveni and Smt.B.S.Hemalatha, the Chief Examiner Prof. K.S.Shivanna has moderated 3 papers each of these candidates and has increased the marks enormously. All these four persons who are closely related are selected with Sri. K.Rameswarappa getting first rank, Sri. B.S.Nagaraj getting second rank and Smt.B.S.Triveni getting fourth rank and Smt.B.S.Hemalatha getting selected as Tahsildar that is Group-B post though not securing glaringly high rank as the other three. By virtue of their high ranks secured Sri.K.Rameswarappa is selected as Assistant Commissioner, Smt.B.S.Triveni is also selected as Assistant Commissioner and Sri. B.S.Nagaraj is selected as Assistant Commissioner of Commercial Taxes. It appears Prof.K.S.Shivanna boosted the marks and selected more than one answer script of the very same candidate in cases other than these 4+6 candidates also only with a view to find a cover for his wrong doing in respect of these four+six candidates. The evidence collected by the Committee shows that Prof.K.S.Shivanna, the Chief Examiner, Sri. K.Rameswarappa, the beneficiary of the largesse not only for himself but also for his family members and Sri A.K.Monnappa who was the Secretary of the Commission and without whose connivance it would not have been possible for the Chief Examiner to know the code numbers of the candidates, joined together as a well knit team and all the three have been part of criminal conspiracy. Evidence collected by the Committee shows that Sri. K.Rameswarappa was visiting Sri A.K.Monappa, the Secretary of the Commission very frequently. The regularity of his visits were so frequent that he was not even required to send either a visiting card seeking permission to see Sri. A.K.Monappa or send a chit containing his name to the Secretary seeking the permission to see him. That apart, Prof.K.S.Shivanna was the research guide for the Ph.D. programme of Sri K.Rameswarappa. After then Examination and evaluation was over during September, 2000 these three persons have also undertaken a joint foreign tour. Sri. K.Rameswarappa has given E-mail ID of Prof.K.S.Shivanna as his E-Mail address in the conference papers. The evidence collected by the Committee clearly establishes that Sri. A.K.Monappa has parted with the code numbers of the candidates to Prof.K.S.Shivanna and he has also taken the help of Prof.Shivanna in substitution of some of the answer papers of these four candidates in question. The Committee is of the view that the result of these four
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candidates requires to be annulled and appropriate action including criminal has to be initiated against the four candidates in question, Sri. A.K.Monappa who was the then Secretary of the Commission and Prof.A.K.Shivanna who was the Chief Examiner in question. The clinching evidence apart from what is set out above to establish the conspiracy is that as already stated Prof. K.S.Shivanna was only a Chief Examiner in respect of Kannada medium in the subjects of General Studies and History. He also picked up and boosted the marks in respect of Sri B.S.Nagaraj and Smt. B.S.Triveni who had answered the papers in English Medium. When this was confronted to Prof. K.S.Shivanna by the Committee, his answer was Prof. Narasimha Raju Naidu who was the Chief Examiner in English medium in these two subjects was away on those days and the examiner Head Examiner has brought the papers to Prof.K.S.Shivanna and accordingly he has moderated those papers. The evidence before the committee belies this statement of Prof.K.S.Shivanna. At the relevant point of time Prof.Narasimha Raju Naidu was very much present and there was no reason for Prof.K.S.Shivanna to have moderated the papers of Sri. B.S.Nagaraj and Smt.B.S.Triveni. The answer papers were picked up by Prof.K.S.Shivanna himself and they were not given to him by any Examiner or Head Examiner as claimed by him, as already stated in the earlier part of this report. Further on the covering sheet of the answer papers of these candidates there are so many alterations made in the marks awarded to each question which clearly indicates that the effort was to give the requisite marks to these candidates to secure them places at a particular rank in the order of the merit. One more aspect requires to be noticed here. Prof. Narasimha Raju Naidu who as Chief Examiner for English medium answer scripts of General Studies and History papers went on leave when the valuation was in progress from 24th May. Having regard to the fact that General Studies is a compulsory subject and nearly 50 percent of the candidates take History as one of the optional subjects immediate arrangements were required to be made by a proper order by the Secretary of the Commission appointing some one as Chief Examiner for English medium answer scripts in these subjects. No written order was issued by Sri A.K.Monnappa, the Secretary. However, the enquiries have disclosed that Prof.K.S.Shivanna performed the duties of Chief Examiner in respect of English medium students in General Studies and History on oral instructions of the then Secretary.
37. We have noted below some glaring instances where professor K.S.Shivanna, who
random reviewed 127 answer scripts in History (I & II) and General Studies (I & II) as
Chief Examiner, has played havoc by awarding abnormally high marks:
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Sl. No.
Name Subject Marks awarded by Examiner
Marks awarded by
Head Examiner
Marks awarded by Chief Examiner
(K.S.Shivanna) 1. Rameswarappa
Reg.No.414084 (Category I)
General Studies Paper-II History Paper-I History Paper-II
59
155 91
-
- -
246
262 245
2. Nagaraja B S Reg.No.414064 (Category I)
General Studies Paper-II History Paper-I History Paper-II
128
170 168
- 205 -
200
243 230
3. Triveni B S Reg.No.414066 (Category I)
General Studies Paper-II History Paper-I History Paper-II
174
232 155
148
- -
215
244 234
4. B S Hemalatha Reg.No.414089 (Category I)
History Paper-I History Paper-II General Studies Paper I
159 102
134
- -
-
225 302
165
5. Reg.No.415634 K.C.Ponnappa (GM)
History Paper-I General Studies Paper-I General Studies Paper-II
162
86
134
-
-
-
200
160
180 6. Reg.No.109582
Pratap (Category 2A)
History Paper-I History Paper-II General Studies Paper-I General Studies Paper-II
112 90
86
92
- -
-
-
160 174
137
150
In some cases Prof. K.S.Shivanna, as Chief Examiner, while drastically increasing the
marks of a candidate in a particular category has also drastically reduced the marks of
another candidate, apparently to enable favoured candidates to have a better chance of
selection. We may refer to the following instances:
Name/Regn.No. Subject Marks awarded by Examiner Head Examiner Chief Examiner 409001 (Category 3A)
History-II General Studies-I
139 155
- -
180 172
131377 (Category 3A)
General Studies-I General Studies-II
117 153
- -
147 185
111237 General Studies-I 209 177 139
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(Category 3A)
As a result the marks of candidates No.409001 and 131377 in category 3A were
increased from 955 to 1013 and 902 to 977 were as the marks of candidate No.111237
went down from 1054 to 973.
Marks awarded by Name/Regn.No. Subject Examiner Head Examiner Chief Examiner
M.Leela Reg.No.117641 (SC)
History-I History-II General Studies-I General Studies-II
183 143 115 90
- - - -
247 200
151
117141 (SC) History-I 221 - 194
As a result the marks of candidate (SC) No.117641 went up from 811 to 1049 and
candidate (SC) No.111742 went down from 1072 to 1045. Having regard to the number
of answer scripts in History (4389 and 4386 answer scripts) and General Studies (10,493
and 10425 answer scripts), it is doubtful whether Prof.K.S.Shivanna who random
reviewed in all 127 answer script of History and General Studies could have zeroed in an
three papers each of K.Rameswarappa and three members (B.S.Nagaraj, B.S.Triveni and
B.S.Hemalatha) or four papers each of Pratap and M.Leela. The inevitable inference is
that there have been large scale irregularities where Prof.K.S.Shivanna was involved as
Chief Examiner.
38. We are satisfied that having regard to glaring irregularities in random review by
Prof. K.S.Shivanna in regard to History (I&II) and General Studies (I&II) and having
regard to inadequate and/or improper moderation in regard to other seventeen subjects
(two papers each), the entire process of moderation requires to be done afresh in regard to
those papers (that is 18 optional subjects and General Studies).
39. In the result, we allow these petitions in part, as follows:-
a. The order dated 6.2.2002 of the K.A.T. in A.No.7901 to 7908/2001 and connected cases declaring that the entire valuation of answer scripts is arbitrary and consequently directing fresh evaluation in terms of para-78 of said order, is set aside.
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b. We declare that moderation/random review carried out by the Head Examiners and Chief Examiners in regard to both papers of the following subjects, is inadequate, improper and illegal and quash the same; Agriculture& Marketing, Botany, Commerce, Criminology, Economics, Geography, Mathematics, History, Physics, Political Science, Psychology, Public Administration, Sociology, Zoology, Rural Development, Anthropology, Kannada, English and General Studies. Consequently we direct KPSC to redo a fresh moderation in regard to the aforesaid Eighteen Optional Subjects and also General Studies in the manner suggested by KPSC in para (b) of its memo dated 27.3.2002 extracted below:
‘On the basis of random review of answer scripts done in respect of answer scripts evaluated by each examiner average variation shall be arrived at. Wherever the average variation is less than plus or minus 20 general review of the marks awarded need not be done. However, where the average difference is plus or minus 20 or more, the marks awarded by such examiner shall be increased or decreased by that average in respect of each of the answer scripts evaluated by that examiner. In case the average variation is less than plus or minus 20, but variation in respect of individual answer scripts is plus or minus 20 or more those answer scripts would be subjected to third valuation.”
The entire process of moderation shall be done under the supervision of the Secretary of KPSC. It is open to him to have the moderation done at a two-tier level (that is Head Examiner and Chief Examiner) or have it done at only one level (that is Chief Examiner). He shall select and prepare a fresh panel of Head and /or Chief Examiners for this purpose.
c. The evaluation of answer scripts in regard to following papers as
moderated by Head/Chief Examiners are upheld: Sl.No. Subject/Paper 3 An.Husb. & V.Sc. Paper-1 4 An.Husb. & V.Sc. Paper-2 7 Chemistry Paper-1 8 Chemistry Paper-2 9 Civil Engg. Paper-1 10 Civil Engg. Paper-2 17 Elecl. Engg. Paper-1 18 Elecl. Engg. Paper-2 21 Law Paper-1 22 Law Paper-2 27 Mechl Engg. Paper-1 28 Mechl Engg. Paper-2 29 Philosophy Paper-1 30 Philosophy Paper-2
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31 Geology Paper-1 32 Geology Paper-2 43 Statistics Paper-1 44 Statistics Paper-2 49 Hindi Paper-1 50 Hindi Paper-2 53 Urdu Paper-1 54 Urdu Paper-2 59 Management Paper-1 60 Management Paper-2
d. The process of interviews and selection carried out during the pendency of the applications before the KAT are declared illegal;
e. KPSC is directed to revalue the compulsory papers (English and/or
Kannada) of those candidates who have approached this Court or Tribunal for such revaluation, before this date;
f. After revaluation (as per para (e) above) and moderation (as per para
(b) above) as aforesaid, KPSC shall redo the list of candidates to be called for personality test, as per the rules and then proceed with the selection as per Rules. If on revaluation, such candidates are found to be qualified, they shall also be considered for selection of candidates for interview.
g. Parties to bear their respective costs.
***
[Note: Appeals preferred against this judgment in Civil Appeal Nos.6172-6222/2005 and connected cases have been dismissed by the Hon’ble Supreme Court as per judgment dated 6.10.2005 which has been reported in 2005 (6) Services Law Reporter 44]
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2005 (6) SERVICES LAW REPORTER 44 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6172-6222 OF 2005 & CONNECTED CASES (Arising out of SLP (C) Nos.11589-11639 of 2003)
D.D. 6.10.2005
HON’BLE MR. JUSTICE B.P. SINGH HON’BLE MR. JUSTICE ARUN KUMAR
K.Channegowda & Others ... Appellants Vs. Karnataka Public Service Commission & Ors. ... Respondents Examination - Examination malpractice indulged by some candidates with the connivance of Examiner – Effect: Constitution of India, Article 16 – Recruitment – Probationer – Post of Gazetted Probationers – Some unsuccessful candidates approached Tribunal with a grievnce that competitive examination held by Karnataka Public Service Commission was not fair – Manner in which examination was conducted and evaluation of answer scripts by the examiners were suspected – Tribunal directed Karnataka PSC to get all the answer scripts evaluated fresh – High Court gave directions to evaluate some of the answer scripts though not all - High Court was of the view that it was not necessary to get evaluated all answer scripts all over again – High Court directed holding of fresh interviews on the basis of marks obtained after re-evaluation of answer scripts – High Court has taken care to safeguard the interest of all concerned and to rule out the possibility of unfairness in the re-evaluation of answer scripts – Judgment of High Court affirmed. Cases referred: 1. AIR 1984 SC 1543 [Para 18] - Maharashtra State Board of Secondary and Higher
Secondary Education v. Paritosh Bhupesh Kumar. 2. 1990(1) SLR 138 (SC) [Para 24] – Anamica Mishra v. U.P. Public Service
Commission, Allahabad. 3. 2004(1) SLR 324 (SC) [Para 42] – U.P. Pulic Service Commission v. Subhash Chandra
Dixit.
JUDGMENT
Special leave granted in all the matters.
In this batch of appeals the common judgment and order of the High Court of
Karnataka at Bangalore dated October 11, 2002 has been assailed. The matter relates to
the conduct of competitive examination by Karnataka Public Service Commission for
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recruitment to the post of Gazetted Probationers (Group ‘A’ and ‘B’ posts). Some of the
unsuccessful candidates approached Karnataka Administrative Tribunal with a grievance
that the competitive examination conducted by the Karnataka Public Service Commission
was not fair impartial. The manner in which the examination was conducted and the
evaluation of the answer scripts by the examiners were suspect. In particular allegations
were made about the favours shown to one K.Rameswarappa, the appellant in Civil
Appeal arising out of SLP (C) No.24322 of 2003 and two of his relatives who had
secured high positions and were ultimately selected.
The Karnataka Administrative Tribunal by its judgment and order dated February
6, 2002 allowed the applications filed before it, inasmuch as it found certain irregularities
committed in the conduct of the competitive examination, and in particular favours
shown to the aforesaid Rameswarappa and some of his relatives. The Tribunal ultimately
directed the Karnataka Public Service Commission to get all the answer scripts evaluated
afresh after appointment of fresh examiners in accordance with the procedure contained
in the order. It also gave certain directions in regard to the evaluation of the answer
scripts and the declaration of the result.
The Karnataka Public Service Commission filed writ appeals before the High
Court of Karnataka at Bangalore challenging the findings recorded by the Administrative
Tribunal and the ultimate order passed by it. The High Court after hearing the parties
gave certain directions for the re-evaluation of some of the answer scripts, through not
all. The High Court was of the view that having regard to the findings recorded by it, it
was not necessary to get all the answer scripts evaluated over again. The judgment and
order of the High Court has been impugned in this batch of appeals.
The appellants in the appeals arising out of SLP (C) Nos.11589 to 11639 of 2003
are the unsuccessful candidates who were not selected for appointment. They contend
that the entire examination should have been scrapped in view of the findings recorded by
the Tribunal and the High Court.
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The appellants in appeals arising out of SLP (C) Nos.610-699 of 2004 are the
successful candidates who were selected for appointment by the Karnataka Public
Service Commission on the basis of the declared result. They contend that for no fault of
theirs the answer scripts are sought to be re-evaluated, particularly when the High Court
was able to identify the culprits and the beneficiaries of the irregularities committed in
the evaluation and moderation of the answer scripts. They contend that apart from the
person against whom a clear and categoric finding has been recorded, there is no need to
order fresh evaluation of the answer scripts in 15 optional subjects and also in general
studies.
The appellant in the appeal arising out of SLP (C) No.24322 of 2003 is one
Dr.Rameshwarappa against whom findings have been recorded by the Karnataka
Administrative Tribunal which have been affirmed by the High Court. He has challenged
the findings recorded against him and has prayed for setting aside the judgments and
orders of both the Karnataka Administrative Tribunal and the High Court.
The facts of the case may be briefly noticed.
On February 4th, 1998 the Government of Karnataka sent requisition to the
Karnataka Public Service Commission for the selection of 415 candidates for
appointment to the post of Gazetted Probationers (Group ‘A’ and ‘B’ posts). Pursuant to
the said requisition, the Karnataka Public Service Commission issued an advertisement
on March 9, 1998 inviting applications. As many as 85598 applications were received in
response to the said advertisement and out of them 79130 applications were found to
have been validly made by eligible candidates. In accordance with the rules for selection
to the said posts, a preliminary examination was held followed by the main examination.
The preliminary examination was held on August 30, 1998 in which 56228 candidates
appeared. Result of the preliminary examination was declared on November 16, 1998
and on the basis of the aforesaid result 9857 candidates were found eligible to take the
main examination. The main examination was held between April 9, 1999 and May 3,
1999. The answer scripts were evaluated between May 17, 1999 and June 18, 1999. On
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January 12, 2000 the result was declared and as many as 2397 candidates qualified for the
personality test. In the months of July and August, 2001 the personality test was held and
the provisional list of selected candidates was declared on September 28, 2001.
In February, 2000 eight candidates who had failed in compulsory papers of
Kannada/or English filed writ petitions before the High Court alleging serious
irregularities in evaluation of the answer scripts. The writ petition came up before a
learned Single Judge of the High Court who by a reasoned order dated March 21, 2000
referred the aforesaid writ petitions to the Division Bench.
In the meantime 24 other candidates filed writ petitions before the High Court.
Those writ petitions were also clubbed with writ petitions filed by eight candidates earlier
and another Writ Petition No.7022 of 2000 filed by another candidate. Ultimately the
Division Bench held that the writ petitioners may seek remedy before the Karnataka
Administrative Tribunal and that writ petitions were not maintainable. The High Court
transferred all the 33 writ petitions filed in the High Court to the Karnataka
Administrative Tribunal. Nine other petitioners had directly approached the Karnataka
Administrative Tribunal. In this manner 42 matters were heard and disposed or by the
Karnataka Administrative tribunal vide its judgment and order dated February 6, 2002.
Aggrieved by the judgment and order of the Karnataka Administrative Tribunal,
the Karnataka Public Service Commission preferred writ petitions before the High Court
of Karnataka at Bangalore being Writ Petition Nos.12548-12589 of 2002 which have
been disposed of by the impugned common judgment and order.
The Karnataka Administrative Tribunal concluded that the valuation of the
answer scripts could not be regarded as fair. In the facts and circumstances of the case no
distinction could be made between answer scripts validly valued and those not validly
valued. It was, therefore, necessary that all the answer scripts should be re-evaluated.
Accordingly, it directed the Karnataka Public Service Commission to get all the answer
scripts valued afresh by appointing examiners who are in no way interested in the
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candidates taking the examination. The examiners were to be appointed after verifying
their declaration that none of their relatives specified in the format of the declaration was
a candidate. The Commission was directed to erase all the code numbers and give fresh
code numbers to the answer scripts relating to the compulsory as well as the optional
subjects. It, further, directed that all answer scripts wherein more than 60% marks were
awarded must be valued by a set of two examiners. In case there was a difference
exceeding 5% of the marks in evaluation by the two examiners, the matter must be
referred to the third examiner. It also directed that Karnataka Public Service Commission
shall permit re-evaluation of answer scripts of all those candidates who seek such re-
evaluation within the time to be specified, and on such payment as may be determined. It
further obliged the Commission to furnish to all candidates marks obtained by them in all
the papers.
The High Court, however, modified the directions of the Tribunal. It came to the
conclusion that in the facts and circumstances of the case it was not necessary to get all
the answer scripts re-evaluated. It directed moderation/random review by the Head
Examiner and Chief Examiner only in regard to subjects where the same had not been
adequately done earlier. This had to be done in the manner suggested by the Public
Service Commission in para (b) of its memo dated March 27, 2002 which reads as
follows:-
“....... on the basis of random review of answer scripts done in respect of answer scripts evaluated by each Examiner average variation shall be arrived at. Wherever the average variation is less than plus or minus 20, general review of the marks awarded need not be done. However where the average difference is plus or minus 20 or more the marks awarded by such examiner shall be increased or decreased by that average in respect of each of the answer scripts evaluated by that Examiner. In case the average variation is less than plus or minus 20 but variation in respect of individual answer scripts is plus or minus 20 or more those answer scripts would be subjected to third valuation.”
The entire process of moderation was directed to be done under the supervision of
the Secretary of Karnataka Public Service Commission. It was left to the discretion of
the Secretary of the Karnataka Public Service Commission to have the moderation done
either at a two-tier level (Head Examiner and Chief Examiner) or at only one level. The
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secretary of the Karnataka Public Service Commission was directed to select and prepare
a fresh panel of Head/Chief Examiners for this purpose. The process of interviews and
selection carried out during the pendency of the applications before the Karnataka
Administrative Tribunal was declared to be illegal. The Commission was further directed
to re-evaluate the compulsory papers (English and/or Kannada) of those candidates who
had approached the High Court or Tribunal for such re-evaluation before the date of
judgment. After re-evaluation and moderation as directed, the Commission shall prepare
the list of candidates to be called for personality test in accordance with the Rules.
It would thus be seen that whereas the Karnataka Administrative Tribunal
directed that all the papers be evaluated by the examiners afresh, the High Court confined
it to re-evaluation and moderation of some papers, and that too only in those subjects
wherein that was considered necessary, applying the scaling method. A significant
finding recorded by the High Court is that there was hardly any material to raise any
suspicion about the fairness of the examiners in examining the answer scripts. Some
doubts arose when re-evaluation/moderation was done by the Head Examiner/Chief
Examiner in respect of some of the subjects. The High Court, therefore, gave directions
for a limited re-evaluation and moderation confined to some subjects only, and did not
consider it necessary to order a total re-evaluation of answer scripts of all subjects, or
cancellation of the examination itself.
It will be necessary at this stage to notice the salient findings recorded by the
Karnataka State Administrative Tribunal and the High Court. The Tribunal after noticing
the submissions urged on behalf of the parties observed that during the course of
argument it enquired of the Karnataka Public Service Commission about its willingness
to re-evaluate the answer scripts of the applicants before it. The senior counsel appearing
on behalf of the Commission submitted that the Commission was not willing to undertake
that exercise. The Tribunal subsequently suggested, after arguments were concluded, to
the Commission that it may produce the marks list of the top 50 candidates in each
category indicating the marks assigned by the Head Examiner and the Chief Examiner as
the case may be, but the Commission filed a memo declining to produce the information
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sought by the Tribunal for administrative reasons and having regard to the limited scope
of judicial review in such matters. It was also explained by counsel appearing for the
Commission that the Secretary of the Commission had gone for a training to Mussorie for
a period of 6 to 8 weeks and that the keys of the almirahs where the records had been
kept were with him, and therefore the required information could not be produced
readily.
The Tribunal also sought clarification from the Commission about the allegations
made against some of the candidates namely Rameshwarappa and his relatives. The
Commission confirmed the fact that Rameshwarappa and his relatives were seated in the
same hall to take the examination. They had opted for same optional subjects and their
answers were valued by the same examiner.
In the facts and circumstances of the case, the Tribunal formulated the following
contentions of the Petitioners which required examination by it:
“(i) That they are highly qualified persons having secured very high professional degrees such as their chosen fields and in that back ground it is inconceivable that they should have been failed in compulsory papers, the expected standards to which are not more than SSLC standards. (ii) That the valuation of the papers by the examiners are apparently erratic as not to be regarded as fair to all the candidates as for example, members of the one family like sister, brother and brother-in-law securing top ranking in the final examination indicating thereby manipulation of marks secured by them, bearing no connection between the marks given and the quality of answers; that one of the senior employees of the KPSC whose son had appeared for the examination had participated in the examination process including evaluation of the answer scripts casting a serious doubt as to the fairness in valuation of the answer scripts. (iii) That one of the model answers had been leaked out prior to the examination affecting the fairness of the examination process”.
Repelling the submission urged on behalf of the Karnataka Public Service
Commission that a candidate cannot seek revaluation of his answer scripts merely on his
own perception of good performance, the Tribunal observed that the mere fact that a
candidate may think that he has performed extremely well and yet not awarded marks
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which he rightly deserved, may not by itself justify the revaluation of the answer scripts.
However, in the light of other allegations of unfairness and arbitrariness, if found to be
true, re-examination of the answer scripts may be justified. Reliance placed by the
Karnataka Public Service Commission on the decision of this Court in Maharashtra State
Board of Secondary and Higher Secondary Education and another vs. Paritosh
Bhupeshkumar Sheth and others: AIR 1984 SC 1543 did not, according to the Tribunal,
support the case of the Commission. That decision was distinguished on the ground that
in that case the Rules specifically prohibited the authorities to entertain a claim of
revaluation. In the instant case it observed that the Rules were silent on this aspect of the
matter, and therefore, in the absence of any express prohibition the Karnataka Public
Service Commission certainly had the power to order fresh evaluation of answer scripts if
it was satisfied that there was evidence of unfairness and mal practice in the valuation of
answer scripts. In the interest of fairness, the Commission may exercise such authority
wherever necessary.
As regards allegations of unfairness in valuation of answer scripts, the Tribunal
noticed that in the case of Rameshwarappa and his relatives the answer scripts were first
valued by the Examiner and then by the Chief Examiner who awarded very high marks to
them which really enabled them to get high positions in the merit list resulting in their
ultimate selection. The Tribunal noticed the marks awarded to Rameshwarappa and his
relatives Nagaraja and Triveni which demonstrated that very high marks were awarded
by the Chief Examiner and in some cases 80% marks were awarded as against 30%
awarded by the Examiner. The Tribunal commented on the manner in which the Chief
Examiner increased the marks awarded to these candidates. This also disclosed that the
model answers prepared to maintain uniformity in the award of marks was not adhered
to, because in that event there could not be possibility of such a huge difference in the
award of marks by the Examiner and the Chief Examiner. This reflected on the fairness
in the valuation of the answer scripts and demonstrated that the answer scripts were not
valued on the basis of the model answers prepared as per the accepted standard.
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The Tribunal further commented on the refusal of the Karnataka Public Service
Commission to accept a suggestion of the Tribunal that all the answer scripts of the
applicants should be revalued. In fact the suggestion of the Tribunal that the marks list of
the top 50 candidates in each category be produced showing the marks awarded to them
by the Examiners, Head Examiner and the Chief Examiner was not accepted. The
Tribunal did not find the explanation given by the Commission to be convincing. The
Tribunal went to the extent of holding that the refusal of the Karnataka Public Service
Commission to produce the marks assigned to top 50 candidates gave rise to an adverse
inference that if such tabulated statement of marks was produced it would have gone
against the Commission.
The Tribunal also commented on the conduct of some of the officials who
shouldered heavy responsibility in the conduct of the examination. Apart from the
Secretary of the Commission, one Sadyojathiah, who was Incharge Secretary for a few
months, did not declare that his son was also taking the examination. In fact his daughter
also took the examination but was unsuccessful. This only showed that the declaration
made by the Examiners/officials were not scrutinized and enquired into with the result
that the wards/relatives of some of the officials closely associated with the conduct of the
examination also participated in the competitive examination. May be that they did not
act unfairly, but what was important was that the examination must be seemed to have
been conducted fairly.
A contention was raised before the Tribunal that the model answers were known
even before the examination was conducted and that such a model answer relating to the
compulsory subject, namely – Kannada language prepared by the Karnataka Public
Service Commission was filed in a batch of applications. The Karnataka Public Service
Commission averred that these model answers were prepared only a couple of days prior
to commencement of the valuation, but it did not deny that the model answer filed with
the applications purporting to be the model answer for the Kannada language subject was
in fact not the model answer prepared by the Commission. Though the Tribunal did not
record a categoric finding of fact that such a model answer was available to the
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candidates even before the conduct of the examination, it commented on the fact that the
model answer was available to a candidate who annexed it with his application which
demonstrated that the Commission was not able to maintain secrecy in such matters.
The Tribunal also held that the Karnataka Public Service Commission could not
deny revaluation of answer scripts if sought by any candidate who is aggrieved by the
valuation of his answer scripts. To deny a candidate the right to seek revaluation
amounted to denial of fairness to him. Therefore, in the absence of a specific rule
prohibiting re-evaluation, it would be obligatory on the Karnataka Public Service
Commission to grant such re-evaluation within a specified time after the announcement
of the result. It referred to earlier instances where the Public Service Commission had
permitted re-evaluation of the answer scripts.
On such findings the Tribunal came to the conclusion that the award of marks to
the candidates did not appear to be fair resulting in the vitiation of the merit list. But the
Tribunal following the principles laid down in Anamica Mishra and others vs. U.P.
Public Service Commission, Allahabad and others: 1990 (Suppl.) SCC 692 held that the
entire examination need not be set aside in the facts and circumstances of the case.
Fairness could be ensured if the answer scripts were revalued after taking necessary
precautions to ensure fairness. It, therefore, passed an order for fresh valuation of all the
answer scripts laying down guidelines which have been earlier referred to in this
judgment.
We may observe at this stage that the Tribunal after considering the material on
record came to the conclusion that in respect of at least three candidates namely
Rameshwarappa, Nagaraja and Triveni who were high rank holders, the marks awarded
by the Chief Examiner was much more than the marks awarded to them by the examiner.
That is how, they managed to secure high positions in the competitive examination. The
findings of the Tribunal are also borne out by the report of the Sub-Committee
constituted by the Commission to investigate the matter. The Committee found that
serious irregularities were committed by one Prof. K.S.Shivanna, Chief Examiner when
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he reviewed the marks awarded to Rameshwarappa, Nagaraja and Triveni. The said
Rameshwarappa was employed as Deputy Director of Food and Civil Supplies while
Nagaraja was his wife’s brother and Smt.Triveni and Smt. Hemalatha were two sisters of
his wife. The report of the Sub-Committee discloses that their academic record was
average. All of them had chosen the same optional subjects. In General Studies Paper I
and II and History Papers I and II all of them had chosen the very same questions for
answering and their answers were also identical. The Sub-Committee found that Prof.
Shivanna had been appointed Chief Examiner to examine answer written in Kannada
medium in the subjects General Studies and History. He had evaluated 127 answer
scripts as Chief Examiner. It was discovered that in respect of the aforesaid four
candidates he had even awarded marks for totally wrong answers. He later claimed that
by oversight such mistakes were committed. He described as bona fide errors the
awarding of more marks than the maximum prescribed. It was found that six other
candidates had been shown such favourable treatment by Prof. Shivanna, out of whom
two were ultimately selected but the remaining four could not get selected. The evidence
colleted by the Sub-Committee established that the aforesaid Rameshwarappa used to
visit the then Secretary of the Commission very frequently, while Prof. Shivanna was his
research guide for the Ph.D. programme. It also appeared from the material collected by
the Sub-Committee that after the evaluation of answer scripts, all the three had
undertaken a joint foreign trip. The Sub-committee came to the conclusion that Sri.
Monappa the then Secretary of the Commission had parted with the code numbers of the
candidates to Prof. Shivanna, who was willing to oblige Rameswarappa and some others.
The Sub-committee found that Prof. Shivanna who was Chief Examiner in respect of
answer scripts in Kannada medium, in the subjects General Studies and History, also
picked up answers given in English medium as in the case of Nagaraja and Triveni. He
sought to explain this by saying that since Prof. Raju Naidu, Chief Examiner of English
medium was away, those papers had been brought to him and he had accordingly
moderated those papers.
We do not wish to go into the details of the findings recorded by the Sub-
committee because we are informed that a proceeding is pending against Sri.
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Rameshwarappa. The selection of the alleged favoured candidates has also been
cancelled. Any observation made by us, or finding recorded in respect of the matter, may
prejudice the case of Rameshwarappa in the pending proceedings, and, therefore, we do
not wish to make any further comment on this aspect of the matter. The findings of the
Sub-committee have been noticed by us, as also by the High Court, in the context of the
challenge to the validity and fairness of the competitive examination only for that limited
purpose and not with a view to finding the guilt or otherwise of Sri. Rameshwarappa.
In the writ petitions preferred before the High Court against the order of the
Tribunal, while the selected candidates challenged the order for fresh moderation in some
subjects, the unsuccessful candidates challenged the fairness of the examination and
prayed for cancellation of the examination itself. The Karnataka Public Service
Commission justified its stand before the Tribunal.
We have earlier noticed that the Tribunal after conclusion of the hearing of the
matter, had suggested to the Commission on November 11, 2001 that it may produce the
marks awarded to the top 50 candidates in each category, by the Head Examiner and the
Chief Examiner. The Commission expressed its inability to give the aforesaid
information having regard to the scope of the proceeding before the Tribunal. It was also
stated that since the Secretary of the Commission was away on training at Mussorie for a
period of six to eights weeks and the keys of the Almirah in which the records were kept
were with him, the information could not be produced immediately. However, before the
High Court the Commission voluntarily produced the marks obtained by the top 50
candidates in each category, and with necessary particulars. The Commission also
furnished the particulars of marks obtained by all the candidates who were ultimately
selected for the personality test disclosing the marks awarded to them by the Examiner
and thereafter the Head Examiner or Chief Examiner after moderation. The High Court
directed the Commission to produce the list of candidates in whose cases the variation in
marks was plus or minus 20 or above (out of 300 marks) in a subject and also to furnish
the particulars of cases where the Chief Examiners had done random re-evaluation with
particulars of difference in marks. Accordingly, the Commission had produced necessary
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statements as required by the Court. The relevant part of the Memo filed before the
Court is as follows:-
“The Commission has placed before this Hon’ble Court subjectwise abstract of total number of answer scripts valued, number of answer scripts moderated by the Head Examiner and/or Chief Examiner and cases where the marks awarded in moderation is plus or minus 20 or more vis-a-vis the marks awarded by the examiner. The total number of cases where the variation is plus or minus 20 or more has been identified as 661. Keeping in mind anxieties expressed and apprehensions stated during the hearing of the writ petitions and the suggestions that fell from the Bench of this Hon’ble of this Hon’ble Court, the Commission has examined the entire issue in the light of the scheme laid down by the Commission regarding valuation of the answer scripts. The endeavour of the Commission has been to find a solution which would be in line with the scheme of examination prescribed by the Commission. Keeping the above objective in mind and in deference to the suggestions that emerged during the hearing of the writ petitions, the Commission is making the following offer: (a) Wherever the random review done by the Head Examiner is less than 10 per cent of the answer scripts evaluated by any examiner in any subject, the short fall would be made up examinerwise and subjectwise by random review of answer scripts to the extent of shortfall. While doing so, it will e ensured that random sampling shall not be less than 5 percent of the top-level answer scripts. (b) The Commission has always been of the view that review referred to at para 3 of the scheme of valuation is not analogous to scaling technique. It has been understood by the Commission as review of marks of particular answer script taken up for random review by the Head Examiner. However, during the hearing it has been expressed that review should be understood as scaling technique. The Commission has considered the suggestion and is of the opinion that on the basis of random review of answer scripts done in respect of answer scripts evaluated by each examiner average variation shall be arrived at. Wherever the average variation is less than plus or minus 20 general review of the marks awarded need not be done. However, where the average difference is plus or minus 20 or more, the marks awarded by such examiner shall be increased or decreased by that average in respect of each of the answer scripts evaluated by that examiner. In case the average variation is less than plus or minus 20, but variation in respect of individual answer scripts is plus or minus 20 or above those answer scripts would be subjected to third valuation.
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(c) As a result of random review if in respect of any candidate the change in marks is too generous or too adverse to the candidate, the Commission would refer such paper for third valuation. The Secretary who was holding the post at the time when central valuation was conducted in respect of examination in question is no longer with the Commission. The Commission would ensure that disinterested staff of the Commission headed by the Secretary will supervise and monitor the entire process of review and revaluation that would be undertaken as set out above”.
The High Court has noticed the fact that on March 27, 2002 this memo had been
prepared and circulated to all Counsels appearing in the matter. However, since the
service of notice of the respondents was not complete and the matter was being heard
only for the grant of interim relief at that stage, the memo was not actually filed and was
later filed on July 22, 2002. We have noticed these fats because it was argued before us
that this memo is anti-dated. The observations of the High Court must set at rest this
controversy.
On some aspects of the matter the Tribunal as well as the High Court have
recorded concurrent findings. It has been concurrently found that so far as Sri
Rameshwarappa is concerned, as also his two relatives, with the assistance of Chief
Examiner, Prof. Shivanna and the Secretary of the Commission, they were shown undue
favour and their marks were increased by Prof. Shivanna to such an extent that they
obtained high positions and were selected for appointment. In doing so, Prof. Shivanna
had committed irregularities. The High Court however has further recorded a finding
that so far as evaluation of the answer papers by the Examiners is concerned no case of
irregularity or unfairness has been established. It is only at the stage of moderation, and
that too the moderation undertaken by Prof. Shivanna, that there is evidence of
irregularity and unfairness confined to the cases of the three selected candidates, though
seven other unsuccessful candidates had also been given high marks by Prof. Shivanna.
It has, however, been concurrently held that in the facts and circumstances of the case it
was not necessary to cancel the examination. While the Tribunal felt that all the answer
scripts should be valued afresh, the High Court held that it was not necessary to do so.
The High Court was of the view that only those answer scripts required to be re-evaluated
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which had been moderated by Prof. Shivanna as also those answer scripts in various
subjects where the requisite percentage of answer scripts as required by the guidelines
were not moderated by the Head Examiner/Chief Examiner. The High Court further
directed that scaling method should be adopted in re-evaluation so that the benefit of
moderation is not confined to those candidates whose answer scripts are by chance
picked out for moderation, but the benefit is extended to all candidates who may have
similarly suffered or gained on account of the examiner being strict or liberal in awarding
marks.
Having perused the material placed before us we are satisfied that this is not a
case where the examination deserves to be cancelled. We are also satisfied that the
finding recorded by the High Court that there is really no allegation imputing unfairness
in the matter of examination of answer scripts by the examiners, is justified. The
allegations, if any, relate to the stage of moderation by the Chief Examiners and in
particular confined to the conduct of Chief Examiner Prof. Shivanna.
The High Court has very meticulously examined the material on record and it is
not necessary for us to undertake that exercise over again. The High Court had called for
and examined the following statements/extracts:-
“(i) statement showing the merit wise marks of the first 50 candidates category wise (that is GM, Group 1, 2A, 2B, 3A, 3B, SC and ST); (ii) statement showing the subject wise marks awarded by the Examiners, Head Examiners and Chief Examiners, where the difference is plus 20 and above (335 answer scripts); (iii) statements showing the subject wise marks awarded by the Examiners, Head Examiners and Chief Examiners, where the difference is minus 20 and above (in regard to 326 candidates); (iv) subject wise abstracts showing the number of answer scripts moderated by Head Examiners and Chief Examiners and the number of answer scripts where the variation on moderation is plus or minus 20 and more; (v) subject wise list of Examiners, Head Examiners and Chief Examiners”.
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The High Court found that random review of adequate number of answer scripts
had been done in the seven optional subjects (out of thirty) noticed in paragraph 31 of its
judgment. Review disclosed that variation of marks had not exceeded plus or minus 20
(out of 300 marks). The High Court, therefore, found that there was no irregularity in
review evaluation or moderation in the aforesaid seven subjects and no interference was,
therefore, called for.
It further found that in the four subjects noticed in paragraph 32 of its judgment
consisting of two papers each, there was adequate random review of answer scripts by the
Chief Examiners and there was no variation beyond plus or minus 20 marks (out of 300
marks) in some papers, and only a very few, that too marginal, in other papers. There
was, therefore, no need to interfere with the evaluation in respect of the aforesaid four
subjects. In the optional subject Chemistry also, the material placed on record did not
justify any interference with the evaluation of answer papers.
However, the High Court found that in the optional subject Agriculture and
Marketing, no Head Examiner has been appointed, and the Chief Examiner had reviewed
only three answer scripts out of 222 in Paper I and only four out of 279 in Paper II, that is
1% to 2%. Similar was the case with optional subject Criminology. In regard to the
remaining 16 optional subjects and General Studies the High Court found that the number
of answer scripts were large and the variation exceeding plus or minus 20 marks were
also substantial. The necessary particulars have been noticed by the High Court in
paragraph 34 of its judgment. The High Court has observed that the moderation in these
subjects was restricted only to the answer scripts which were reviewed, without adopting
the scaling technique of moderation by applying the upward or downward revision of all
the answer scripts evaluated by the respective examiners. Even the random review was
not done to the extent suggested in the guidelines, nor was any record maintained to show
whether moderation was done by the Head Examiner/Chief Examiner in the manner
required by the guidelines.
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The High Court further noticed that there were serious irregularities in the review
valuation by one of the Chief Examiners namely, Prof. Shivanna who had evaluated 127
answer scripts as Chief Examiner in the subject General Studies and History. The High
Court has noticed the findings recorded by the Sub-committee appointed by the
Commission to investigate into the matter. The High Court found that glaring
irregularities were committed by Prof. Shivanna in the random review done by him in
History Papers I and II and General Studies Papers I and II and, therefore, there was need
to review the process of moderation even in these subjects.
In view of its findings the High Court set aside the direction of the Karnataka
Administrative Tribunal for a fresh evaluation of all the answer scripts. The High Court
directed that moderation, or random review, will be undertaken only where such
moderation/random review was found to be inadequate. The subjects in which re-
evaluation has been ordered have been enumerated in paragraph 39(b) of the judgment of
the High Court. In so doing, the Karnataka Public Service Commission has been directed
to apply the scaling method as described in paragraph (b) of its memo dated March 27,
2002. The moderation is required to be done under the supervision of the Secretary of
the Karnataka Public Service Commission, and it is open to him to have the moderation
done at two tier level (i.e. Head Examiners and Chief Examiner) or at only one level, that
is Chief Examiner. A fresh panel of Head and/or Chief Examiner shall be prepared. The
High Court did not direct moderation/random review in respect of the subjects where it
found random review to be adequate and there was no conspicuous variation in marks
awarded by the examiner and the Head Examiner. The High Court in its impugned order
has enumerated those subjects/papers in sub-para (c) of its order.
The High Court further directed to hold fresh interviews and selection in place of
those carried out during the pendency of the applications before the Karnataka
Administration Tribunal. It further directed the Karnataka Public Service Commission to
re-evaluate the compulsory papers (English and or Kannada) of those candidates who had
approached the High Court and the Tribunal for such re-evaluation before the date of the
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judgment. The High Court has directed that a fresh list of candidates shall be prepared
and candidates invited for personality test in accordance with Rules.
We may at the outset notice the submission urged on behalf of the unsuccessful
candidates that the entire examination should be cancelled and a fresh examination be
held. We have noticed earlier the findings of the Tribunal as well as the High Court on
this aspect of the matter. It has been concurrently held by the Tribunal as well as the
High Court that it is not necessary to hold the examination afresh. However, while the
Tribunal held that all the papers should be evaluated afresh, the High Court after a
meticulous examination of the material placed on record has come to the conclusion that
it is not necessary to re-evaluate all the papers. It has upheld the evaluation of papers in
some subjects while it has directed re-evaluation in some others. The High Court did not
consider it necessary to order fresh evaluation of all the papers by the examiners, because
it did not find any allegation or evidence of partiality or favouritism against the
examiners. Even the Tribunal has not specifically recorded any finding that the
examiners acted in improper and unfair manner. The allegations really are against the re-
evaluation of papers by Head Examiners/Chief Examiners and in particular against the
conduct of Prof. Shivanna, who it is found granted abnormally high marks to his
favourite candidates so that they may rank high in the merit list and be ultimately
selected. The Tribunal as well as the High Court has concurrently held that the conduct
of Prof. Shivanna was improper and unfair and we do not find any reason to interfere
with their concurrent finding. However, we do not wish to make any further observations
since we are informed that proceedings are pending against Prof. Shivanna and necessary
action is being taken in this regard. We further clarify that the finding recorded in these
proceedings is only for the purpose of disposing of these appeals and should not prejudice
the case of the parties in the pending enquiry.
So far as the Tribunal is concerned, it has ordered fresh evaluation by the
examiners, while the High Court has directed re-evaluation only at the Head
Examiners/Chief Examiners level, that is at the stage of moderation/random review. We
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find that there is really no justification for fresh evaluation of all the answer scripts by the
examiners, and we concur with the finding of the High Court.
It appears to us that the Tribunal directed fresh evaluation of all answer scripts
because the suggestion made by the Tribunal for production of the marks assigned to the
top 50 candidates in each category was not accepted by the Commission. However,
before the High Court the relevant material was produced and the High Court had the
advantage of scrutinizing the material placed before it. Counsel for the successful
candidates is, therefore, right in his submission that if the material asked for had been
produced before the Tribunal, perhaps the Tribunal would not have drawn an adverse
inference and directed a wholesale re-evaluation of all the answer scripts.
On the question of re-evaluation by Head Examiner/Chief Examiner, the High
Court has placed the subjects into two categories viz., those where sufficient percentage
of answer scripts as required by the Rules had not been taken up for random
review/moderation, and secondly, those where the random review/moderation is either
found to be unfair (as in the case of Prof. Shivanna), or where the variation of marks
awarded by the examiner and the Chief Examiner/Head Examiner was plus or minus 20
or more. The High Court has recorded reasons for directing re-evaluation in only some
of the subjects. In regard to other subjects the High Court has found that sufficient
number of answer scripts were randomly evaluated and moderated, and further there was
no conspicuous variation in the award of marks by the examiners and the Head
Examiners. Obviously, therefore, there was no need to get such answer scripts re-
evaluated. However, where sufficient number of answer scripts were not re-evaluated by
Head Examiner/Chief Examiner as required by the Rules, the High Court was certainly
justified in directing compliance of the Rules.
Another aspect of the matter is with regard to applying the scaling method as per
the direction of the High Court. The scaling method has been described earlier in this
judgment. The selected candidates have a grievance against the application of this
method. It was submitted that it may not be proper to apply the scaling method only in
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respect of subjects where the answer scripts have to be moderated by Head
Examiner/Chief Examiner and not to other subjects where the High Court has upheld the
moderation/random checking by the Head Examiner/Chief Examiner. We have given the
submission our serious thought. The scaling method is applied only with a view to
maintain a uniform standard in the marking of answer scripts. As is well known some
answer scripts are randomly taken up for evaluation by Head Examiners/Chief
Examiners. It may be that some examiner may be very liberal and generous in awarding
marks whereas some other examiner may award much less marks for the same quality of
answer. Upon moderation, no doubt the candidate whose answer paper is moderated gets
benefit of moderation, but such benefit is not extended to other candidates whose answer
scripts may have been examined by the same examiner, but were not randomly selected
for re-evaluation by the Head Examiner/Chief Examiner. It is true that there is bound to
be some difference in the marks awarded by different examiners in the same subject. But
the need for applying scaling method arises only in cases where the variation in marks
awarded exceeds a certain level. It is, therefore, not necessary that the scaling method
should be applied in all cases. The scaling method will be applied only where the
variation in marks is plus or minus a certain level or percentage. The High Court in the
instant case has directed that scaling method shall be applied only when it is found that
average variation is plus or minus 20 or more. Wherever the average variation is less
than plus or minus 20 general review of the marks awarded need not be done. We were
told that the scaling method is now being applied in many competitive examinations held
in this country and the purpose of applying the scaling method is to bring about a certain
uniformity of standard in the matter of award of marks by the examiners. No exception
can be taken to the scaling method in principle.
In fact this Court in U.P. Public Services Commission vs. Subhash Chandra Dixit
and others: AIR 2004 SC 163, has found the scaling method to be fair since it seeks to
eliminate the inconsistency in the marking standards of the examiners. This Court has
observed:-
“There is a vast percentage difference in awarding of marks between each set of examiners and this was sought to be minimized by
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applying the scaling formula. If scaling method had not been used, only those candidates whose answer sheets were examined by liberal examiners alone would get selected and the candidates whose answer sheets were examined by strict examiners would be completely excluded, though the standard of their answers may be to some extent similar. The scaling system was adopted with a view to eliminate the inconsistency in the marking standards of the examiners.”
Then remains the question as to whether it will make any difference in the instant
case if the scaling method is not applied to subjects where valuation and revaluation has
been upheld by the High Court. In our view, it will make no difference because the High
Court has not found it necessary to direct re-evaluation of answer scripts in those subjects
where the average variation was not found to be more than plus or minus 20%. Thus, the
subjects in which the High Court has not directed re-evaluation are those subjects were in
any case the scaling method would not be applicable because the average variation of
marks has been found to be within the prescribed parameter. We, therefore, uphold the
direction of the High Court to apply the scaling method in re-evaluation of answer scripts
pursuant to the order of the High Court.
No doubt counsel for the successful candidates submitted that it was not necessary
to apply the scaling method as the same purpose can be achieved by the procedure
already prescribed. It was submitted that the percentage 5 or 10% as the case may be for
random evaluation is the minimum prescribed. There is nothing which prevents the
random re-evaluation of a larger percentage of answer scripts. There was, therefore, no
need to apply the scaling technique. This submission must be rejected because even if
answer scripts more than the percentage prescribe are reviewed by Head Examiner or
Chief Examiner, that will not achieve the purpose for which the scaling technique is
adopted, because the scaling technique is confined to award of marks by examiners in the
same subject who are either too liberal or too strict in awarding marks with the result that
the average variation is more than plus or minus 20 marks. If the desired result is to be
achieved all the answer papers examined by a particular examiner will have to be re-
evaluated. As between the two options, we find the scaling method to be more practical
and effective.
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The counsel for the successful candidates as well as counsel appearing on behalf
of the Karnataka Public Service Commission submitted that it is not necessary even to re-
evaluate the answer scripts in some of the subjects as directed by the High Court because
the findings of the Sub-committee appointed by the Karnataka Public Service
Commission is clear and categoric. The Sub-Committee which inquired into the
irregularities committed in the conduct of the examination found that the irregularities
were committed by Prof. Shivanna who awarded very high marks as the Chief Examiner
to his favourite candidates namely, Rameswarappa and the members of his family. There
were 10 cases which were identified for favoured treatment, out of whom three were
selected. In all Shivanna had moderated only 127 answer papers, therefore, it was not
necessary to re-evaluate the other answer scripts except those re-evaluated by Prof.
Shivanna as the Chief Examiner. It was also submitted on behalf of the successful
candidates that the guidelines provided that random review or random sampling should
not be less than 5% of the top level answer scripts and over all random review should not
be less than 10% of the answer scripts evaluated by each examiner. However, according
to them, the High Court has increased the percentage to 20% instead of 5 to 10%.
There is no merit in either of the two submissions. The High Court has found as a
fact that in some subjects random review was not done to the extent prescribed in the
guidelines (5% of top level answer scripts and over all random review of 10%). No
minutes or record were maintained to show whether moderation was done by the Head
Examiners/Chief Examiners in the manner required by the guidelines. In these
circumstances, one cannot find fault with the direction of the High Court for re-
evaluation of answer scripts in subjects in which moderation/random review was not
done in accordance with the guidelines.
The submission that the guidelines earlier provided only for a random review to
the extent of 5 to 10% which has now been increased to 20%, is based on a factually
wrong assumption. The High Court in paragraph 35 of its judgment has noticed that the
random review prescribed under the guidelines was to be done in respect of 5% of top
level answer scripts and 10% over all random review. Even the memo filed by the
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Karnataka Public Service Commission and accepted by the High Court assured that
whenever random review done by the Head Examiner was les than 10% of the answer
scripts evaluated by any examiner in any subject, the shortfall would be made up
examiner wise and subject wise by random review of answer scripts to the extent of
shortfall. While doing so it will be ensured that random sampling was not be less than
5% of the top level answer scripts. We have, therefore, no doubt that the direction of the
High Court has not deviated from the guidelines. Moreover, 5% or 10% as the case may
be is the minimum required percentage of random review. It can always be more than the
minimum prescribed.
We shall now notice some of the other submissions advanced before us. It was
argued before us that the key answers had been leaked out. The High Court has noticed
the contention advanced before it and observed that the same was neither pursued nor
established. The facts disclosed that the model answers were prepared only a few days
before the actual commencement of the valuation. In the instant case, valuation
commenced on May 17, 1999 while the examination was held between April 9, 1999 and
May 3, 1999. There was, therefore, no question of the model answers being leaked out
earlier so as to be available to the examinees on the dates of examination.
It was also argued before the High Court and faintly submitted before us that the
writ petitioners were students who had a good academic record and, therefore, it was
unbelievable that they would have failed in compulsory papers English and Kannada
which were of SSLC level. It was explained by the Commission that it is not as if all
writ petitioners had failed in compulsory subjects English and Kannada. Only three had
failed in English and one had failed in Kannada. The other writ petitioners had passed in
the compulsory subjects English and Kannada, but since they had not secured high marks
over all they were not called for personality test. In any event, the Karnataka Public
Service Commission had agreed to re-evaluate the compulsory papers of the
applicants/petitioners who had already approached the Tribunal or the High Court. The
High Court has accepted the submission on behalf of the Commission and clarified that
395
the relief in regard to re-evaluation of compulsory papers should be restricted to those
candidates who have approached the Tribunal or the High Court, and not to others.
A submission was sought to be urged before us on behalf of the unsuccessful
candidates that even the interview conducted for selection of candidates was not proper
inasmuch as 350 candidates out of 390 were awarded 195 marks each. Counsel for the
successful candidates submitted that such a contention was not raised either before the
High Court or the Tribunal and there is no pleading or finding on this aspect of the
matter. It is not necessary for us to examine this question. The High Court has directed
holding of fresh interviews on the basis of marks obtained after re-evaluation of answer
scripts in accordance with the directions of the High Court. Since fresh interviews will
be held, the grievance of the aforesaid petitioners does not subsist.
Having considered all aspects of the matter, we are satisfied that no inference by
this Court in these appeals is called for. The High Court has taken are to safeguard the
interest of all concerned and to rule out the possibility of unfairness in the re-evaluation
of the answer scripts. The directions made by the High Court are adequate to deal with
the peculiar facts of this case.
We, therefore, dismiss all the appeals and affirm the judgment and order of the
High Court.
***
[Note: I.A. filed by one of the candidates Sri. L.Arun Pandit, for directions to appoint an expert committee for revaluation etc., in C.A.Nos.6265-6275/2005 (M.R.Ravi & Ors. Vs. KPSC & Ors. has been dismissed by the Hon’ble Supreme Court as per order dated 3.2.2006]
396
IN THE KARNATAKA ADMINISTRATIVE TRIBUNAL AT BANGALORE APPLICATION NO.1241 OF 2004
D.D. 21.6.2004 REVIEW APPLICATION NO.16 OF 2005
D.D. 1.8.2005
THE HON’BLE MR. T.Y.NAYAZ AHMED, ADMINISTRATIVE MEMBER Sri.Govind Jadhav ... Applicant Vs. The Karnataka Public Service Commission & Anr. ... Respondents Examination Malpractice: Rule 14 of K.P.S.C. (Conduct of Service Examination) Rules, 1965 – The applicant working as Chief Officer, Town Panchayat, appeared for General Law Part-I and General Law-II Examinations 2003 I Session Departmental Examinations conducted by the Commission – It was noticed that the applicant had committed Examination malpractice by getting the answers written in the answer book by some third person – After issuing notice and holding necessary enquiry the applicant was found guilty of examination malpractice and penalty of debarring him permanently from appearing for Examination conducted by the Commission and recommended to take disciplinary action against him as per Rules – The applicant challenged the said order before KAT which dismissed the application – Pursuant to the order passed in the writ petition filed by the applicant, the applicant filed Review Application which was also dismissed by KAT. Held: That there was sufficient compliance with the procedure before imposing the penalty, that the charge of examination malpractice was duly proved and that the penalty imposed was commensurate with the gravity of the charge proved.
ORDER IN A.NO.1241 OF 2004
The Applicant Sri Govind Jadav, who is the Chief Officer of the Town Panchayat,
Belagi, has questioned the decision of the Respondent-1 in his Order dated 29-11-2003 at
Annexure-A2, wherein the Applicant has been debarred from taking departmental
examination during the remaining part of his service. The Respondent-1 has also
suggested to the Government to initiate disciplinary action against the Applicant.
2. I have heard both the parties. The Applicant had appeared for the departmental
examination conducted by the Respondent-1 in the 1st Session of 2003. The Applicant has
written examination for General Law, Part-I and II. The Respondent-2 discovered that the
397
answers written for General Law Part-I and II are fabricated answers. The Respondent-2
has come to this conclusion on the basis that the hand -writing on the covering sheet of
the answer booklet does not tally, with the hand -writing of the answers in the booklet.
After having conducted a formal enquiry, the Respondent-2 has passed the impugned
order and imposed the penalty as mentioned above.
3. The learned Counsel for the Applicant argued that the Applicant has written the
answers in his own hand -writing and handed –over the answer booklet to the exam
Supervisor. She further contended that while sorting out, perhaps the officers of the
Respondent-1 office could have mixed –up the answer sheets and enclosed answers sheet
which were not written by the Applicant. She further argued that if the Applicant was
caught doing malpractice at the time of examination, the Respondents could have
resorted to levying of any penalty. She was of the firm view that the penalty imposed is
unjust and excessive. She urged that at least the applicant should be allowed to write the
examination in the coming session since he is in the run for promotion, for which he has
to pass the departmental examination prescribed.
4. The learned Counsel for Respondent-1 contended that a detailed enquiry has
been conducted and statement of the Applicant has been obtained wherein he has agreed
that the hand-writing of the matter written on the covering sheet of the answer book-let is
written by the Applicant and, the hand-writing and the answers in the sheets enclosed to
the booklet are not written by him.
5. With a view to see the original answers booklet, I had asked the learned Counsel
for Respondent-1 to get the relevant records. Today, i.e., on 16-06-2004, the answer
booklet of the Applicant was shown to me in the open Court. It is very clear from the
answer booklet that the hand - writing of the details written on the covering sheet of the
Booklet No.0550324, does not match with the hand -writing of the answer sheet written
in the subsequent pages of the booklet. During the course of the enquiry conducted by
the Respondent-1, the Applicant has agreed that whatever has been written in the
covering sheet of the answer booklet has been written by him and the subsequent answers
398
written are not written by him. It is also discovered from the records that the answer
booklet which was supplied to the Applicant in the examination hall was bearing
No.0653577. The Applicant had also taken additional answer sheets during the course of
the examination. It is quite surprising to note that the answer booklet No.0550324
handed over by the Applicant after the conclusion of exam time is not the one which was
supplied to him for writing answers during the time of examination. Therefore, it is
abundantly clear that the Applicant has fraudulently replaced a totally different answer
booklet in which, some-other person has written answers to various questions on his
behalf. How the Applicant could manage to do so within a period of examination time is
a mystery. There is no doubt the Applicant has committed a serious fraud and the
punishment imposed by the Respondent-1 is proper and exemplary.
6. I may also mention here that the Applicant has almost completed his service. He
is 55 years of age, he has not been able to pass the examination prescribed so far. I am
sure he must be an incompetent officer, he deserves the punishments imposed by the
Respondent-1 and he shall also pay the cost of Rs.5,000/- to the Respondents who are
made to waste the precious time and public funds. Respondent-2 shall also initiate
disciplinary action as suggested by the Respondent-1 in the impugned order immediately
and before the Applicant retires from service.
7. Accordingly, the Application is dismissed.
***
399
ORDER IN REVIEW A.NO.16 OF 2005 IN
A.NO.1241 OF 2004
This Application is for a review of this Tribunal’s order dated 2.6.2004 in
A.No.1241/2004. In fact the Applicant had challenged the aforementioned order of this
Tribunal before the High Court of Karnataka in W.P.No.36746/2004. The High Court of
Karnataka disposed of the Writ Petition on 9.12.2004 on the solitary ground that this
Tribunal did not consider the case of the Applicant from the point of view of affording an
opportunity of hearing by the 1st Respondent which tantamount to the violation of
principles of natural justice. Therefore, by the same order the High Court of Karnataka
advised the Applicant to seek a review of this order before the Tribunal. Hence, this
Review Application.
2. The learned Counsel for the Applicant has raised the following points.
(a) That the Notice dated 8.8.2003 of the 1st Respondent to appear for
enquiry before it on 18.8.2003 was actually received by the Applicant on 27.8.2003 therefore, he could not participate in the enquiry affectively.
(b) That the Applicant was not caught during the course of
examination indulging in malpractice. (c) That the 1st Respondent does not have Authority to recommend
for disciplinary action against the Applicant. (d) That the punishment imposed by the impugned order is excessive,
and (e) The answer scripts have been fraudulently included by the 1st
Respondent at the behest Ex-president of Town Panchayat, Biligi, who had mutual animosity against the Applicant.
3. I had perused the records of the 1st Respondent before passing the orders under
review. It is a fact that the notice dated 8.8.2003 of the 1st Respondent to appear before it
on 18.8.2003 has actually reached the Applicant by post on 27.8.2003. Non-the less, the
Applicant himself has appeared before the 1st Respondent on 29.8.2003 and he has
subjected himself to a formal enquiry. In that he has given in writing that the answer
400
scripts was not written by him. His statement has been recorded and it is on the file of
the Respondent.
4. The learned Counsel for the Respondent submitted that, the formal enquiry
normally done in all such cases is that the answer scripts are shown to the delinquent
officials. Further, to match or compare the handwriting, at the time of enquiry he/she is
made to write a few lines on a separate sheet. In fact as per the record and the written
statement of the Applicant before the 1st Respondent dated 29.8.2003 such an exercise is
done. The learned Counsel for the Respondent further submitted if the handwriting of the
answer scripts and the handwriting of the write-up taken during the enquiry vary, such
answer scripts are considered as enclosed fraudulently. In our considered view, the
Principles of natural justice is fully met in this case.
5. Very strangely the Applicant has brought, in this Review Application an
extraneous issue in support of his case this time. The Applicant has alleged that while he
was working at Bilagi Town Panchayat, as a Chief Officer, the 3rd Respondent who is an
Ex-President of the Town Panchayath, Biligi, had developed animosity and he is
responsible for the fraudulent enclosure of written script in connivance of the 1st
Respondent. Such a wild allegation, in our view, is extraneous and perverted. Moreover,
the applicant had not made 3rd Respondent as a party and urged this point in his original
application, nor he has said the same before the 1st Respondent on 29.08.2003. Not even
in his written statement dated 29.08.2003 given to the 1st Respondent on the day of
enquiry he has whispered about the same. I cannot entertain such a plea in a review
application. Moreover, in my considered view, the Applicant is trying to make a
desperate attempt to wriggle out of the punishment by making such an incomprehensible
and perverted contention and, therefore, I reject such a plea.
6. As regards the other contention that the Respondent did not have the power to
recommend for disciplinary action, the learned Counsel for the Applicant has produced
the proceedings of the 1st Respondent based on which the impugned order was issued. In
401
that the amended Rule 14/Regulation of the Commission is referred to. The said
regulation reads thus:
“14 . A candidate who is found guilty by the commission of impersonation or of submitting fabricating document or documents which have been tampered with or of making statements which are incorrect or false or of suppressing any material information or of using or attempting to use unfair means in the examination hall or otherwise resorting to any other irregular and improper means in connection with any Service Examination, such candidates may in addition to rendering himself liable to a criminal prosecution: a) be debarred either permanently or for a specified period by the Commission from admission to any examination or appearance at any interview held by the Commission for selection of candidates; and b) be subjected to disciplinary proceedings.”
7. The 1st Respondent undoubtedly has the power to recommend for disciplinary
action as per Regulation-14(b). Hence, the contention of the Applicant is unfounded.
8. Viewed this case holistically, in my view the principles of natural justice is not
violated in this case. Furthermore, all other contentions are in my view are unfounded,
hence the Review Application stands rejected. The Applicant shall pay a cost of
Rs.5000/-.
Accordingly, Application is disposed of.
***
402
IN THE HIGH COURT OF KARNATAKA AT BANGALORE W.Ps.NO.22736, 20106, 22247, 22428 AND 23262/2005 (S)
D.D. 28.10.2005
THE HON’BLE MR. JUSTICE B.S.PATIL Kum. Jayashree B.K. & Others ... Petitioners Vs. The University Grants Commission & Ors. ... Respondents Jurisdiction of Administrative Tribunal: The Commission initiated recruitment to the post of Lecturer in English prescribing qualification as per C&R Rules as per which candidates who do not get exemption from passing NET/SLET should have completed M.Phil by 31.12.1993 or have submitted thesis for Ph.D. in the concerned subject upto 31.12.2002 – The petitioners filed writ petitions for quashing UGC Regulation 2002 which prescribes the above qualification – The Commission resisted the case by contending among other things that as the matter relates to Civil Services of the State falls within the jurisdiction, power and authority of State Administrative Tribunal and the High Court has no jurisdiction – Upholding the contention of the Commission the writ petitions were dismissed. Held: The Administrative Tribunal as per Section 15 shall exercise the jurisdiction, power and authority in relation to recruitment and matters concerning recruitment to any Civil Service of the State or any Civil Posts under the State. Cases referred: 1. ILR 1992 KAR 2629 - Ganganarasaiah Vs. State of Karnataka 2. ILR 2002 KAR 4123 – M.S.Ganesh & Others Vs. H.K.Subramanya & Others
ORDER In all these writ petitions, common questions are raised and therefore they are
clubbed, heard together and disposed of by this common order.
2. Petitioners are aggrieved by the action of the 2nd respondent – Karnataka Public
Service Commission in issuing the notification dated 12.7.2005 inviting applications for
the post of Lecturer in the Government First Grade Colleges in the State of Karnataka by
imposing a clause at para-7 of the notification interalia providing that the candidates who
403
have completed M.Phil by 31.12.1993 or have submitted thesis for Ph.D. in the
concerned subject upto 31.12.2002 are only exempted from passing National Eligibility
Test. It is the contention of the petitioners that this exemption ought to have been made
available without fixing any cut off date as is resorted to in the notification published
inviting applications. It is in this background, contending that the said cut off date is
incorporated by virtue of the notification issued by the University Grants Commission,
the petitioners have challenged the said notification dated 31.7.2002 issued by the UGC.
Petitioners have also sought for a direction to the 2nd respondent not to insist upon the cut
off date as stipulated in the notification inviting applications.
3. Several contentions are urged on merits by the learned counsel appearing for the
petitioners.
4. Respondent-KPSC having entered appearance has filed the statement of
objections. Learned counsel appearing for the KPSC Sri. A.N.Venugopala Gowda, has
raised a preliminary objection regarding the maintainability of this writ petition having
regard to the alternative remedy available before the Karnataka Administrative Tribunal.
In that view of the matter, I have heard the learned counsel appearing for the parties on
the maintainability of the writ petition.
5. Learned counsel for the petitioners Sri. Hubli submits that the cut off date
prescribed as per the notification inviting applications is pursuant to the notification
issued by the UGC and as the petitioners have also called in question the said notification
issued by the UGC, this writ petition is maintainable. He further submits that the
Karnataka Administrative Tribunal does not have the jurisdiction to examine the validity
or correctness of the notification issued by the UGC and therefore the jurisdiction of this
Court under 226 is rightly invoked. He also contends that the Special Recruitment Rules
1993 have not been amended and the rules now brought into force in the year 2002 are
only general in nature and cannot have the effect of amending the 1993 Rules. Per
contra, learned counsel Sri. Venugopal taking me through the provisions contained u/s 15
of the Administrative Tribunal Act r/w Section 28 and referring to the Rules framed by
404
the State Government prescribing the cut off date has contended that the stipulation in
clause 7 of the notification issued by the 2nd respondent-KPSC inviting applications is in
pursuance to the amendment brought about to the Rules called the Karnataka Education
Department Services (Collegiate Education Department) (Recruitment) (Amendment)
Rules 2002 which have come into force with effect from 9.1.2003. He refers to the
proviso to Sub clause 2 of Rule 9 providing for direct recruitment of Lecturers. The said
proviso provides that candidates who have completed M.Phil or have submitted Ph.D.
thesis in the concerned subject upto 31.12.1993 are exempted from appearing in the NET
examination. In the statement of objections filed, the respondent-KPSC has taken up a
stand that in pursuance to the aforementioned rule, the notification issued inviting
applications has stipulated the cut off date providing exemption to only such of the
candidates who have completed M.Phil by 31.12.1993 or have submitted Ph.D. thesis to
the university in the concerned subject on or before 31.12.2002. He therefore contends
that the entire exercise undertaken by the respondent-KPSC is in relation to the
recruitment to the posts in the service of the State and the process is initiated pursuant to
the Rules framed in this regard which have interalia provided for fixing the cut off date
for providing exemption from passing any national eligibility test and therefore the
petitioners are required to approach the Karnataka Administrative Tribunal for
adjudication of their grievance if any. Supporting his contention, he has drawn the
attention of the court to the judgment in the case of M.S.Ganesh and others vs.
H.K.Subramanya and others (ILR 2002 KAR 4123) wherein this Court has held that the
Administrative Tribunal as per Section 15 shall exercise the jurisdiction, power and
authority in relation to recruitment and matter concerning recruitment to any Civil
Service of the State or any Civil Posts under the State. It is also held therein that the
validity of the Rules in matters relating to the Civil Services of the State can also be gone
into by the Tribunal. Even the applicants to a post, being prospective candidates for the
civil posts under the State and who are denied the chance of applying and competing for
appointment to the post could as well maintain applications challenging the Rules. Thus,
it is his contention that the petitioners can avail the remedy before the Administrative
Tribunal and the writ petitions are not maintainable. He has also placed reliance on yet
405
another judgment in the case of Ganganarasiah vs. State of Karnataka (ILR 1992 KAR
2629).
6. I have heard the learned counsel appearing for the parties. The essential
grievance made by the petitioners is directed against the action of the respondent-KPSC
in incorporating a clause in the notification inviting the applications interalia providing
for exemption from passing national eligibility test in respect of candidates who have
completed M.Phil by 31.12.1993 or who have submitted Ph.D. thesis in the concerned
subject upto 31.12.2002. Petitioners claim that they have also completed M.Phil. though
subsequent to the cut off date namely 31.12.1993 and they should also be exempted from
the rigour of passing the national eligibility test. This is essentially a grievance that can
be the subject matter of adjudication before the Karnataka Administrative Tribunal
having regard to the fact that the post for which the notification is issued is that of a
Lecturer in Government Colleges. The relevant clause incorporated in the notification is
pursuant to the amendment brought about as per the Karnataka Education Department
Services (Collegiate Education Department) (Recruitment) (Amendment) Rules 2002.
Rule 6 of these rules provide for cut off date which is reflected in the notification inviting
applications. Therefore, the grievance of the petitioners, in essence is, against the
notification and the rules framed. Merely because the challenge is incidentally made to
the notification issued by the UGC, it cannot be a ground to entertain this petition, as the
main grievance is directed against the action of the respondent-KPSC which is traceable
to the recruitment rules framed. Therefore, reserving liberty to the petitioners to
approach the Karnataka Administrative Tribunal to air their grievances, these writ
petitions are rejected as not maintainable with no order as to costs.
Learned counsel appearing for the KPSC-Sri. A.N.Venugopala Gowda is
permitted to file his vakalath in W.P.No.23262/2005 within three weeks from today.
Government Pleader is permitted to file memo of appearance within 6 weeks.
***
406
KERALA PUBLIC SERVICE COMMISSION
407
AIR 2001 SUPREME COURT 2010 CIVIL APPEAL NOS.3569-3580 OF 2001 & CONNECTED CASES
D.D. 3-5-2001 HON’BLE G.B.PATTANAIK, S.N.PHUKAN AND B.N.AGRAWAL, JJ
K.G.Ashok & Others ... Appellants Vs. Kerala Public Service Commission & Ors. ... Respondents Recruitment : Condition that making false statement in appliclation entails rejection of application whether valid? – Yes.
(A) Constitution of India, Arts. 309, 14 – Kerala State and Subordinate Service Rules (1958) R.3 – Rules of procedure framed by Public Service Commission, R.22 – appointment – Notification by Public Service Commission – Imposing restriction on making application in respect of more than one district in response to one and same notification – Does not amount to denial of opportunity to candidate for applying to any post – Not violative of Art.14 – Candidates securing appointments on making false declaration and applying to more than one district in contravention of advertisement notification – Not entitled to relief even on equitable grounds.
In the instant case the notification inviting applications for districtwise selection
for the posts of Junior Inspector Scale II, incorporated the specific instructions to the effect that candidates should not send applications for the post in more than one district and his failure to observe the same would entail rejection of application of such a person apart from taking other actions like initiation of disciplinary action, removal from service etc. Though a candidate is prohibited from applying to more than one district he is free to choose any district of his choice and thus the only thing is that the candidate is not entitled to apply for the same post in more than one district at a time. Here, the right of the candidate is not curtailed as he/she is not prevented from choosing the district of his/her choice. At the same time, if every person is permitted to apply for all districts the number of applications received by the Commission will be 14 times the number of applications now being received with the result that the Commission will be doing a futile exercise of selection work, in the other 13 districts, as a candidate can after all accept appointment in only one district. Considering all these aspects the Commission has imposed the restriction on candidates from applying in more than one district in response to one and the same notification. Thus the restriction does not tantamount to the denial of opportunity to a candidate for applying to any post. [Paras 12, 13]
Further it has been simply pleaded that Note-II of the Gazette notification was
violative of Art.14 of the Constitution. Neither before the High Court nor before the Supreme Court necessary facts showing discrimination have been pleaded inasmuch as there is nothing to show that more meritorious persons have been deprived of employment whereas persons of inferior merit have been selected. Apart from the fact that the necessary facts leading to discrimination have not been pleaded, there is absolutely no material to show that a case of discrimination is made out. It cannot be said
408
that Note-2 of Gazette notification restricting the choice of candidates to one district is violative of equality clause enshrined in Arts.14 and 16 of the Constitution. Since the restriction contained in Note-2 is not violative of Article 14 of the Constitution, therefore, the question of reading down the same does not arise.
[Paras 18, 19] In the concluding portion of one short notification dated 11-4-1996 it was specifically mentioned that for more details a candidate was required to refer to concerned notification meaning thereby the aforesaid notification dated 2.4.1996. Moreover it has been further stated in the short notification that model application form has been appended in the Gazette notification again meaning there by notification dated 2-4-1996. In these cases some of the appellants in their application form, in reply to column 8(b), which required a candidate to state whether he had applied in more than one district, had stated ‘No’ and others ‘Yes’ though all of them had applied in more than one district. In view of language in the short notification a candidate was obliged under law to look into the Gazette notification dated 2-4-1996, more so when in the application form which was duly filled up by the appellants, it was specifically enumerated that “candidates should read the relevant Gazette notification inviting applications before filling up application form”. Thus the plea that 436 candidates including appellants out of 1270 candidates applied for more than one district as they were misled by the short notification dated 11-4-1996 and were not aware of the penal provision contained in Note-2 of Gazette notification dated 2-4-1996 would not be tenable. Therefore the order of Public Service Commission rejecting the candidature of the appellants, candidates, who have applied to posts for more than one district and made false declaration, would not be liable to be interfered with. [Paras 21, 22, 24] The said candidates would not also be entitled to relief on grounds, merely because they had crossed the upper age limit and number of vacancies are available. [Para 23]
***
409
IN THE HIGH COURT OF KERALA AT ERNAKULAM OP NO.12957 OF 1999 (P)
D.D. 14.8.2003
THE HON’BLE MR. JUSTICE RAMACHANDRAN M.V.Muraleedharan Nair & Ors. ... Petitioners Vs. Kerala Public Service Commission & Anr. ... Respondents Examination: Errors in Question Paper: The petitioners who participated in an examination conducted for selection to the post of Villageman alleged that a large number of questions have no intelligible answers, that the standard of the questions was so high etc. – The High Court in view of the fact that the three questions which were described as erroneous have been deleted for assessment of merit and the marks redistributed and the selection was of 1999 and a rank list had been already exhausted dismissed the writ petition.
JUDGMENT Petitioners had participated in an examination conducted by the Kerala Public
Service Commission for selection to the post of Villageman. A copy of the question
paper that had been issued to the candidates is produced as Exhibit P1 and it is submitted
by the petitioner that a large number of the questions had no intelligible answers to be
given at all. The other criticism was that the standard of the questions was so high,
especially when the minimum qualification for responding to the post was fixed as pass
in seventh standard. However, at this distance of time, no reliefs could be granted to the
petitioners, since the selection was of 1999 and a rank list had been prepared thereafter
the standing counsel for the PSC submits that the list stands exhausted.
2. The learned counsel for the petitioner submits that there should be a direction to
the PSC to adopt a realistic approach in the matter of setting up of the question papers
and the purpose of filing the writ petition was to draw the attention of one and all that the
aspirants of job were being given a raw deal.
3. The counter affidavit filed by the respondents discloses that the PSC has a set
method whereunder examination are to be held in utmost secrecy. The experts in the
410
field are identified and they are given the necessary instructions to prepare the question
papers to assess the general awareness and competitiveness of the candidates. Such
question papers are printed and distributed to thousands of examinees in District Centres
and utmost secrecy is maintained and till such time the distribution is made, even the
members of the Commission do not get an opportunity to look into the papers. It may not
be proper or practical for the PSC to verify the questions in the question papers submitted
before hand for obvious reasons. It is submitted that among the thousands of candidates
who had participated in the test, these petitioners alone have come with an original
petition. According to the counsel, it is sufficient to indicate that general standard of the
candidates were high and there were no objectionable features as had been highlighted. It
is also submitted that the three questions which were described as erroneous in the
original petition had been deleted for assessment of merit and the marks re-distributed.
4. I am of the view that satisfactory explanations have been given by the PSC and it
will be superfluous to issue directions to them since the experience gained by them over
the years might be substantial and sufficiently good enough to make possible for them to
take care of the situation. The complaints of the petitioners also are likely to be taken
notice of as feed back, the counsel assures, as always they are trying for excellence and
thoroughness in selecting the best candidates.
The original petition is dismissed.
***
411
IN THE HIGH COURT OF KERALA AT ERNAKULAM WP (C) NO.36104 OF 2003 (W)
D.D. 17.11.2003
THE HON’BLE MR. JUSTICE M.RAMACHANDRAN Sanan T.G. & Ors. ... Petitioners Vs. The State of Kerala & Ors. ... Respondents Recruitment: Physical Efficiency Test and Physical Test: Petitioners candidates for the post of Excise Inspectors were unsuccessful in the Physical Test – Challenged the result on the ground that there were irregularities in the selection and sought for fresh test. The High Court dismissed the writ petition with the following observations:
“ ........ As pointed out by the standing counsel for the respondents, physical standards and efficiency can be improved by constant practice and ability shown at particular context had been taken as yardstick. It might be possible at a later stage that persons might be able to show improvement. Therefore, it would be unfair to concede to their request that they should be subjected to a fresh test. A consideration of appeals in such circumstances might be improper. The grievances are not capable of being redressed through Article 226 of the Constitution of India.”
JUDGMENT During the year, 1998, the Public Service Commission had notified selection to
the post of Excise Inspectors. Petitioners are graduates or post graduates and had come
out successful in written test. Physical efficiency test and minimum physique were
essential qualifications for being considered for appointment to the post. In the physical
test, petitioners did not come out successful and the Writ Petition had been filed in the
aforesaid context pointing out that the assessment of their prowess had not been made
impartially and they had been subjected to discrimination.
2. Dr.Kylasanathan Pillai, appearing for the petitioners submits that the tests were
held in different venues and so far as the test at Chandrasekharan Nair Stadium was
concerned, majority of the persons who appeared for the physical test was declared
412
unqualified. The approach adopted by the fourth respondent who had been entrusted with
the job was unfriendly. Most of the decisions taken by him were arbitrary and
discouraging. There was even difference of opinion between the judges. The petitioners
have referred to a few circumstances which according to them, indicate that a just
selection had never been carried out.
3. However, the allegations are too vague and cannot be countenanced or expected
to be adopted, in an impartial selection. It may be difficult for petitioners to digest the
fact that they had been adjudged as failed. Almost in identical circumstances, I had
occasion to hear another Writ Petition (W.P.(C) No.35560 of 2003) filed by a few
candidates who had also failed to secure pass marks. The above Writ Petition had been
disposed of after hearing the learned Standing Counsel for the P.S.C. As in the above
case, it is pointed out by the Standing Counsel for the Commission that there were no
irregularities about the selection reported. If there were any irregularities reported, then
only enquiries were necessary.
4. Counsel refers to the appeals that had been filed by the petitioners and points out
that they were refused to be accepted. Request is that a fresh test may be held so as to
assess their merits, de novo. As pointed out by the standing counsel for the respondents,
physical standards and efficiency can be improved by constant practice and ability shown
at particular context had been taken as yardstick. It might be possible at a later stage that
persons might be able to show improvement. Therefore, it would be unfair to concede to
their request that they should be subjected to a fresh test. A consideration of appeals in
such circumstances might be improper. The grievances, are not capable of being
redressed through Article 226 of the Constitution of India.
The Writ Petition is dismissed.
***
413
IN THE HIGH COURT OF KERALA AT ERNAKULAM WRIT APPEAL NO.1053 OF 2004
AGAINST THE JUDGMENT IN WPC 15155/2004 DATED 25.5.2004 D.D. 10.6.2004
THE HON’BLE THE CHIEF JUSTICE MR.N.K.SODHI
AND THE HON’BLE MR. JUSTICE P.R.RAMAN
M.Ramla Beevi & Ors. ... Appellants Vs. State of Kerala & Ors. ... Respondents Recruitment: Validity of Rank List: The rank list of Lower Division Clerks was published by the Commission on 16.5.2000 and it was valid for a period of 3 years as per the Kerala Public Service Commission Rules of Procedure – The rank list was extended till 4.2.2004 before it expired – After the rank list expired writ petition filed for extending the same was dismissed on the ground that the rank list already expired could not be extended after the date of expiry – The said decision was confirmed in the Writ Appeal. Held: Validity of a rank list can be extended during its currency in order to keep it alive and not thereafter.
JUDGMENT The appellant before us are persons whose names appear in the rank list published
the Kerala Public Service Commission for appointment to the post of Lower Division
Clerks in various departments. The rank list was published on 16.5.2000 and as per the
Kerala Public Service Commission Rules of Procedure the same was valid for a period of
three years. Before the rank list could expire, the Commission extended the validity of
the rank list till 4.2.2004. The rank list has now expired. Appellants filed a writ petition
out of which the present appeal has arisen with a prayer that the Commission be directed
to extend the rank list as was done in the case of some other candidates. The learned
single Judge dismissed the writ petition on the ground that the rank list already stands
414
expired and that the same could not be extended after the date of expiry. It is against this
order that the present appeal has been filed under Section 5 of the Kerala High Court Act.
2. We have heard learned counsel for the parties and are of the view that there is
no merit in the writ appeal. Admittedly, the rank list expired on 4.2.2004 and the
Commission had not extended its validity before that date. According to 5th proviso to
Rule 18 of the aforesaid Rules the Commission has the power to extend the validity of a
rank list to keep the same alive. It would obviously mean that the validity of a rank list
could be extended only during its currency in order to keep it alive and not thereafter. In
the instant case, the rank list expired on 4.2.4004 and it cannot now be extended so as to
bring life to a list which has already expired.
3. There is yet another aspect of the matter. The appellants want a writ of
mandamus to be issued to the Commission to extend the validity of the rank list. Before
a writ of mandamus could issue, it is necessary for the appellant to show that they have a
legal right for the enforcement of which they have prayed for and that there is a legal
duty on the Commission to carry out such an obligation. Learned counsel for the
appellants could not point out any provision which could confer a right on them to claim
that the rank list should be extended. In the absence of any such right they are not
entitled to claim that a writ of mandamus be issued to the Commission to extend the rank
list.
For the reasons recorded above, the writ appeal fails and the same is dismissed
with no order as to costs.
***
415
IN THE HIGH OF KERALA AT ERNAKULAM WP (C) No.29243 of 2004 (F)
D.D. 26.11.2004
THE HON’BLE MR.JUSTICE K.K.DENESAN V.Swadathan Pillai K ... Petitioner Vs. The Kerala Public Service Commission & Anr. ... Respondents Examination: Violation of Instructions to Candidates: The petitioner a candidate for the post of Higher Secondary School Teacher appeared for the written test but his answer sheet was not valued because he did not blacken the bubbles showing the question booklet/answer sheet – The petitioner contended that the mistake was inadvertent – The High Court rejected the contention and dismissed the writ petition by following the decision of the Supreme Court that where violation of instructions issued by the Commission is established absence of intention to violate the mandate of the instruction is not material. Case referred: 1992 (2) S.C.C. 207 – Shivakumar & Ors. v. V.M.Vijayashankar & Ors.
JUDGMENT Petitioner applied for the post of Higher Secondary School Teacher (Botany). He
was called for the written test which was conducted on 29-10-2003. When the result of
the examination was published by the Public Service Commission, petitioner’s name was
not included in the list. He submitted an application for rechecking his answer sheet. In
response to that application, petitioner was informed that his answer sheet was not valid
because he did not blacken the bubbles showing the question booklet/answer sheet.
Petitioner submits that his answer sheet ought not to have been subjected to such a
treatment at the hands of the Public Service Commission for a simple omission happened
on his part inadvertently. Petitioner further submits that the omission on his part to
blacken the bubbles showing the question booklet cannot be taken as a serious omission
because even in cases where blackening is not done, the answer sheet can be valued
properly and it is not going to make any fatal impact as the Public Service Commission
seems to think.
416
2. Learned Standing counsel for the P.S.C. has drawn my attention to the
instructions given to the candidates. In that instruction the candidates have been very
specifically warned that the bubbles should be blackened. According to the Standing
Counsel, the consequences of committing an omission of that kind is not that
inconsequential as the petitioner would attempt to show. Standing Counsel for the
Commission brings to my notice judgment in O.P.No.28653 of 2002 which was disposed
of by me observing inter alia as follows:
“The Standing Counsel brought to my notice, the decision of the Supreme Court in
Shivakumar and Others v. V.M.Vijayashankar and Others (1992 (2) S.C.C. 207). In that
decision it was held by the Supreme Court that the Commission is justified in not
evaluating the answer book where violation of instructions issued by the Commission is
established. Supreme Court has also held that absence of intention to violate the mandate
of the instruction is not material.
Admittedly there is non-compliance of the instructions specifically printed on the
admission ticket itself. If the petitioners have omitted, whether inadvertently or
deliberately, to write the roll numbers in their answer script, the blame cannot be put at
the doors of the Commission. Instructions of the Commission printed on the Admission
Ticket are meant to be taken care of and duly complied with uniformly by all the
candidates and petitioners cannot claim any exception from that. Very often lack of care
and diligence visits the candidates with adverse consequences. This Court is not justified
in exercising its discretionary power under Article 226 of the Constitution in favour of
such persons upsetting the functioning of the Commission which is bound to deal with
the cases of lakhs of candidates for whose guidance and compliance a uniform set of
instructions is issued. If relief is granted to these petitioners alone, it will amount to
unjust discrimination. I am not satisfied that the petitioners are entitled to get relief in
this Original Petition. Original petition is liable to be dismissed and I do so.”
3. In this case, there is no scope for taking a different view or to allow the prayers
made in this writ petition. Though unfortunate, the petitioner has to blame himself for
417
the omissions committed. Candidates expecting responsible jobs ought to conduct
themselves in such a manner that their answer sheets are not made liable for rejection for
defects and violations of the instructions. Writ petition fails. Dismissed.
***
418
IN THE HIGH COURT OF KERALA AT ERNAKULAM W.P. (C) NO.17186 OF 2004-U
D.D. 2.2.2005 THE HON’BLE MR. JUSTICE M.RAMACHANDRAN
Srivalsan K.V. ... Petitioner Vs. The Deputy Secretary, Kerala PSC & Anr. ... Respondents Retotalling of Marks: The petitioner who participated in an examination conducted by the Commission and not secured a position in the rank list sought for verification of marks and the Commission informed that there was no mistake in the retotalling of marks – The petitioner alleged that if the contents of the answers were specifically to be examined it would have been possible for him to establish that the marks awarded were inadequate and insufficient – The High Court observing that whatever possible can be done by the Commission was done dismissed the writ petition.
JUDGMENT Petitioner had partaken in an examination conducted by the Kerala Public Service
Commission in July, 2003. However, it came out that he could not secure a position in
the rank list. The petitioner had thereupon submitted an application for verification of the
marks, but what was offered was only a rechecking of the answer scripts. By Ext.P2, he
has been advised by the Secretary of the Public Service Commission that there was no
change in the marks awarded to him and there was no mistake in the totaling of marks
and no answer was left without being valued.
2. The counsel for the petitioner submits that the stand of the Public Service
Commission was objectionable, since the contents of the answers were specifically to be
examined and it would have been possible for him to establish that the marks awarded
were inadequate and insufficient.
3. However, I see that the examination was held early in 2003 and a verification
of the answer scripts, at this juncture, may not be expedient. Public Service Commission
is conducting examinations almost every day and it is impractical therefore to direct them
to rake up old records from the store room or subject them to a review in the presence of
the petitioner, so as to satisfy the whims of the petitioner.
419
4. Prima facie, I am satisfied that whatever possible is done by the Public Service
Commission to allay the apprehensions of the petitioner. Further indulgence by this Court
is not justified.
The Writ Petition is therefore dismissed.
***
420
MADHYA PRADESH PUBLIC
SERVICE COMMISSION
421
IN THE HIGH COURT OF MADHYA PRADESH WRIT PETITION NOS.2656/95 & 2184/98
D.D. 7.3.2002 THE HON’BLE MR. JUSTICE BHAWANI SINGH, CHIEF JUSTICE
THE HON’BLE MR. JUSTICE K.K.LAHOTI, JUDGE Raj Kumar Tamrakar ... Petitioner Vs. State of Madhya Pradesh & Others ... Respondents
Examination – Debarment for producing forged certificate of Scheduled Tribe: Petitioner belonging to Tamrakar sub tribe produced certificate claiming to belonging to Chhatri Scheduled Tribe – PSC debarred the petitioner from appearing future examinations for serious mis-conduct of filing forged ST certificate – The petitioner filed Writ Petitions for quashing the said order and declaration that Tamrakar as sub tribe of Chhatri tribe – Writ Petitions were dismissed following the Supreme Court decision in (2001) 1 SCC 4 holding that the Courts cannot and should not expand the jurisdiction to deal with the question as to whether a particular caste, sub-caste, a group or part of tribe or sub tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 & 342. The relevant observation of the Supreme Court in the above case is as under:
“3. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (4) of Article 342 only by Parliament by law and by no other authority.”
4. It is not open to State Governments or Courts or Tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342.”
Case Referred: (2001) 1 SCC 4 – State of Maharashtra vs. Milind & Others
ORDER
Petitioner by these two petitions, has invoked the jurisdiction of this Court to
decide the question whether Tamrakar sub tribe is included in the list of Scheduled Tribes
issued by the President of India in entry 20 of the list and for this purpose to make a
422
reving and deep examination of the material and to declare that Tamrakar should be
treated as Chhatri.
2. Writ Petition No.2656/1995 filed by petitioner Raj Kumar Tamrakar challenging
the order of Madhya Pradesh State Public Service Commission, Indore, in which
petitioner has been debarred from appearing in the future examination because of his
serious misconduct of filing forged certificate of Scheduled Tribes. In this case, the
petitioner has prayed that Tamrakar be declared as Chhatri Scheduled Tribe as notified by
1950 Order and he may be permitted to enjoy all the privileges and concessions available
to member of Scheduled Tribe.
3. Writ Petition No.2184/1998 has been filed by the same petitioner in which order
passed by Madhya Pradesh State Administrative Tribunal, Jabalpur in O.A.No.2428 of
1995 dated 5.9.1998 in which his termination order was challeged on the same ground
that he being Tamrakar be declared as sub-tribe of Chhatri Tribe claiming that Chhatri is
the genus of which Tamrakar is specie. The learned counsel for the petitioner submits
that this Court should exercise its writ jurisdiction in the matter and after going through
all the material and documents filed by the petitioner, the above said declaration as
prayed by him be granted.
4. It is not in dispute that the Constitutional Schedule Tribe order Part-VIII-Madhya
Pradesh in which Chhatri has been included in scheduled Tribe in Madhya Pradesh did
not include Tamrakar sub-caste of Chhatri. Recently, the Apex Court has considered the
powers of the Court for dealing with such matters. The Apex Court in the case of State
of Maharashtra vs. Milind and others reported in (2001) 1 SCC 4 held:
“Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste, a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342.. .. .. Allowing the State Governments or Courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential order when it is not so specifically included; may lead to problems. In order to gain advantage of reservations for the purpose of Article 15(4) or 16(4) several persons have been coming forward claiming to be covered by Presidential orders issued
423
under Articles 341 and 342. This apart, when no other authority other than Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the Courts nor Tribunals nor any authority can assume jurisdiction to hold inquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in Presidential Orders in one entry or the other, although they are not expressly and specifically included. A Court cannot alter or amend the said Presidential Orders for the very good reason that it has no power to do so within the meaning, contend and scope of Articles 341 and 342. It is not possible to hold that either any inquiry is permissible or any evidence can be let in in relation to a particular caste or tribe to say whether it is included within Presidential Orders when it is not so expressly included.
The Apex Court has further held:
1. It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the constitution (Scheduled Tribes) Order, 1950. 2. The Scheduled Tribe Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community or synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it.
3. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (4) of Article 342 only by Parliament by law and by no other authority.
4. It is not open to State Governments or Courts or Tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342.”
5. With background aforesaid, this Court cannot exercise jurisdiction to declare that
Tamrakar is a schedule tribe in entry 20 of Constitutional (Scheduled Tribes) Orders
which reads as under:
20. Kawar, Kanwar, Kaur, Cherwa, Rathia, Tanwar, Chhatri 6. In view of this, both petitions are devoid of any substance and accordingly
dismissed with no order as to costs.
***
424
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE WRIT PETITION NO.785/2000
D.D. 12.8.2002
HON’BLE SARVASHRI DEEPAK VERMA & HON’BLE MR. JUSTICE N.K.JAIN
State of M.P. & Anr. ... Petitioner Vs. Dr.Sheetal Kumar Bandi & Others ... Respondents Disciplinary Enquiry: Petitioner Professor of Surgery was convicted under Section 337 of the I.P.C. for being negligent in performing operation – He was subsequently released on probation of good conduct – In the disciplinary enquiry held on same set of facts he was removed from service mainly on the ground he was convicted in the criminal case – The petitioner challenged the same before the State Administrative Tribunal (SAT) – SAT quashed the order of dismissal on the ground that no show cause notice against the proposed penalty was given to the petitioner – The State Government challenged the said order by filing this Writ Petition – The High Court has dismissed the Writ Petition with costs.
Held:
Non-observance of legal requirement vitiates disciplinary enquiry. Although Article 311(2) of the Constitution confers on the Government, power to dismiss or remove a person from service on the ground of conduct which has led to his conviction on a criminal charge, that power like any other power has to be exercised fairly, justly and reasonably.
Cases referred: 1. AIR 1975 SC 2216 – Challappan 2. AIR 1985 SC 772 – Shankar Dass 3. AIR 1985 SC 1416 – Tulsiram 4. 2001 (2) Supreme Court Today 199 – Sunil Kumar
ORDER
This petition under Article 226/227 of the Constitution of India filed by the
Petitioners – The State of Madhya Pradesh and the Dean. M.G.M. Medical College,
Indore – is directed against the order dated 31.1.2000 passed by the Indore Bench of M.P.
State Administrative Tribunal (for short, ‘the SAT’) quashing the order of removal of
respondent No.1 – Dr. Sheetal Kumar Bandi, passed by the State Government on
28.9.1999.
425
2. Respondent – Dr. Bandi on the date of his removal was working on the post of
Professor, Surgery (Paediatrics) in M.G.M. Medical College, Indore, a Government
Institution. He, amongst others, was prosecuted on the charge under Section 377 of the
Indian Penal Code, for being negligent in performing operation on a two years old
healthy child mistaking him for another child was to be operated upon for Hernia. After
trial he was convicted by the Magistrate for the said charge and sentenced to six months
rigorous imprisonment with fine Rs.500/-. On appeal, the conviction was affirmed but
the sentence of imprisonment was set aside leaving the sentence of fine unaltered, by
Additional Sessions Judge, Indore, vide his judgment dated 10.5.1999 in Criminal Appeal
No.175/1998. Following this conviction and taking recourse to Rule 19 of the M.P. Civil
Services (Classification, Control and Appeal) Rules, 1966 (for short ‘the State Rules’)
and after consulting the State Public Service Commission, the State Government on
28.9.1999, imposed major penalty of removal on the respondent. The respondent
challenged his removal before the SAT by filing an application (O.A.No. 1611/1999)
which has been allowed and the impugned removal has been quashed with all
consequential benefits to the respondent, vide order dated 31.1.2000 which is under
challenge before this Court.
3. The SAT has quashed the order mainly on the ground that no opportunity of
hearing was accorded to the respondent – employee to show cause against the proposed
penalty which was imposed even when the Revision filed by the respondent against his
conviction was pending before the High Court.
4. We have heard Shri Z.A.Khan, learned Additional Advocate General for the
petitioner – State and Shri Amit Agrawal, learned counsel for the respondent – employee.
5. Shri Khan, learned A.A.G. has assailed the order of SAT as contrary to law. He
submitted that after the 42nd Amendment of the Constitution, Article 311 as it stands after
amendment, now no more required that any second opportunity of making representation
at the stage of imposing penalty should be given to the delinquent employee. Rule 19 of
the State Rules, 1966 also did not postulate any such opportunity. It was further
contended that the State Government was not obliged in law to wait for the result of the
426
Criminal Revision filed by the respondent inasmuch as no stay was granted by the High
Court in that Revision. He has placed reliance on a Supreme Court decision in Tulsiram
(AIR 1985 SC 1461).
As against it, Shri Amit Agrawal, learned counsel for the respondent strongly
defended the order of the SAT and submitted that notwithstanding the said amendment in
Article 311 of the Constitution or of Rule 19 of the State Rules, it was still necessary to
offer the respondent an opportunity of making representation on the penalty proposed to
be imposed. He submitted that although clause (a) of the second proviso to Article
311(2) of the Constitution confers on the Government, power to dismiss or remove a
person from service on the ground of conduct which has led to his conviction on a
criminal charge, but that power like any other power has to be exercised fairly, justly and
reasonably. The respondent was entitled to demonstrate to the Disciplinary Authority
that the penalty of dismissal or removal was not warranted and it was wholly
disproportionate to the charge for which he was convicted by the Court. Reliance is
placed on Supreme Court decisions in Shankar Dass (AIR 1985 SC 772) and Sunil
Kumar 2001 (2) Supreme Today 199.
6. Having heard learned counsel for the parties and given our anxious consideration
to the rival contentions, we are of the considered view that this petition must fail.
7. Before we dwell upon the question regarding necessity of giving opportunity of
hearing, it may be stated at the outset that we are told that in Revision decided during the
pendency of this petition, the respondent has been released by this Court after due
admonition U/S 3 of the Probation of Offenders Act. Court has noticed that though the
respondent Doctor was guilty of not exercising the due care and caution, nevertheless,
several other factors had contributed equally in performance of the said operation by him
on a wrong person. While Section 12 of the Probation of Offenders Act is of no avail to
the respondent employee, the facts and features of the case were very relevant and
required to be taken into consideration before imposition of any penalty. It is apt here to
refer certain observations made by the Apex Court in the case of Shankar Dass (supra).
427
Chandrachud, CJ (as he then was), speaking for the Court in the very first paragraph of its
judgment remarked:
“Cases which evoke sympathy come frequently before the Court. But pity not often. The case before us has a unique story to tell the story of a crime committed under the stress of personal misery compounded by the apathy of the Establishment.”
In that case the concerned employee was convicted U/S 409 of IPC and was
released U/S 4 of the Probation of Offenders Act, 1958. As a result of his conviction he
was dismissed from service. The apex court held: “But the right to impose a penalty
carries with it the duty to act justly”. Considering the facts of this case, there can be no
two opinions that penalty of dismissal from service imposed upon the appellant is
whimsical.
8. In the instant case also non-observance of the legal requirement apart, the State
Government did not seem to have acted justly and the penalty of removal imposed upon
the appellant, in the facts and circumstances of the case, appeared arbitrary rather
whimsical. It is rally a matter of pity that a person having put in boltless career as a
Surgeon for nearly 34 years should, at the fag end of his career, be dealt with so shabbily
for one time mistake of his life for which the Court itself has taken a lenient view and
released him under provisions of the Probation of Offenders Act. The disciplinary
Authority in the instant case, seems to have acted with a pre-determined mind.
9. Coming to the point involved in the case, the same stands resolved by a recent
Supreme Court decision in Sunil Kumar (supra) wherein the apex court dealing with a
similar situation with reference to Rule 19 of Central Civil Service (Classification,
Control and Appeal) Rules, which is para-materia to Rule 19 of the State Rules, held:
“Rule 19 of the Central Rules which contemplates that if any penalty is imposed on a Government Servant on his conviction on a criminal charge, the Disciplinary Authority can make such order as it deems fit (dismissal from service is one such order contemplated under Rule 19) on initiating disciplinary proceedings and after giving the delinquent officer an opportunity of making a representation on the penalty proposed to be imposed. As a matter of fact, this type of disciplinary procedure is contemplated in the Constitution itself as could be seen in Article 311(2)(a). Rule 19 of the Central Rules is in conformity with the above provision of
428
the Constitution. This, as we see, is a summary procedure provided to take disciplinary action against a Government Servant who is already convicted in a criminal proceedings.” (emphasis supplied)
10. Shri Khan, learned Additional Advocate Genera strenuously urged that Rule 19 of
the State Rules, unlike Rule 19 of the Central Rules does not provide for giving second
opportunity of making representation at the stage of imposing penalty. He, thus,
submitted that this Rule 19 read with proviso (2)(a) of Article 311 of the Constitution
makes it clear that no such second opportunity is now required to be given to a delinquent
official who has either been held guilty after enquiry or convicted on a criminal charge by
some court. We are not persuaded by the argument. It is true that although Rule 19 of
the State Rules does not in terms provide for any such second opportunity of making
representation against the proposed penalty, as is available under the Rule 19 of the
Central Rules, nevertheless, as held by the Supreme Court in Sunil Kumar (supra) this
type of disciplinary procedure is contemplated in the Constitution itself as could be seen
in Article 311(2)(a). So any State Rule has to be in conformity with the above provision
of the Constitution. The Apex Court seems to have resiled from the earlier view
expressed in Tulsiram (supra) and reverted back to the view taken in Challappan (AIR
1975 SC 2216). Relying on the decision in Challappan (supra), Division Bench of this
Court in Tikaram (1978 JLJ 201), dealing with the same Rule 19 of the State Rules, held:
“Conviction on a criminal charge does not necessarily mean that the employee concerned should be removed or dismissed from service. The nature of penalty will naturally depend upon the gravity of the offence for which the employee is convicted. It is, therefore, necessary for the disciplinary authority to decide even in such case, whether in the acts and circumstances of a particular case, what penalty, if at all, should be imposed on the delinquent employee, in determining this question, delinquent employee should be noticed to put forward his point of view and the circumstances of the case, why no penalty or a lesser penalty should be imposed on him.
Although decision in Chellappan (supra) was over ruled in Tulsiram, however, the
apex court, as already pointed out, in Sunil Kumar (supra) has reaffirmed the view taken
in Chellappan. This Court’s decision in Tikaram (supra) would also therefore, hold
ground.
429
11. A bare reading of Rule 19 of the State Rules in the context of the proviso (2)(a) of
Article 311, will make it abundantly clear that these provisions are merely enabling and
do not enjoin the disciplinary authority to impose the extreme penalty of dismissal or
removal in every case of conviction, say for trivial offences or technical offences not
involving ‘moral turpitude’. Principle of natural justice and fair play, therefore, required
that the authority concerned should apply its mind to the facts and circumstances of a
particular case so as to decide what penalty, if at all, is required to be imposed on the
delinquent employee and in order to determine this question, the delinquent employee
should also be heard and his view point should be taken into consideration. Even in the
case of Tulsiram (supra), relied upon heavily by the learned Additional Advocate
General, their Lordships cautioned : The Disciplinary Authorities are expected to act
justly and fairly after taking into account all the facts and circumstances of the case and if
they act arbitrarily and impose a penalty which is unduly excessive, capricious or
vindictive, it can be set aside.............”
12. In Shankar Dass (supra), the apex court lamented “despite observations of the
learned Magistrate the Government chose to dismiss the appellant in a huff without
applying its mind to the penalty which could appropriately be impose upon him in so far
as his service career was concerned .... ..... .... But that power like every other
power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not
contemplate that a Government servant who is convicted for parking his scooter in a no
parking area should be dismissed from service”. In the instant case also, the authorities
concerned do not seem to have considered the facts and circumstances of the case which
led to the conviction of the respondent – employee and instead acted with a pre-
determined mind while imposing the penalty of removal. So, even if the respondent may
not be held entitled to be heard on the question of penalty then also his removal was
liable to be set aside as the penalty of removal from service imposed upon him is
whimsical.
13. For what we have said above, this petition must fail and is dismissed with costs.
Counsel’s fee Rs.5,000/-, if certified.
***
430
HIGH COURT OF MADHYA PRADESH : JABALPUR WRIT PETITION NO.14562 OF 2003
D.D. 26.7.2004
HON’BLE SHRI JUSTICE A.K.SHRIVASTAVA Dr.(Smt.) Aditi Dixit ... Petitioner Vs. State of M.P. & Others ... Respondents Eligibility: Petitioner a candidate for the post of Assistant Veterinary Surgeon – Qualification prescribed as per the advertisement – Degree of B.V.Sc. & A.H. should have registered in the State Veterinary Council – The petitioner produced two provisional registration certificates – One had expired before the cutoff date and the other issued after the cutoff date - Hence, the petitioner was not considered for the post. Held: The Court cannot relax the eligibility of a candidate if he/she does not satisfy the requisite eligibility on the cutoff date. Cases referred: 1. (1990) 3 SCC 157 – N.T.Devin Katti & Ors. Vs. Karnataka Public Service
Commission & Others 2. 1990 (4) SLR 237 – Distt. Collector & Chairman, Vizianagaram & Anr. Vs. M.Tripura
Sundari Devi
ORDER
This petition was originally filed before the M.P. State Administrative Tribunal at
Jabalpur and was registered as O.A.No.204/2000, however, after abolition of the said
Tribunal, this Court has received this petition.
2. By this petition, the petitioner has sought for quashment of impugned condition
No.8 which, according to her, has been superimposed for the first time in the interview
call letter (Annexure-A/1), as illegal and arbitrary. It has been further prayed that
respondent No.2 be directed to consider the candidature of the petitioner for the post of
431
Assistant Veterinary Surgeon as per advertisement (Annexure-A/2) published and to
declare her result in accordance with law.
3. In brief the case of the petitioner is that State Government, Department of
Veterinary Science, advertised 260 posts for recruitment of Veterinary Assistant Surgeon.
The entire selection process was to be conducted by State Public Service Commission
(respondent No.2). Respondent No.3, State Veterinary Council is the Council authorised
and responsible for registration of the Veterinary Graduate of the entire State. According
to the petitioner, she had completed her B.V.Sc. & A.H. degree and underwent her
internship programme. The State Government through its advertisement dated 29.4.1999
(Annexure-A/2) advertised to recruit 260 of Veterinary Assistant Surgeon. In the
advertisement the essential qualification for recruitment is that a candidate should be
possessed degree of B.V.Sc. & A.H. from recognised Institution or University. It has
been specifically mentioned in the advertisement that the candidates not registered by
State Veterinary Council (respondent No.3) on the last date of the application would not
be considered by the State Public Service Commission. The last date of receipt of
application in the advertisement has been mentioned as 10 June 1999.
4. The petitioner submitted her application for consideration of her candidature
along with the provisional registration certificate issued by State Veterinary Council
(respondent No.3) under Section 32 of the Veterinary Council of India Act, 1984.
According to the petitioner, she had passed her Bachelor of Veterinary Science & animal
Husbandry graduate course. Annexure-A/10 is the certificate issued on 21st October
1997 by the Jawaharlal Nehru Krishi Vishwa Vidyalaya, Jabalpur. Thus, according to the
petitioner, she was fully qualified to submit the application for recruitment on the post of
Assistant Surgeon. It has been setforth in the petition that when the petitioner received
interview call letter dated 17.12.1999 (Annexure-A/1) impugned condition No.8 has been
superimposed for he first time that her candidature shall be considered only when she had
permanent registration of State Veterinary Council which should exist on the cut-off date.
According to the petitioner, since she qualified all the eligibility published in the
advertisement, therefore, imposing of impugned condition in the interview call letter of
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possessing permanent registration issued by State Veterinary Council should be struck
down, being illegal and arbitrary and M.P. Public Service Commission (respondent No.2)
should consider the candidature of the petitioner for the post of Assistant Veterinary
Surgeon and to declare her result.
5. All the respondents have filed their separate return. In the return, the case which
has been set forth by the respondents is that the petitioner was not qualified and was not
eligible for the recruitment because she was not possessing the requisite certificate issued
by State Veterinary Council (respondent No.3) on the cut-off date i.e. 10.6.1999 and,
therefore, there is no merit in this petition and the same be dismissed.
6. I have heard Shri Mrigendra Singh and Shri Arpan Pawar, learned Counsel for the
petitioner and Shri V.P.Nema, Govt. Advocate for respondent No.1 and Shri Hemant
Shrivastava, learned counsel for respondent No.2. Having heard learned counsel for the
parties, I am of the view that this petition deserves to be dismissed.
7. The petitioner could get any relief in this petition only if she fulfils the eligibility
criteria and qualifications emphasised in the advertisement (Annexure-A/2). On bare
perusal of the said advertisement it transpires that two conditions should be fulfilled by
the candidate applying for the recruitment of the said post. The first condition is that he
should be a Graduate in Veterinary Science and Animal Husbandry and the second
condition is that he should possess the certificate of registration issued by respondent
No.3 i.e. State Veterinary Council on the cut-off date (10.6.1999). No doubt the
petitioner did possess the first qualification i.e. she is a Bachelor in Veterinary Science
and Animal Husbandry as it is clear from Annexure-A/10 which is a certificate of the
petitioner issued by Jawaharlal Nehru Krishi Vishwa Vidyalaya, Jabalpur on 21 June,
1997 declaring her to be a Bachelor of Veterinary Science and Animal Husbandry.
However, the second qualification of having registration certificate issued by respondent
No.3 on the cut-off date is lacking. It has been contended by learned counsel for the
petitioner that twice provisional certificate of registration was issued by State Veterinary
Council (respondent No.3) to petitioner and they are Annexure-A/3 and Annexure-A/4
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dated 16.4.1998 and 25.6.1999 respectively. It be seen that except these two provisional
registration certificates the petitioner has not annexed any other certificate nor there is
any pleading to that effect in her petition that apart from these two provisional certificates
any other provisional certificate of registration has been issued to her.
8. It has been contended by Shri Hemant Shrivastava and Sri Nema, learned counsel
appearing for the respondents that the degree in Veterinary Science & Animal Husbandry
is a five years’ degree course plus six months internship and on successful completion
internship the degree in Veterinary Science known as Bachelor of Veterinary Science and
Animal Husbandry is awarded. The Parliament has enacted the Indian Veterinary
Council Act 1984 and in pursuance to the said Act in exercise of powers conferred by
Sub-section (1) of Section 22 read with clause (b) of sub-section (1) of Section 21 of the
said Act, Regulations 1993 are framed and they are known as Veterinary Council of India
(Minimum Standards of Veterinary Education) Degree course (B.V.Sc.& A.H.)
Regulations 1993 (hereinafter referred to as ‘the Regulations’). It has been contended by
learned counsel for the respondents that the Regulations prescribed the course of study,
the procedure to be adopted and the Veterinary Curriculum in part V of the said
Regulations, Regulation 7(2) speaks about internship. According to this provision a
candidate who had passed B.V.Sc.& A.H. course has to undergo rotating internship to the
satisfaction of the University for a minimum period of six months so as to become
entitlement of full registration. According to clause 7(2)(ii), a candidate is required after
passing the final B.V.Sc. and A.H. examination to undergo compulsory rotating
internship to the satisfaction of the University for a minimum period of six months so as
to be eligible for the award of degree of B.V.Sc. & A.H. and full registration. According
to clause 7(2)(iv), the State Veterinary Council will grant provisional registration to the
candidates who are undergoing internship on being presented by them provisional
B.V.Sc. & A.H. course completion certificate. According to this clause, the provisional
registration will be for a minimum period of six months and even on the shortage of
attendance or unsatisfactory work, the period of the compulsory rotating internship shall
not be extended for more than two months by the appropriate authority. For the ready
reference it would be condign to re-write the said provision:
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“7(2) Internship (i) All parts of the internship shall be done as far as possible in Veterinary institution in India. In case of any difficulties, the matter may be referred to Veterinary Council of India to be considered on individual merit. (ii) Every candidate will be required after passing the final B.V.Sc. & A.H. examination to undergo compulsory rotating internship to the satisfaction of the University for a minimum period of six months so as to be eligible for the award of the degree of B.V.Sc. & A.H. and full registration. (iii) The University shall issue a provisional course completion certificate on passing the final examination. (iv) The State Veterinary Council/Veterinary Council of India will grant provisional registration to the candidate on production of the provisional B.V.Sc. & A.H. course completion certificate. The provisional registration will be for a minimum period of six months. In the event of shortage of attendance or unsatisfactory work, the period of the compulsory rotating internship shall not be extended for more than two months by the appropriate authority.” (v) ----- (vi) ----- (vii) ----- (viii) -----
On going through the aforesaid provisions, I have no scintilla of doubt that on the
cut-off date i.e. 10.6.1999 the petitioner was not having registration certificate issued by
respondent No.3. The petitioner submitted two provisional certificates issued by
respondent No.3 and they are dated 16.4.1998 and 25.6.1999 (Annexure-A/3 and
Annexure-A/4 respectively). The period of provisional certificate issued on 16.4.1998
comes to an end after the expiration of six months i.e., on 15.10.1998 as per provisions of
clause 7(2)(iv) of the Regulations. Another provisional certificate issued by respondent
No.3 dated 25.6.1999 (Annexure-A/4) carries no meaning for the simple reason that it has
been issued after the expiry of cut-off date (10.6.1999). Thus, on the last date of receipt
of the application, the petitioner was not having any registration certificate issued by
435
respondent No.3 which is cardinal and prerequisite condition for the recruitment as per
advertisement Annexure-A/2.
9. The regulations are having force of law since they are framed under Section 22of
the said Act. According to the Regulations the provisional certificate issued by State
Veterinary Council shall be for six months only. For the entitlement of degree of B.V.Sc.
& A.H. and full registration, a candidate has to undergo internship and the period of
provisional certificate issued by State Veterinary Council shall be only for six months
and, therefore, provisional certificates of petitioner dated 16.4.1998 and 25.6.1999 would
not help her in order to validate her candidature for the recruitment on the said post. On
bare perusal of Annexure-A/3 which is a provisional certificate issued by respondent
No.3 to the petitioner on 16.4.1998, it is revealed that the same has been cancelled as it
appears from bare perusal of the said certificate. The word “Nirast” (cancelled) has been
written on the said certificate and, thus, the said certificate did not remain in existence
and the other certificate Annexure-A/4 dated 25.6.1999 has been issued after the cut-off
date i.e. after 10.6.1999 and, therefore, it is of no any use to the petitioner so far as her
recruitment as per the demand of advertisement Annexure-A/2 is concerned.
10. Since the petitioner was not having requisite qualification on the last date of
receipt of the application form, her candidature cannot be considered. It is the cardial
principle of law in regard to selection and appointment that the qualification of a
candidate must be considered on the date when the case of the candidate is considered.
When qualifications for appointment to a post in a particular cadre are prescribed, the
same has to be satisfied before a person can be considered for appointment. In that
regard it would be apposite to place reliance on the decision of the Apex Court in the case
of R.Prabha Devi and Others Vs. Government of India and others, AIR 1988 SC 902.
11. In the case of Distt. Collector & Chairman, Vizianagaram and another Vs.
M.Tripura Sundari Devi, 1990 (4) SLR 237, he Apex Court laid down the law in regard
to the eligibility of a candidate for appointment and it would be relevant to re-write para-
6 of the said decision which reads thus:
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“6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard the same, it is not a matter only between the appointing authority and thee appointees concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint person with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice. We are afraid that thee Tribunal lost sight of this fact.”
In another case State of Rajasthan Vs. Hitender Kumar Bhatt, AIR 1998 SC 91, it was
held by the Apex Court that for the purpose of selection a candidate should be eligible for
consideration and if/she does not qualify the eligibility and despite he was continued in
service on account of interim orders, his case was not required to be considered. I think it
proper to re-write para-6 of the said decision of the Apex Court thus:
“6. Looking to the clear terms of the advertisement which we have referred to above, the respondent was not eligible for consideration. It is submitted by the respondent before us that since he has been continued and has now been confirmed we should not disturb his appointment. He has requested hat his case should be considered sympathetically. The fact, however, remain that thee appellants have taken the correct stand right from the beginning. The respondent’s application was not considered and he was not called for an interview. It was on accounts of interim orders which were obtained by the respondent that he was given appointment and continued. He was aware that his appointment was subject to the outcome of his petition. One cannot, therefore, take to sympathetic view of thee situation in which the respondent finds himself. A cut-off date by which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would have applied had they known that the date of acquiring qualifications was flexible. The may not have applied because they did not posses the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to others.”
The Apex Court specifically held that merely because a candidate was allowed to
appear in the interview and later on he joined his service and even confirmed by the
interim order, since the candidate does not qualify the eligibility, no sympathetic view is
to be accorded to him. The High Court by adopting sympathetic view ignored the
437
eligibility criteria and directed the said person to continue in service, in that situation the
Apex Court not only deprecated that type of practice but also set aside the order of the
High Court. Thus, if the ratio-decidendi of the case of Hitendra Kumar (supra) is applied
on the realm of the present case, according to me, the Court cannot relax the eligibility of
a candidate and if he/she does not qualify the requisite eligibility on the cut-off date
his/her candidature cannot be considered for selection. The view of this Court is that
Articles 14 and 16 of the Constitution of India cannot be stretched up to the extent so as
to include those candidates who do not qualify the requisite eligibility for selection.
12. On the basis of the above said pronunciation of the case-laws of the Apex Court, I
do not find any merit in the case of the petitioner since she does not qualify the eligibility
in accordance to the terms of advertisement (Annexure-A/2) as on the cut-off date i.e. on
10.6.1999, she was not possessing the requisite certificate issued by State Veterinary
Council. Learned Counsel for the petitioner, by placing reliance on the decision of the
Apex Court in the case of N.T.Devin Katti and others Vs. Karnataka Public Service
Commission and others, (1990) 3 SCC 157, has argued that the petitioner is having right
to be considered as on the date of the application she was qualified in accordance with
existing rules and in terms of advertisement. So far as the proposition of law laid down
in the case of N.T.Devin Katti (supra) is concerned, there is no quarrel. Indeed this case
is in favour of respondents and does not help the petitioner. In this decision also it has
been held by Their Lordships of the Apex Court that a right of a person applying for
appointment is to be considered in accordance with the existing rules or conditions in
terms of advertisement inviting the application and if the candidate fulfils the requirement
he acquires a vested right to be considered for selection. In the present case, as discussed
hereinabove, since the petitioner does not qualify the requisite eligibility, she had no case
and the case of N.T.Devin Katti and others (supra) do not help her.
12. In the result, the petition is found to be devoid of any substance and the same is
hereby dismissed without any order as to costs.
***
438
HIGH COURT OF MADHYA PRADESH WRIT PETITION NO.643/1999
D.D. 26.8.2002 HON’BLE MR.JUSTICE DEEPAK VERMA & HON’BLEMR. JUSTICE N.K.JAIN
Kum.Priti Sharma ... Petitioner Vs. State of M.P. & Others ... Respondents Examination – Fixing of minimum marks in each subject in the Written Examination: Petitioner was a candidate for the post of Assistant Professor in Government Colleges in various subjects – Candidates were to be called for interview on the basis of total marks obtained by the candidates in the written examination in the ratio of 1:3 – P.S.C. passed resolution after the written examination that a candidate eligible for being called for interview should obtain minimum of 33% in each subject in the written examination – As the petitioner did not obtain the minimum marks in General Knowledge she was not called for interview – Therefore, the petitioner challenged the said action of P.S.C. – The High Court upheld the contention of P.S.C. that in conduct of examination for appointments to the services of the State and laying down of criterion of securing minimum percentage of marks in each subject, was a process of selection and could not be termed as arbitrary or violative of any fundamental right and dismissed the petition.
Held:
That the resolution in question fixing the minimum marks in each subject of the written examination was a process of selection. There being nothing unreasonable to expect a candidate to secure at least minimum marks of 33% in each subject and the resolution was applicable uniformly to all the candidates and as such there was no question of discrimination or arbitrariness.
Cases referred:
1. AIR 1989 SC 134 – The case of Dr. M.C.Bindal 2. AIR 1995 SC 77 – M.P. Public Service Commission Vs. Navnit Kumar
ORDER
By this petition under Article 226/227 of the Constitution of India, petitioner Ku.
Priti Sharma calls in question the Order dated 5.5.1999 rendered by M.P. State
Administrative Tribunal, Indore Bench, Indore (for short, ‘the SAT’), in Original
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Application No.1008/1995, dismissing petitioner’s application seeking direction to the
M.P. Public Service Commission – respondent No.2 herein – to call her for interview for
selection to the post of Assistant Professor in Government Colleges in English subject.
2. Petitioner was one of the candidates who had appeared in the written examination
conducted by respondent No.2 for selection of candidates for appointment to the posts of
Assistant Professors in Government Colleges in various subjects. As per Advertisement
(vide Annexure P/6), the candidates were to be called for interview on the basis of total
marks obtained by the candidates in written examination. Three candidates were to be
called for interview as against one post and final selection was to be made on the basis of
aggregate marks obtained in written examination and the interview. However, after
holding of written examination, the respondent – Commission on 19.8.1991, passed a
Resolution providing that a candidate eligible for being called for interview has to obtain
minimum 33 percent marks in each subject in the written examination. Admittedly, the
petitioner herein did not obtain the minimum marks in one of the subjects i.e., General
Knowledge. She was, therefore, not called for interview.
3. The petitioner has challenged the aforesaid Resolution as arbitrary and violative
of her fundamental rights as guaranteed by Articles 14 and 16 of the Constitution. It was
contended that no term or condition in addition to those provided in the Advertisement
could be introduced after holding of written examination to the prejudice of any
candidate. It was pointed out by the petitioner that she had obtained much more marks in
aggregate than the candidates who were called for interview and finally selected. She,
thus, prayed before the Tribunal that the said Resolution be quashed and the Commission
be directed to call her for interview and if found fit, to appoint her on to the post of
Assistant Professor in English subject.
4. The application of the petitioner was resisted by the respondents and it was
contended that the Public service Commission by virtue of conferred by Article
320 of the Constitution, was entitled to lay down such terms and conditions found
necessary in conduction of examination for appointments to the services of the State and
laying down of criteria of securing minimum percentage of marks in each subject, was a
440
process of selection and could not be termed arbitrary much less violative of any
fundamental right of the petitioner candidate.
5. The Tribunal upheld the contentions of the respondents and dismissed the
application of the petitioner who has, therefore, approached this Court under Article 227
of the Constitution.
6. We have heard Shri D.M.Kulkarni, learned counsel for the petitioner, Shri
Mukati, GA for respondent No.1 – State and Shri V.P.Khare, learned counsel for
respondent No.2 – Commission. Learned Counsel for the parties have reiterated the
contentions already referred to above. We have given our anxious consideration to the
rival contentions and we are of the considered view that this petition must fail.
7. The moot question requiring determination is whether the Commission could after
holding of written examination, lay down the criteria of obtaining minimum marks in
each subject before a candidate could be called for interview, particularly when no such
condition was prescribed in the Advertisement. The obvious answer is : YES. The
resolution in question in our opinion was a process of selection which the Commission
has to undertake by virtue of Article 320. It is true that the eligibility for being called for
interview was to be fixed on the basis of total marks obtained by a candidate in the
written examination, but there was nothing unreasonable to expect a candidate to secure
at least minimum passing marks (33 percent) in each subject in which he had appeared
for written examination. The said Resolution was applicable uniformly to all the
candidates appearing in the written examination. So, there was no question of
discrimination.
8. Dealing with a similar situation, the Supreme Court in M.P. Public Service
Commission Vs. Navnit Kumar (AIR 1995 SC 77) in the matter of selection of
candidates for the posts of presiding officers of the Labour Courts, where the Public
Service Commission after inviting application and in the process of short-listing of
candidates, took a decision to call for interview only such candidates who had completed
seven and half years of practice instead of five years of practice as required under the
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Law and provided in the Advertisement, held that raising the period of five years to seven
and half years practice, for the purpose of calling the candidates for interview, did not
amount to changing the statutory criteria by an administrative decision. The Apex Court
observed : “In any case this fixing of limit at seven and half years instead of five years
of the practice for the purpose of calling for interview cannot be said to be irrational,
arbitrary having no nexus with the object to select the best amongst the applicants”.
9. In the instant case, what the Commission expected a candidate to secure minimum
passing marks in each subject of the written examination. The criteria so prescribed
cannot be termed as irrational or arbitrary. When a person is required to appear in written
examination, before he is called for interview, not only he should secure such total marks
necessary to put him in the consideration zone, but should also secure minimum passing
marks in each subject.
10. Shri Kulkarni, learned counsel for petitioner strenuously submitted that petitioner
was a candidate for appointment as Assistant Professor in English subject and so her
eligibility should have been considered with reference to her marks obtained in that
subject alone. He has placed reliance on a Supreme Court decision in the case of Dr.
M.C.Bindal (AIR 1989 SC 134). We are not persuaded by the arguments which is rather
falicios. When more than one subjects were prescribed in the written examination the
minimum expected of a candidate was that he should obtain passing marks in each
subject besides obtaining the requisite aggregate marks. In our opinion, this requirement
was implicit even in the advertisement and the subsequent Resolution dated 19.8.1991
only applied the omission. The decision in Dr.M.C.Bindal (supra), has absolutely no
bearing in the facts and circumstances of the present case. It dealt with altogether a
different subject holding that the Public Service Commission was entitled under Article
320 of the Constitution to recall its recommendation made to the Government for
appointment of candidates.
11. For what we have said above, this petition fails and is dismissed but without any
order as to costs.
***
442
IN THE HON’BLE HIGH COURT OF JUDICATURE JABALPUR BENCH AT GWALIOR
ORIGINAL APPLICATION NO.829/1994 D.D. 12.10.2004
HON’BLE MR. JUSTICE RAJENDRA MENON
Sanjay Kumar Poranik ... Petitioner Vs. State of M.P. & Ors. ... Respondents Recruitment – Educational Qualification:
The petitioner who is M.A., Ph.D. in Social Work was called for interview by P.S.C. to the post of Deputy Director/Chief programmer - Subsequently, interview letter was cancelled on the ground that M.A. in Social Work possessed by the petitioner is not equivalent to the qualification prescribed for the post namely P.G. in Sociology on the basis of the letter dated 28.7.1994 issued by Devi Ahilaya University from where the petitioner obtained M.A. Social Work –This petition challenging the same was dismissed. Held: As the petitioner did not possess the essential qualification prescribed in the advertisement no illegality was committed by the P.S.C. in cancelling the interview letter.
ORDER Petitioner has filed this petition being aggrieved by cancelling the call letter
issued to him by the Public Service Commission for appointment to the post of Deputy
Director/Chief Programmer by the State Government. It is the case of the petitioner that
he has passed M.A., Social Work from Devi Ahilaya University, Indore in the year 1986.
He has also acquired Ph.D., qualification and in pursuance to an advertisement issued for
appointment to the post of Deputy Director/Chief Programmer, he submitted an
application. His application was scrutinized and on being found eligible he was issued
with an interview letter vide Annexure A/4 asking him to appear in the interview to be
held on 13.12.1993. But subsequently, the same was telegraphically cancelled vide
Annexure A/5 on the ground that he is not qualified.
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On notice being issued, respondents have filed reply and in the reply filed by the
Madhya Pradesh Public Service Commission, it has been indicated that the minimum
qualification required for appointment to the post is Post Graduate in Sociology whereas
the petitioner has a Post Graduate degree in Social Work. The letter, Annexure R/2 dated
23.7.1994 issued by the Additional Registrar, Devi Ahilaya University, Indore is filed to
show that the Post Graduate in Sociology and Post Graduate in Social Work are two
different subjects. Accordingly, it is the case of the respondents that petitioner does not
fulfill the requisite minimum qualification required for selection, and therefore, the
interview letter issued to him was cancelled.
Considering the aforesaid reply submitted by the respondent No.2, it is clear that
petitioner was not having the essential qualification prescribed in the advertisement no
illegality has been committed by the respondents in cancelling the interview letter issued
to the petitioner.
Accordingly, finding no ground to interfere in the petition, the same is dismissed
without any order as to cost.
***
444
BEFORE THE HON’BLE HIGH COURT OF MADHYA PRADESH BENCH GWALIOR
WRIT PETITION NO.1817/2004 D.D.12.10.2004
HON’BLE MR. JUSTICE SHRI RAJENDRA MENON
Ku. Sujata Gautam ... Petitioner Vs. State of Madhya Pradesh ... Respondent Recruitment: Petitioner a candidate for the post of Assistant Professor, History – Minimum qualification prescribed for the post was post graduate in History – Petitioners were post graduates in Ancient History, Cultural and Archaeology – P.S.C. rejected the applications of the petitioners holding that they did not possess the required qualification – The action of P.S.C. was challenged in this Writ Petition. Held: Once the qualification prescribed is not fulfilled by the candidates concerned, the Court cannot direct for consideration of their cases. Prescribing minimum qualification and the requirement for a particular post is determined by the expert bodies and the same is done by the competent authorities on the basis of the evaluation and requirements for discharging duties in a particular post. This is purely within the domain of an expert authority and Courts cannot step into the shoes of such expert authority and substitute their decision with that of its own until and unless it is found that the decision is vitiated being contrary to any statutory rules or law. Cases referred: 1. 1998 (3) SCC 391 - 2. 1998 (8) SCC 399 –
ORDER
As common questions are involved in all the three petitions being
W.P.No.1817/2004, W.P.No.1838/2004 and W.P.No.2038/2004 they are being disposed
of by this common order.
Petitioners in all these cases feel aggrieved by action of the Madhya Pradesh
Public Service Commission in rejecting these applications submitted by the petitioners
for considering their candidature for appointment to the post of Asstt. Professors
445
(History). Facts which are not in dispute are that all the petitioners are Post Graduates in
the subject of Ancient History, Cultural and Archaeology and in pursuance to an
advertisement published by the M.P. Public Service Commissions 10.7.2003 Annexure
P/11,they applied for seeking appointment to the post of Asstt. Professors in the subject
of History against advertisement vide column No.11 of the aforesaid advertisement.
The grievance of the petitioners are that even though they are qualified having the
requisite Post Graduate qualification in the subject of Ancient History, Cultural and
Archaeology. By the impugned order dated 5th August, 2004 the Madhya Pradesh Public
Service Commission has rejected their applications on the ground that they do not
possess the requisite qualifications. Inviting my attention to the advertisement in
question so also the requirement prescribed therein it was submitted by learned counsel
appearing for the petitioners that the education qualification was graduate in subject with
50% so also post graduate with 55% marks and other conditions as stipulated by the
U.G.C. Petitioners are post graduate in the subject of Ancient Indian History, Culture
and Archaeology and having obtained more than 55% marks in the post graduate
examination, are eligible for appointment to the said post. Accordingly, it is the case of
the petitioners that their candidature has been illegal rejected.
Shri R.D.Jain, Senior Advocate appearing for respondent No.2 has refuted the
aforesaid and by filing a detailed reply along with various documents has contended that
the minimum qualifications required was post graduate in the subject of History and not a
post graduate in the subject of Ancient Indian History, Culture and Archaeology.
Bringing on record various documents mainly the circular issued by the State
Government vide Annexure R/2 dated 30.6.2004 so also the syllabus for the subjects in
question issued by the Jiwaji University, Gwalior, Shri R.D.Jain, Senior Advocate
learned counsel emphasised that the syllabus and course in both these post graduate
subject i.e., History and Ancient Indian History, with and Archaeology are different. It
was pointed out by Shri Jain, that subjects and topics in Ancient Indian History Culture
and Archeology, the semester and the periods for various subjects i.e. the Historical
period taught are different. In that view of the matter, it was submitted by him that
446
petitioners were not eligible for applying. Bringing on record the advertisement issued in
the year 1990 vide Annexure R/4 it was submitted by Shri Jain that Asstt. Professor in
History and Asstt. Professor in Ancient History are two different subjects and in the
present case as appointment is to be post of Asstt. Professor in History. Petitioners do not
fulfill the requisite qualifications. Placing reliance on the judgment of Supreme Court
1998 (3) S.C.C. 391 and 1998 (8) S.C.C. 399, it was submitted by Shri R.D.Jain, Senior
Advocate, learned counsel that once the qualification prescribed is not fulfilled by the
candidates concerned, this court cannot direct for consideration their cases. It is argued
by learned counsel for the petitioner that the subject are different, the courses prescribed
for the study are different, semester is different and the topic and Historical periods of
study in each subjects is different and the in that view of the matter the Commission has
not committed any error in rejecting the candidature of the petitioners and no relief can
be granted to the petitioners in these petitions.
Having heard learned counsel for the parties and on considering the material
available on record, I find no ground to interfere in the matter.
Admittedly, the advertisement issued was for appointment to the post of Asstt.
Professor in History and from the informations furnished by the State Government as
contained in Annexure R/2 dated 30.6.2004 so also on considering the information issued
by Jiwaji University, Gwalior vide Annexure R/3, it is seen that a candidate who is post
graduate in Ancient Indian History, Culture and Archeology has to study various subjects
consisting of 18 papers in four semesters. In this course the subjects indicated included
Political History (600 B.C. to Satavahanas) Political History of India (Kushanas to 647
A.D.) likewise various other subjects are given in the semester and subjects prescribed in
this course and if the same is compared with the subjects prescribed for post of graduate
study in History, it is seen that semester are entirely different subject and topics of study
and the Historical periods are also different. In fact the subject in both these course are
entirely different and it cannot be said that the course are identical and therefore, the
basic qualification for appointment to the post is fulfilled. A perusal of the details
furnished by Shri R.D.Jain, Senior Adocate along with return, so also advertisement
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Annexure R/4 dated 27.9.1990 clearly indicates that the post of Asst. Professor in History
and Asstt. Professor in Ancient History with Culture and Archeology are different and the
qualification acquired by the petitioners i.e. M.A. Ancient History with Culture and
Archeology is a different course and is not the prescribed minimum qualification for
appointment to the post of Asstt. Professor in History. As submitted by Shri R.D.Jain,
senior Advocate prescribing minimum qualification and the requirement for a particular
post is determined by the expert bodies and the same is done by the competent authorities
on the basis of the evaluation and requirements for discharging duties in a particular post.
This is purely within the domain of an expert authority and courts cannot step into the
shoes of such expert authority and substitute their decision with that of it own, until and
unless it is found that the decision is vitiated being contrary any statutory rules or law.
Considering the facts and circumstances of the case and in the back drop of the
aforesaid and taking note of the difference in course as is evident from the material
produced by the Madhya Pradesh Public Service Commission. I find no ground to
interfere in the matter nor can it be said that in rejecting the candidature of petitioners,
respondent No.2 has committed any error warranting interference in these proceedings.
Considering the same, petitions are dismissed and the interim order passed
permitting the petitioners to appear in the interview also vacated.
Accordingly, petitions are dismissed without any order as to cost.
***
448
HIGH COURT OF MADHYA PRADESH : JABALPUR WRIT PETITION NO.9091 OF 2003
(O.A. NO.2433 OF 1994) D.D. 2.12.2004
HON’BLE MR. JUSTICE A.K.SHRIVASTAVA
Onkar Nath Pandey & Anr. ... Petitioner Vs. The State of M.P. & 5 Others ... Respondents
Appointment – Irregularities in Selection Process:
The petitioners who were unsuccessful in the selection to the recruitment to the post of Principal in Higher Secondary School, have challenged the selection and appointment of private respondents on the ground that they do not possess the prescribed qualification and experience – The selected candidates were found to possess the prescribed qualification and experience – Hence petitions dismissed. Held: Since all the petitioners were well aware that what were the criteria of selection and after going through the advertisement they participated in the selection process and if on scrutiny they were not selected, they are estopped from challenging selection process.
Cases referred: 1. (1996) 9 SCC 309 – State of U.P. Vs. Harish Chandra & Others 2. (1997) 4 SCC 426 – University of Cochin Vs. N.S.Kanjoonjamma 3. AIR 1998 SC 375 – Government of Orissa Vs. Haraprasad Das 4. (2001) 10 SCC 237 - Sri Kant Tripathi Vs. State of U.P. 5. AIR 2001 SC 2196 – Union of India Vs. Tarun K.Singh
ORDER
In these four petitions since common question is involved, therefore, they are
being decided by this common order.
(2) The petitioners have challenged the selection and appointment of private
respondents on the post of Principal, Higher Secondary School. According to them
selection and appointments were not accorded in terms of the advertisement (Annexure
P/1), for convenience, annexures which are referred in W.P.No.9091 of 2003 are being
considered for the disposal of these petitions. The State of Madhya Pradesh in order to
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recruit 150 posts of Principal in High Secondary Schools published an advertisement
(Annexure-P/1). In this advertisement certain conditions for selection and appointment
were made and inter alia two conditions were that a candidate should be a
Teacher/Lecturer having five years teaching experience in High Secondary School and
another was that a candidate, who is holding a Green Card shall be given two years
relaxation of the age. According to petitioners since private respondents were not
possessing qualification of five years experience as Lecturer/Teacher in Higher
Secondary School, therefore, their selection and appointment are in contravention to the
advertisement. It has also been printed out that one of the respondent in place of giving
two years age relaxation, as he was holding Green Card, benefit of five marks was given
to him which is contrary to the advertisement, and therefore, the selection and
appointment are contrary to the advertisement. It has been prayed by the petitioners that
these petitions be allowed and the appointment of respondents be cancelled and
petitioners may be appointed on the post of Principal.
(3) In order to substantiate the submissions my attention has been invited to a
document which is enquiry report dated 31.5.2000 given by the Committee duly
constituted under the instructions of the Government. It be seen that on 11th August,
1994 select list was issued and on 13.10.1994 appointment orders were issued and these
petitions were filed in the month of September, 1994 and July 1995.
(4) Shri A.P.Shroti learned counsel appearing for State of Madhya Pradesh has
submitted that there was a complaint in regard to selection and appointment and therefore
an enquiry was made by a Committee constituted by the Government and at the first
instance. appointment of 17 persons were found to be doubtful. Later on, on detailed
scrutiny of the case out of the 17 persons, four persons were found eligible for
appointment and their appointments were otherwise also found to be correct and out of
remaining 13 persons, it was found that two persons, namely, Ram Prasad Gupta and
Shivswaroop Pateria were not meeting experience criteria as they did not have 5 years
teaching experience in Higher Secondary School. Before any action could be taken
against these two persons, namely, Ram Prasad Gupta and Shivswaroop Pateria, one of
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them namely Ram Prasad Gupta approached the M.P. State Administrative Tribunal by
filing an application bearing O.A.No.3835 of 2001 in which on 21.11.2001 interim relief
was granted and the respondents were directed to maintain status quo. According to
learned counsel on account of the stay order passed by the Tribunal, enquiry could not be
proceeded further, in regard to Ram Prasad Gupta and Shivswaroop Pateria. It has
further been contended in the return that the cases of remaining 11 persons are still under
investigation. It has also been pleaded that the enquiry officer has already been
appointed to carry on the spot verification and appropriate decision in respect to those
persons would be taken on receipt of the enquiry report. According to Shri Shroti return
which has been filed in W.P.No.9746/2003 respondents of that petition No.5, 6, 3, 9, 11,
12 and 13 were found to be rightly appointed whereas appointment of respondent No.3
Ramprasad Gupta has been found to be illegal and, therefore, action was initiated against
him. So far as respondents 4, 7 and 10 are concerned, their cases have been sent for spot
verification and, therefore, today nothing can be said about validity of their appointment.
For respondent No.6 it is said that after enquiry his appointment was found to be legal as
he was found to be eligible for appointment.
(5) Shri Shroti, learned counsel appearing for respondent No.1 has further submitted
that the names of petitioners in W.P.No.9091 of 2003 are neither in select list nor in the
waiting list and, therefore, they do not have any locus standi to challenge selection and
appointment. He has also contended that the name of Hari Prasanna Dwedi, who is
petition in W.P.No.9748/2003, was also not in the select list as well as in waiting list and,
therefore, he is also not having any locus standi to challenge the select list and
appointment. Apart from this submission Shri Shroti and Shri Tiwari learned counsel
have also submitted that since all the petitioners did apply their candidature and since
they have not been selected, now they cannot challenge selection process as well as
selection and the appointment of private respondents. In support of their contention, they
have placed reliance on the cases of University of Cochin Vs. N.S.Kanjoonjamma, (1997)
4 SCC 426 and Union of India Vs. Tarun K.Singh, AIR 2001 SC 2196.
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(6) Shri Shroti, learned counsel for respondent No.1 as well as Shri Hemant
Shrivastava, learned counsel appearing for Public Service Commission have invited my
attention to Rule 17 of M.P. Education Service (School Branch) Recruitment and
Promotion Rules, 1982 and have contended that the life of the select is maximum 18
months and since this period has already expired, therefore, neither the select list nor
appointment can be challenged. In support of their contention, they have placed reliance
on the following decisions:-
(i) Sri Kant Tripathi Vs. State of U.P. (2001) 10 SCC 237
(ii) State of U.P. Vs. Harish Chandra and others (1996) 9 SCC 309
Shri Udayan Tiwari, appearing for private respondents apart from above said case laws,
has also placed reliance on the decision in the case of Government of Orissa Vs.
Haraprasad Das, AIR 1998 SC 375.
(7) Apart from aforesaid submissions it has been vehemently contended by Shri
Hemant Shrivastava, appearing for Public Service Commission that if this Court comes to
the conclusion that certain candidates were wrongly selected and given appointments
dehors conditions laid down in the advertisement, then, this Court should confine its
order against those persons only and entire selection process should not be quashed.
(8) One important fact which cannot be marginalised and blinked away is that all the
petitioners who are now challenging the selection and appointment of respondents, were
candidates as they submitted their applications for their appointment. It is equally true
that except petitioners Anil Nema, Ramraj Tripathi and Ku. Prem Lata Sharma, none of
the petitioners were selected. These three candidates were wait listed as their names are
appearing in the supplementary list. What would be the fate of those candidates who
appeared in the selection process and were not selected has been answered by the Apex
Court in the case of N.S.Kanjoonjamma (supra). In this case the Apex Court in page 4
has held as under:-
“4. It is not in dispute that Rules 14 to 17-A having specifically been adopted by the aforesaid Resolutions of the Syndicate and approved by the University, he power of the University to adopt the Rules has not been
452
challenged. The aforesaid Resolutions do indicate that the University has properly made Rules 14 to 17-A applicable in relation to the recruitment of non-teaching staff to the University in certain posts, viz., Class I, Class III and Class IV. In furtherance thereof, the Vice-Chancellor was authorised by the Syndicate to advertise the posts and constitute a Selection Committee for recruitment of the candidates. In furtherance thereof, a Committee was constituted. Advertisement came to be made. It is seen that when the general rules have been made applicable there is no necessity by the University to make a special reservation rule for special recruitment. Therefore, the non-mention of the special recruitment in the Resolution is of little consequence. As seen, the Syndicate adopted the Rules in relation to the non-teaching staff of the University. As a consequence, the advertisement came to be made for special recruitment of the Scheduled Castes and Scheduled Tribes to the posts of reserved for them. In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure.” [emphasis supplied)
(9) According to me since all the petitioners were well aware that what was the
criteria of selection and after going through the advertisement they did apply their
candidature for selection and appointment and if on the scrutiny they were not selected,
they are estopped from challenging selection process since they themselves adopted
selection process and appeared. Thus there is sufficient force in the contention of Shri
Shroti and Tiwari that all the petitioners do not have any locus standi to challenge
selection process.
(10) The Government received a complaint and in furtherance to it a Committee was
constituted having 4 members presided by District Education Officer. In the return it has
been stated that on account of the stay order passed by the Tribunal further proceedings
of the Committee has been stopped in respect of Ramprasad Gupta. Since the
Government itself has taken a decision that the candidature of Respondents
Shyamnarayan Sharma, Mohammed Habif and Smt. Urmila Tomar are to be tested by the
Committee that whether they are having requisite qualification or not, the Committee
may proceed to do so and may pass necessary order for them. Needless to emphasis, if
any adverse order is to be taken against them, an opportunity of hearing must be provided
453
to them, these respondents shall be free to satisfy that they were rightly selected and
appointed.
(11) In view of above all these petitions are disposed of.
***
454
MAHARASHTRA PUBLIC SERVICE COMMISSION
455
MAHARASHTRA PUBLIC SERVICE COMMISSION TRANSFER APPLICATION NO.2 OF 2003
WRIT PETITION NO.1372/2003 D.D. 4.11.2003
Hon’ble Shri R.Vasudevan (Vice-Chairman) Hon’ble Shri P.K.Gaikwad (Member) (J)
Dr.Harish Manilal Pathak ... Petitioner Vs. Maharashtra Public Service Commission ... Respondent Recruitment - Short listing of candidates to be called for interview: The applicant was a candidate for one post of Police Surgeon Class-I post – Out of 13 candidates available for the post only 5 candidates were called for interview by adopting the criterion of short listing as provided under the Rules – The applicant who was not called for interview challenged the short listing criterion - Rule 7(2) of Rules of Procedure provides that number of candidates to be invited for interview should not exceed 10 times the number of posts to be filled – The Applicant contended that as there were only 12 candidates found eligible P.S.C. ought to have called all the 12 candidates for interview – The Tribunal rejected the said contention and dismissed the application. Held: For the expressions “normally” and “should not exceed 10 times the number of posts to be filled” give discretion to the P.S.C. to fix ratio depending on the particular occasion the applicant has not been able to establish that the criterion fixed by the MPSC is irrational or arbitrary. Case Referred: AIR 1995 SC 77 - M.P. Public Service Commission Vs. Navnit Kumar Potdar
ORDER Heard Shri. A.V.Bandiwadekar, learned advocate for the applicant and Shri
N.K.Rajpurohit, learned Presenting Officer for the Respondents.
2. The applicant states that he was appointed as Lecturer w.e.f. 12.7.1998 at Seth
B.S. Medical College, Parel, Mumbai. On 9.3.2001 he was promoted as Associate
Professor and continues as such. He further states that as per the recruitment rules
framed for the post of Police Surgeon in the Directorate of Health Services, appointment
to the said post should be made either by transfer of suitable person holding the post of
456
Lecturer in Forensic medicine in Government Medical College for a period of at least 4
years by nomination amongst the candidates, who are not more than 35 years of age and
have passed M.D. Degree with experience in the field of forensic medicine for not less
than 4 years after acquiring post graduate qualification. The rules also provide that
preference may be given to candidates possessing experience of general administration in
hospitals. The upper age limit is 35 which may be relaxed if the candidate is already in
Government service. In response to an advertisement issued by the Maharashtra Public
Service Commission (M.P.S.C.) on 20th February 2003 inviting applications for one post
of Police Surgeon in Mumbai which is a class-I post, the applicant submitted his
application. The applicant has taken exception to the criteria adopted by the M.P.S.C.
under the pretext of short listing eligible candidates. According to him, only 7 or 8
applications were received for filling up one post and as such there was no need to short
list candidates. He contends that on the contrary, the MPSC would have got a wider
range of applications, if all the candidates had been called for interview. The applicant
was intimated by MPSC by their letter of 8th May 2003 that as per the criteria fixed by
them for short listing candidates for the said post, he is not eligible to be called for
interview. As per the criteria adopted by them, only candidates with eight years of
experience are held to be eligible for being called for interview, as against the minimum
experience of 4 years prescribed under the Recruitment Rules. The applicant made a
representation dated 13.5.2003 that he may be called for interview. By order dated 23rd
May 2003 the Bombay High Court directed the Public Service Commission to interview
the applicant along with other eligible candidates and complete the process of interview
till the declaration of results “subject to further orders to be passed by this Court after
hearing petition for admission on 16th June 2003”. Subsequently by order dated 8th
August 2003, the Bombay High Court directed that the record of the Writ Petition be
transferred to this Tribunal.
3. In their affidavit in reply the MPSC, Respondent No.1 have contested the claim of
the applicant. They have stated that 17 applications (not seven, as mentioned in the
application) were received for the said post. Thus the total number of applications
received from the prima facie eligible candidates was on the high side for one post. As
457
per Rule 7(2) of the Rules of Procedure of the Commission, if the number of prima facie
eligible candidates is disproportionately large the Commission may adopt suitable criteria
for short listing candidates or hold a screening test. The criteria to be adopted depend on
the circumstances prevailing on each occasion of recruitment. This may result in non-
selection of some candidates for interview, though they fulfill the minimum requirements
prescribed in the advertisement or though they were called for interview for the same post
on earlier occasion. The Commission fixed the following criteria for the said post –
M.D. (Forensic Medicine) or equivalent application accepted by MCI and thereafter 8
years of full time experience in the field of Forensic medicine. As the applicant has only
7 years and 8 months of experience in the field of Forensic Medicine, he was not called
for interview. Five candidates fulfilling the above criteria were called for interview.
There is no provision in the rules that only teaching experience should be taken into
consideration while filling up the post of nomination. In the present case 12 candidates
were available for the post and thereafter the Commission adopted the above criteria.
4. The learned advocate for the applicant stated that the Commission had adopted
the criteria of eight years as against the minimum four years prescribed under the rules.
Relying on para 6 of the rejoinder filed by the applicant he stated that two out of the six
candidates (including the applicant) called for interview will be retiring within less than 2
years. They will not even be able to complete the probationary period. He argued that
the objective should be to call younger persons for interview. Referring to para 4 of the
affidavit-in-reply wherein Rule 7(2) of the Rules of Procedure has been relied upon, Shri.
Bandiwadekar invited our attention to the following provisions.
“(2) Normally, the number of candidates to be invited for interview should not exceed ten times the number of posts to be filled on the particular occasion. With a view to maintain that ratio, the Screening Committee appointed under rule 7(1) may adopt a criterion or decide to hold a Screening Test, for the limited purpose of short listing the candidates to be invited for interview.”
He argued that the expression with a view to maintain that ratio in the aforesaid provision
clearly rules out any discretion in favour of fixing criteria which would result in calling
less number of eligible candidates. On the other hand, the learned Presenting Officer
argued that the phrase the number........should not exceed ten times the number of posts
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clearly shows that the Commission is free to call less number of candidates than ten times
the number of posts.
5. During the course of arguments the learned advocate for the applicant stated that
by adopting the criterion of 8 years, no fresh candidate can be appointed as a Police
Surgeon. He stated that even a meritorious student will be of minimum 37 years of age
if he has to put in 8 years of service after obtaining M.D. He, therefore, argued that the
criterion prescribed is against the recruitment rules framed under Art.309 of the
Constitution of India and this amounts to altering the existing recruitment rules. He also
referred to the fact that out of 17 candidates, 12 candidates were found eligible by the
MPSC. The respondent, namely MPSC had to interview only 12 candidates for one post
of Police Surgeon and the interview could be completed within about 3 hours. In the
light of the criterion adopted by the MPSC only 5 candidates were found to be eligible
and this criterion is totally irrational. Shri Bandiwadekar relied on the judgment of the
Supreme Court in M.P. Public Service Commission Vs. Navnit Kumar Potdar 1995 AIR
77. Relying on the same judgment the Learned Presenting Officer argued that as per the
aforesaid judgment of the Supreme Court, where selection is to be made purely on the
basis of interview, if the applications for such posts are enormous in number with
reference to the number of posts available to be filled up, then the Commission or the
Selection Board has no option but to short list such applicants on some rational and
reasonable basis.
6. It is not under dispute that the MPSC relied on Rule 7(2) of the Rules of
Procedure for short listing the number of candidates for one post of Police Surgeon. Nor
is it under dispute that out of 17 candidates who applied for the post, 12 were found
eligible. The MPSC adopted the criterion of experience of 8 years as against the
experience of 4 years prescribed in the recruitment rules. After adopting the said
criterion the MPSC had called for interview only 5 candidates. The applicant could not
be called for interview because he has only 7 years and 8 months of experience. The
procedure adopted in short listing the candidates is now under dispute. It is well settled
that even if the recruitment rules prescribe minimum years of experience, it is open to the
MPSC to adopt any rational procedure to fix the number of candidates who should be
459
called for interview. In this connection the law has been laid down by the Supreme Court
in M.P. Public Service Commission Vs. Navnit Kumar Potdar 1995 AIR 77. In the
aforesaid case 9 posts of Presiding Officers of Labour Courts in Madhya Pradesh have to
be filled in out of which only four posts were available to the general category
candidates. However, several applications were received in response to an advertisement
to fill up the post. In view of Section 8(3)(c) of the M.P. Industrial Relations Act 1960 it
was prescribed in the advertisement that the applicants should have practised as an
advocate or a pleader for a total period of not less than five years. Having regard to the
large number of applications to fill up four posts, a decision was taken by the
Commission to call for interview only 71 applicants, although 188 applicants were
eligible. The Supreme Court held that fixing the limit of seven and half years instead of
five years of practise for purpose of calling for interview cannot be said to be irrational,
arbitrary having no nexus with the object of select the best amongst the applicants.
Following observations of the Supreme Court in the aforesaid case are relevant.
“ In this background it is all the more necessary to fix the limit of the applicants who should be called for interview where there is no written test, on some rational and objective basis so that personality and merit of the persons who are called for interview are properly assessed and evaluated. It need not be pointed out that this decision regarding short listing the number of candidates who have applied for the post must be based not on any extraneous consideration, but only to aid and help the process of selection of the best candidates among the applicants for the post in question. This process of short listing shall not amount to altering or substituting the eligibility criteria given in statutory rules or prospectus. In substance and reality, this process of short listing is part of the process of selection. Once the applications are received and the Selection Board or the Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be short-listed, the process of selection commences. If with five years of experience an applicant is eligible, then no fault can be found with the Commission if the applicants having completed seven and half years of practise are only called for interview because such applicants having longer period of practice shall be presumed to have better experience.”
7. From the above observations of the Supreme Court it is clear that the MPSC was
justified in adopting the process of short listing the candidates. Rule 7(2) of the Rules of
Procedure states that normally the number of candidates to be invited for interview
should not exceed 10 times the number of posts to be filled in on a particular occasion.
460
The expression “normally” thus gives discretion to the MPSC to fix the number of
candidates which is less than 10 times the number of posts to be filled in. In the present
case, the number of posts to be filled in is one. The number of candidates to be invited
for interview should not normally exceed 10. However, the MPSC called for interview
only 5 candidates. According to the aforesaid judgment of the Supreme Court, where
selection is to be made only on the basis of interview, the Commission or the Selection
Board can adopt any rational procedure to fix the number of candidates who should be
called for interview. Rule 7(2) states that the number of candidates to be invited for
interview “should not exceed” ten times the number of posts to be filled in. Thus the
maximum number of candidates to be called for interview normally should not exceed
ten times the number of posts. That does not restrict the discretion of MPSC to call for
less than ten number of candidates in the present case. However, the issue involved is
whether fixing the limit of experience of 8 years instead of 4 years can be said to be
irrational, arbitrary having no nexus with the object to select the best amongst the
applicants. A line has to be drawn somewhere. The justification given by the MPSC is
that the criterion adopted depends on the circumstances prevailing on each occasion on
recruitment and the MPSC consisting of three Members decided to adopt the criterion of
8 years full time experience in the field of Forensic Medicine. The learned advocate for
the applicant relying on the affidavit in rejoinder argued that the Respondents had to
interview only 12 candidates for one post and this could have been completed within
about three hours. In this connection, he relied on the following observations of the
Supreme Court in the aforesaid case.
“If large number of applicants are called for interview in respect of four posts, the interview is then bound to be casual and superficial because of the time constraint. The members of the Commission shall not be in a position to assess properly the candidates who appear before them for interview.”
He argued that in the present case the number being limited there was no apprehension
that the interview was bound to be casual or superficial. The aforesaid observations of
the Supreme Court cannot be said to come in the way of MPSC deciding the ratio. The
extract of Rule 7(2) reproduced earlier shows that the criterion is adopted to maintain the
ratio prescribed in the aforesaid rule. The expression “normally” and “should not exceed
461
ten times the number of posts to be filled” give discretion to the MPSC to fix ratio
depending on the particular occasion. The applicant has not been able to establish that
the criterion fixed by the MPSC is irrational or arbitrary. The fact that two persons who
are on the verge of retirement have been called for interview by itself does not establish
that the procedure followed is irrational. Nor are we impressed by the argument of the
learned advocate for the applicant that the objective of short listing should have been to
call younger persons for interview instead of calling those on the verge of retirement.
The emphasis laid down by the Supreme Court in short listing is that such short listing
should be on some rational and reasonable basis. The applicant has not been able to
establish that the short listing in the present case is not on rational and reasonable basis.
8. In the light of the above, the application deserves to be rejected. Accordingly we
dismiss the application. No order as to costs.
***
462
MAHARASHTRA ADMINISTRATIVE TRIBUNAL NAGPUR BENCH, NAGPUR
ORIGINAL APPLICATION NO.240/2001 D.D. 15.3.2004
HON’BLE SHRI. G.C.TRIPATHI, MEMBER (A) HON’BLE SHRI A.L.ALASPURKAR, MEMER (J)
Dr.Nandkumar Shivram Malakolikar ... Applicant Vs. State of Maharshtra & Anr. ... Respondents Recruitment - Short Listing of candidates to be called for interview: The applicant who was not called for interview for the post of Medical Officer has challenged the criterion determined for short listing - P.S.C. had fixed the criterion of two years’ experience apart from the required qualification in the case of male candidates in Open Category and one year’s experience in the case of female candidates of Open Category – The Tribunal in view of the fact that there were more number of male candidates as compared to female candidates the criterion of longer work experience to cut down the number of candidates to be called for interview was fixed for male candidates has held that the criterion fixed for short listing was appropriate and dismissed the application. Held: As male candidates were to compete with other male candidates and the female candidates were to compete with other female candidates the question of discrimination did not arise by fixing different criterion of work experience for male and female candidates.
ORDER Heard both sides. Perused the application and Affidavit filed in reply. Also
perused the order passed by Member (A) on 31.8.2001 and the dissenting note made by
Member (J) thereon.
2. By filing this O.A., the applicant is challenging the communication dated
6.2.2001, issued by respondent no.2 (M.P.S.C.) informing that the applicant was not
being called for interview for the post of Medial Officer on the ground that in the short
listing process, the applicant did not possess the required experience, as per the criteria
determined for such short listing. The respondent no.2 has fixed the criteria of two years
experience after acquiring the required qualification, in the case of male candidates in
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Open Category and one year’s experience in the case of female candidates of open
category. Similar criteria was fixed for the male and female candidates of other
categories also.
3. The O.A. was heard by the earlier Division Bench, consisting of Shri S.D.Joshi,
Member (A) and Shri A.T.A. K.Sheikh, Member (J). By order dated 31.8.2001, the
Member (A) rejected the O.A., but Member (J) recorded a dissenting note and hence, the
matter was referred to the Hon’ble Chairman of this Tribunal. It was decided to place the
matter before a different Division Bench to decide on merits. The pleadings being over,
the C.A. was taken up for hearing by consent of the parties.
4. We may state a few facts of the case in order to pin point the issues involved in
this O.A. By advertisement dated 9.8.2000, the M.P.S.C. called for applications for
selection of candidates to fill up 807 posts of Medical Officer. The minimum
qualification prescribed for all the candidates was M.B.B.S. Degree or academic
qualification as listed in the first or second Schedule of the Medical Council of India Act,
1956. The number of posts for different categories, as earmarked to remove backlog, was
indicated in the advertisement. It appears, that there was no backlog in the Scheduled
Caste Category. The posts reserved for women in each category was also mentioned, in
case such candidates were available. The advertisement also mentioned that the
qualification mentioned in the advertisement was the minimum requirement for
eligibility, but in case the number of applications was very large compared to the number
of available posts, short listing of candidates would be done, either by conducting written
test or by determining appropriate criteria before calling the candidates for interview.
The criteria would be determined depending on the prevailing situation, at the relevant
time.
5. In response to the said advertisement, the applicant, who was already working as
a Medial Officer on adhoc basis, had filed his application before M.P.S.C. in time. The
applicant fulfilled the requirement of the minimum qualification i.e. M.B.B.S. Degree
and had one year 11 months and 23 days experience as an adhoc Medical Officer.
Respondent no.2 (M.P.S.C.) by their letter dated 6.2.2001 informed the applicant that,
464
since, large number of applications were received for the post of Medical Officers, short
listing of candidates was done on the basis of criteria, as determined as per the guideline
No.7 of the ‘Guidelines for applicants’, and since the applicant did not fulfill the said
criteria, it was decided not to call him for interview. The said letter also contained the
details of the criteria determined for short listing candidates in different categories, in the
form an Annexure. The applicant made a representation dated 21.3.2001, pointing out
that he was working as a Medical Officer since 28.4.1999 in Tribal area like Public
Health Centre, Kotgul in Gadchiroli District and requesting to be called for interview.
However, by communication dated 29.3.2001, respondent no.2 informed the applicant
that the case of the applicant was reconsidered, but no ground was found to change the
earlier decision of M.P.S.C. Being aggrieved by the said decision of M.P.S.C., the
applicant has filed the present O.A.
6. The main contention of the applicant is that the respondents have adopted
different criteria for the selection of male candidates and female candidates, in breach of
Article 16 of the Constitution of India and maintains that the criteria so fixed by the
respondents was arbitrary and bad in law. It is contended that respondent no.2 has denied
the equality of opportunity in the matter of employment by stating different period of
experience for male and female candidates. The applicant contends that there is no
rational behind making such arbitrary classification.
7. By filing affidavit-in-reply, respondent no.2 contest the say of the applicant. It is
pointed out by respondent no.2 that in view of large number of applications received in
comparison to the number of available posts, it was decided to short list the candidates to
be called for interview. It is maintained that the provision that the Commission would
adopt suitable criteria for short listing was clearly mentioned in the N.B.(5) of para 4 of
notification for the post, a copy of which is supplied to candidates along with the form of
application. It is stated that the provision of short listing is in accordance with Rule 7(2)
of the Rules of Procedure of the Commission.
8. However, the applicant does not dispute the power of the Commission for short-
listing candidates before calling them for interview. What is disputed is the set of
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criteria fixed by the Commission for such short listing. Hence, we find it necessary to
discuss the criteria fixed for short listing.
9. It is seen that the Commission has fixed the following criteria categorywise:
“ Criteria:
(A) For open posts and posts reserved for NT(D):
1. M.B.B.S. Degree or the qualification specified in the first or second schedule to the Indian Medical Council Act, 1956 and preferential qualification of Post Graduate Degree/Diploma in any branch of Medical Science, OR
(2) 2. M.B.B.S. Degree or the Qualification specified in the
first or second schedule to the Indian Medical Council Act, 1956 and thereafter two years full time experience of actual Medical/Work in Medical or Public Health Department of Employee’s State Insurance Scheme or Zilla Parishad or equivalent local body.
(B) For Posts reserved for Open(F), DT(A), DT(A)(B), NT(B), NT(B)(F), NT(D)(F) and OBC:
1. M.B.B.S. Degree or the qualification specified in the first or second
schedule to the Indian Medical Council Act, 1956 and preferential qualification of Post Graduate Degree/Diploma in any branch of Medical Science, or
2. M.B.B.S. Degree or the qualification specified in the first or second
schedule to the Indian/Medical Council Act, 1956 and thereafter one year full time experience of actual Medical/work in Medical or Public Health Department or Employees’ State Insurance Scheme or Zilla Parishad or equivalent local body.
(C) For Posts Reserved OBC (F):
1. M.B.B.S. Degree or the qualification specified in the first or second schedule to the Indian Medical Council Act, 1956 and preferential qualification of Post Graduate Degree/Diploma in any branch of Medical Science, OR
2. M.B.B.S. Degree or the qualification specified in the first or second
schedule to the Indian Medical Council Act, 1956 and thereafter six months full time experience of actual Medical Work in Medical or Public Health Department or Employee’s State Insurance Scheme or Zilla Parishad or equivalent local body. “
466
As far as the distinction made between male and female candidates, respondent no.2
points out that the State Government has laid down 30% reservation for women vide
Govt. Resolution dated 1.8.1997. The said reservation of 30% is within the different
categories of constitutional reservation. Hence, two different sub categories are
created in each category of Constitutional reservation consisting of male candidates
on one and female candidate on the other. The male candidates in a particular
category shall compete with other male candidates in the same category and same is
the case with the female candidates for the reserved posts. According to respondent
no.1, it was necessary to adopt different criteria in addition to the minimum
qualification, for male and female candidates in each category, depending upon the
number of applications received. In the Affidavit-in-Reply, respondent no.2 has
indicated in a chart the number of posts and number of applications received
categorywise. It is seen from the said chart as against 131 posts reserved for women
in the Open Category, number of applications, eligible on the basis of minimum
qualification, was 434, whereas as against 295 posts, for the male candidates in Open
Category, 2290 eligible applications were received. Thus, 434 female candidates in
Open Category were to compete for 131 posts, whereas 2290 male candidates in
Open Category were to complete for 295 posts. Under the circumstances, the
Commission decided to short list the number of candidates by fixing special criteria
in addition to the minimum qualification mentioned in the advertisement. While
fixing the criteria for the male candidates in Open Category, the criteria of additional
qualification of Post Graduate degree of Diploma was prescribed. In the alternative,
two years’ experience of actual Medical Work in specified Hospitals after M.B.B.S.
Degree was prescribed. As a result of application of the said criteria, the number of
candidates for the Open Category posts for males was reduced from 2290 to 947, who
could be called for interview. By fixing the criteria at lesser period of experience
than two years, obviously would not have reduced the number of candidates as far as
the male candidates for the Open Category posts were concerned. Hence, according
to the respondents, the whole purpose of short listing would have been defeated. It is
also to be noted that the criterion of two years’ experience was made applicable to all
467
the male candidates in Open Category, possessing M.B.B.S. Degree. Hence, the
question of discrimination did not arise.
10. Similarly, in case of the female candidates in Open Category, short listing
was required, since, there were 434 candidates possessing required qualification as
against 131 available posts. The criteria prescribed for such short listing was
additional qualification of Post Graduate Degree/Diploma or M.B.B.S. with one year
work experience. By applying these criteria, the number of candidates was reduced
from 434 to 224, which appears to be a reasonable number of candidates to be
interviewed for 131 posts, earmarked for female candidates in Open Category. We
find that had the Commission prescribed the same criterion of two years work
experience, as in the case of male candidates, in Open Category, in all probability, the
number of candidates would have fallen short of the number of posts and in that
eventuality, the short listing would have proved to be negative. It is also to be noted
that the criterion of one year work experience was applied to all the female candidates
possessing M.B.B.S. Degree, who were to compete for 131 posts in the Open
Category. Therefore, the question of discrimination did not arise.
11. We have confined our discussion only to the Open Category, since, the
applicant was to compete in the said category. Although, the applicant belonged to
the Scheduled Caste, there was no post reserved for the said category and hence, the
applicant had applied for the Open Category post.
12. Coming to the question as to whether any discrimination was made on the
basis of sex, while determining the criteria for short listing, we find that, because of
30% reservation for female candidates, 131 posts were earmarked for them in the
Open Category. The female candidates were to complete among themselves. The
number of applications received, was large compared to the number of posts. The
Commission devised the criteria of either Post Graduate Degree/Diploma or M.B.B.S.
with one year work experience to be called for interview. In similar circumstances,
the work experience fixed for the male candidates is two years work experience. The
468
question is whether the required work experience has been reduced in case of female
candidates by way of special relaxation so as to constitute discrimination on the basis
of sex. We find that, such is not the case. The question of relaxation is not involved
in the present case. Because of 30% reservation for women, two different categories
have emerged, having their individual sphere of competition. The criteria fixed by
the Commission is for each category, considering the actual number of applications
received for that category. Had there been larger number of applications for the posts
earmarked for females in Open Category, the Commission would have been
compelled to fix the criterion of longer work experience to cut down the number of
candidates to be called for interview. We find that the process of short listing and the
criteria fixed by the Commission were appropriate depending on the prevailing
situation and, therefore, we do not find any substance in the O.A.
In view of the facts and circumstances mentioned above, we proceed to pass
the following order:
ORDER
The O.A. is dismissed. No order as to costs.
***
469
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.773 OF 2004 D.D. 24.3.2004
HON’BLE SHRI A.P.SHAH & HON’BLE SHRI A.S.OKA, J.J. Dr.Chandrakant P.Taware ... Petitioner Vs. State of Maharashtra & Ors. ... Respondents Recruitment - Amendment of Recruitment Rules: The petitioner who was appointed as Joint Director (Dental) of Medical Education and Research and given additional charge of Director filed A.No.802 of 2003 before the Maharashtra Administrative Tribunal, Mumbai seeking among other things Amendment of Recruitment Rules by providing promotional channel to that post from the post of Joint Director of Medical Education - The Tribunal as per judgment dated 10.12.2003 rejected the application but directed the State Government to form a Committee seeking report within three months and thereafter finalise the Rules for appointment for the post of Director as per the proviso to Article 309 of the Constitution – The petitioner did not challenge the said order of the Tribunal – In the meantime respondents 1 to 3 without waiting for the submission of the report of the Committee constituted as per the judgment of the Tribunal initiated recruitment process for the post of Director – The petitioner applied for being considered for the said post - By communication dated 8.3.2004 MPSC declined to call the petitioner for interview on the ground that he did not possess the requisite qualification – Aggrieved by the same the petitioner filed the present petition – The High Court in view of the fact that the petitioner did not immediately challenge the order of Tribunal but applied for the post and only after his selection was rejected he filed this petition, rejected the petition as devoid of merit. Held: As per the existing Rules, the petitioner did not possess the necessary qualification. When the post of Director is vacant for more than one year the petitioner cannot claim that the post should not be filled in unless Rules are framed under Article 309 of the Constitution.
ORDER 1. Heard the learned Counsel appearing for the parties. By this petition under
Article 226 of Constitution of India, the petitioner has challenged the judgment and order
dated 10th December 2003 passed by Maharashtra Administrative Tribunal by which
Original Application No.802 of 2003 was rejected. A prayer is made in this petition for
quashing the Recruitment Rules dated 25th May 1973 and communication dated 8th
March 2004 issued by Respondent No.4.
470
2. On 25th May 1973 the State Government framed Recruitment Rules for the post of
Director of Medical Education and Research (DMER) (hereinafter referred to as the
Director). On 20th December 2001 the petitioner was appointed as Joint Director
(Dental) of Medical Education and Research through Maharashtra Public Service
Commission (hereinafter referred to as M.P.S.C.). On 31st December 2002 vacancy arose
for the post of the Director and therefore the petitioner was given additional charge of the
post of the Director. An advertisement dated 10th September 2003 was issued by
M.P.S.C. by which applications were invited for the post of Director which was to be
filled in by nomination. The petitioner filed Original Application No.802 of 2003 before
Maharashtra Administrative Tribunal, Mumbai praying for following reliefs:
(1) be direct the respondent Nos.1 to 3 to amend the recruitment rules dated 25.5.1973 of the post of Director of Medical Education and Research (hereinafter referred to as D.M.E.R. for short) by providing promotional channel to that post from the post of Joint Director of Medical Education and Research (Dental).
(2) To declare that the existing vacancy in the post of D.M.E.R. is available for
the promotional quota.
(3) The requisition/communication dated 9.7.2003 by the State Government to Respondent No.-M.P.S.C. be quashed, which is based upon the existing Rules dated 25.5.1973.
(4) Quash and set aside the advertisement dated 11.9.2003 issued by the
respondent No.4 for filling the post of D.M.E.R. by way of nomination.
(5) A direction may be given to respondent nos.1 to 2 finalise the draft recruitment rules for the post of D.M.E.R. and to take further steps on the basis of the same.
3. By judgment and order dated 10th December 2003, the Tribunal rejected the said
Application. However, while rejecting the Application directed the State Government to
form a committee as mentioned in paragraph No.23 of the judgment and seek its report
within a period of 3 months and thereafter finalise the rules for appointment for the post
of Director as per the proviso to the Article 309 of the Constitution of India. It was
directed that the rules shall be framed in the light of the report of the Committee. The
471
petitioner did not challenge the said order of the Tribunal immediately. It appears that a
tentative seniority list as on 1st January 2004 of the Gazetted Officers regularly appointed
to the post of Joint Director (Medical) on the establishment of Director of Medical
Education and Research was published by the State Government. It appears that
Respondent Nos.1 to 3 without waiting for the submission of the report of the Committee
constituted as per the judgment of the Tribunal initiated recruitment process for the post
of Director. The petitioner applied for being considered for the said post. By
communication dated 8th March 2004, M.P.S.C. declined to call the petitioner for
interview as the petitioner was not holding requisite qualification and the petitioner did
not furnish requisite documents. The present petition has been filed on 20th March 2004.
4. The learned Counsel for the petitioner submitted that Respondent Nos.1 to 3
without finalising the Recruitment Rules as per the Proviso to Article 309 of Constitution
of India should not have commenced the recruitment process to the post of Director on
the basis of non-statutory Rules dated 25th May 1973. He further submitted that when
Committee of experts as directed by the Tribunal was constituted, the State Government
ought to have framed Rules on the basis of recommendations of the said committee and
only thereafter should have initiated the process of filling the post of the Director. The
learned Counsel further submitted that the petitioner was entitled to continue to hold
charge of the post of the Director till proper appointment was made after framing the
Rules under proviso to Article 309 of Constitution of India. The learned counsel further
submitted that the Maharashtra Administrative Tribunal totally ignored that the General
Administration Department of the State Government had issued Circular dated 16th
August 2002 instructing all the Departments to notify the Recruitment Rules under
proviso to Article 309 of Constitution of India and unless the rules are framed, no
requisition should be sent to M.P.S.C. for filling the posts. He submitted that the
Tribunal ought to have held that the Advertisement dated 10th September 2003 issued by
M.P.S.C. was in contravention of the said circular dated 16th August 2002.
5. We have considered the submissions made by the learned Counsel of the
petitioner. In the Original Application filed by the petitioner a prayer was made for
472
quashing and setting aside the advertisement dated 10th September 2003 issued by
M.P.S.C. and directing Respondent Nos.1 to 3 to amend the Recruitment Rules by
providing promotion channel to the post of Director from the post of Joint Director of
Medical Education and Research (Dental). The case of the petitioner before the Tribunal
was based on alleged discrimination. According to the petitioner the Officer holding the
post of Joint Director (Dental) cannot be denied promotion to the post of Director. The
argument of discrimination was rejected by the Tribunal in paragraph No.9 of the
judgment. The Tribunal rejected the prayer made by the petitioner and while rejecting
the Original Application filed by the petitioner, a direction was issued to State
Government to constitute a Committee. When substantive prayers made by the petitioner
were rejected by the Tribunal, the petitioner did not approach this Court immediately. On
the contrary, the petitioner participated in the new selection process initiated at the
instance of Respondent Nos.1 to 3. The new selection process was initiated without
framing rules under the proviso to Article 309 of Constitution of India and the petitioner
was fully aware of the said fact. The petitioner was also aware that an expert Committee
as per the judgment of the Tribunal was constituted by the Government. If the petitioner
was really aggrieved by the rejection of the Original Application, the petitioner would
have immediately approached this Court. However, the petitioner applied for considering
himself in the selection process and only after his application was rejected by the
communication dated 8th March 2004, the petitioner has chosen to approach this Court on
20th March 2004.
6. The contention raised by the petitioner as regards violation of fundamental rights
under Article 14 and 16 of Constitution of India was rejected by the Tribunal. We find
no fault with the approach of the Tribunal. As per the existing rules, the petitioner does
not possess necessary qualification. When the post of Director is vacant for last more
than one year, the petitioner cannot claim that the post should not be filled in unless
Rules are framed under the proviso to Article 309 of Constitution of India.
7. There is no merits in the petition and same is rejected with no order as to costs.
***
473
MAHARASHTRA ADMINISTRATIVE TRIBUNAL, MUMBAI BEANCH AT AURANGABAD
ORIGINAL APPLIATION NO.408 OF 2003 & CONNCTED CASE D.D. 9.6.2004
HON’BLE SHRI P.G.KURSE – MEMBER (A)
Pradeep Nagorao Jadhav & Others ... Applicants Vs. The State of Maharashtra & Others ... Respondents Examination - Mistakes in the Question papers: The applicants appeared for limited competitive examination conducted by the P.S.C. for recruitment to the post of P.S.I. from among departmental candidates – There were typographical errors in Paper-I of Marathi, English and General Knowledge wrong caption – Paper No.2 (with book) Law and Acts adopted by Sales Tax Department, Office Procedure of Sales Tax Department, Accountancy etc., was printed instead of Paper-II Law and Essential Knowledge having nexus with the working in Police Department - The applicants contended that they were misled on account of the above mistakes and some candidates took advantage of the mistake by answering the papers by looking into the books – The enquiry conducted into the alleged instances by high power committee negatived the said allegations – Therefore the Tribunal dismissed the applications. Held: In any case, some 16,000 candidates had appeared at the limited competitive examination. For seeking the relief of cancellation of the examination on the ground of the same having been vitiated it ought to be demonstrated that there was a failure/collapse of the system. A couple of isolated alleged instances of examination mal practices, even if they be true, cannot lead to an inference that there was systems failure. Few isolated instances, should there be such instances call for being dealt with in a different manner individually. Cancellation of the examination cannot be and is not an answer to it. In our view there is not even an iota of material to indicate that there was systems failure.
ORDER
Shri S.G.Karlekar, learned Counsel has addressed arguments on behalf of
applicants in both the original applications and Shri R.M.Borde – learned Counsel has
addressed his submissions on behalf of respondent no.4, Maharashtra Public Service
Commission (M.P.S.C. for short). S/shri A.S.Wable and D.T.Dewane – learned
Presenting Officers appear on behalf of respondent nos.1 to 3.
474
2. Admit. The learned Counsel for the applicants presses for final adjudication at
the stage of admission itself. Since no serious objection is raised by the learned
Presenting Officers and the learned Counsel for respondent no.4 and since final
arguments have been addressed at length we are finally deciding the original applications
at the stage of admission itself.
3. The lone applicant in O.A.No.408 of 2003 represented by learned advocate Shri.
S.B.Pulkundwar and M.D.Narwadkar appeared at the limited competitive examination
conducted by the M.P.S.C. for recruitment to the posts of Police Sub-Inspectors (P.S.Is)
from among the departmental candidates from Nanded Centre. While the six applicants
in O.A.No.421 of 2003 represented by learned advocate Shri S.G.Karlekar appeared at
the said examination from Aurangabad Centre. The State of Maharashtra and the Joint
Secretary to Government of Maharshtra in Home Department are respondents 1 and 2
respectively. And the Collector, Nanded and the Collector, Aurangabad respectively are
respondents No.3. As already noted M.P.S.C. is respondent No.4 which is the agency
authorised to carry out recruitment/selection process for appointment to the posts of
P.S.I.s among others. The responsibility of actual conduct of the written examination, its
supervision and overseeing is entrusted to the respective Collectors through their
Resident Deputy Collectors.
4. The limited competitive examination comprised of three parts viz. written
examination, physical test and oral and personality test. The written examination was
conducted/held on 29.6.2003 at seven centres viz. Mumbai, Pune, Nashik, Aurangabad,
Nanded, Amaravati and Nagpur. The applicants were admitted to the said examination at
Nanded and Aurangabad Centres respectively as noted in paragraph 2 above.
5. The written examination which is of total 300 marks consists of two papers viz.
Paper-I – Objective paper on Marathi, English and General Knowledge of two hour
duration carrying 200 marks and Paper-II, a conventional/narrative paper of Law and
essential knowledge having nexus with the working in Police Department [Omitted as it
is in Hindi] of three hours duration carrying 100 marks. Both the papers are without
475
books. The examination in relation to Paper-I was held on 29.6.2003 between 11 a.m.
and 1 p.m. and the examination in relation to Paper-II was held between 2.30 p.m. and
5.30 p.m. on the same day.
6 It appears that there were three sub-centres at Nanded at which the said
examination was held viz. 1) Yashwant Mahavidyalay, Nanded 2) Science College,
Nanded and 3) Mahatma Phule High School, Baba Nagar, Nanded. And it appears that
the lone applicant in Original Application No.408 of 2003 took the examination from
Sub-Centre 3, Mahatma Phule High School, Baba Nagar, Nanded.
7. At Aurangabad centre, it appears, there were five Sub-Centres viz. S.B. Arts and
Commerce College, S.B. Science College, S.B. Boys High School, Gujarati High School
and Baliram Patil Junior College. It further appears that the applicant No.1 in Original
Application No.421 of 2003 took the examination at the Sub-Centre at S.B. Boys High
School, applicants nos.2, 3 and 4 at the Sub-Centre at S.B. Arts and Commerce College
and applicants nos.5 and 6 at the Sub-Centre at Baliram Patil Junior College.
8. The grievance of the applicants is that Paper-I on Marathi, English and general
knowledge contained several typographical errors. So far as Paper-II is concerned their
grievance is that, it carried a wrong title/caption “Paper No.2 (with book) Law and Act
adopted by Sales Tax Department, Office Procedure of Sales Tax Dept., Accountancy
etc.,” which facilitated a large number of candidates in attempting the said paper with the
aid of books by procuring the books. This had placed the applicants at a disadvantage
who had studied sincerely by availing leave and who had sincerely attempted the said
paper without the aid of the books.
9. We may extract applicants’ own averments to the extent relevant in order to
appreciate their grievance. Here is what has been averred by the applicants in Original
Application No.421 of 2003.
“10. ........................................................................................................ The applicants further say that the Paper-I had several typographical mistakes.
476
11..........................................................................................................................The applicants say and submit that Paper-II for the said examination ws given to the candidates and to the utter surprise of candidates like applicants who had studied sincerely, the question paper for Paper-II contained a heading “With-Book”. The subject shown on the question paper also wrongly read as “Law and Acts adopted by Sales Tax Department, Office Procedure of Sales Tax Dept., Accountancy etc.”............................................................................ 12. “The applicants submit that they having prepared for the said examination, on receiving the question paper immediately started writing the answers. The applicants further submit that they were shocked to se that majority of candidates at all the three centres, where the applicants appeared, procured books for themselves and taking advantage of the heading on the question paper “With Book” started writing their answer sheet with the help of books. 13. The applicants further say and submit that they complained to the respective invigilators, who expressed their helplessness to stop the candidates from using the books for solving Paper No.II in view of the clear heading on the top of the question paper which reads as “With Book”. 14. The applicants submit that at the S.B. Boys High School and S.B. Arts and Commerce College centre after some commotion and confusion as regards the heading “With Book”, amongst the candidates like the applicants who had studied sincerely, the Centre Chief at the respective centres sought clarification from respondent no.3. The applicants further say that after about one hour after the start of Paper no.II the concerned Officer from the respondent no.3’s office reached the respective centres and after seeing the question paper made efforts to contact the respondent no.4. The applicants submit that almost at the fag end of the time given for paper no.II, the respondent no.3’s officials got conformation from the respondent no.4 that the heading on the question paper no.II “With Book” was a mistake. 15. The applicants further say ad submit that by the time it was confirmed from respondent no.4 that the heading “With Book” was a mistake and efforts were made to take away the books from the candidates, the candidates who used books for answering paper no.II had already finished/attempted substantial part of paper no.II and thereby the damage/prejudice was already caused to sincere candidates like the applicants.
477
16. The applicants no.5 and 6 say and submit that at their centre at Baliram Patil Junior College the candidates who used books taking advantage of the heading “With Book” procured books for themselves from their residential quarters nearby and attempted the entire paper no.II with the help of books. 17. The applicants say and submit that they had all sincerely prepared themselves for the said examination and therefore the unfair and undue advantage gained by the candidates who used books for answering paper no.II has caused great prejudice to the applicants and other similarly situated candidates.”
10. The following are the substantive reliefs sought:-
“A) The examination conducted by the respondent no.4 examination for appointment of departmental Police Constable to Assistant Sub-Inspector to the post of Police Sub-Inspector, held on 29.6.2003 be cancelled;
B) The respondent no.4 be directed to conduct the examination for appointment of departmental Police Constable to Assistant Sub-Inspector to the post of Police Sub-Inspector afresh as expeditiously as possible.”
11. Identical averments have been made in Original Application No.408 of 2003.
The reliefs sought are also absolutely identical.
12. Both respondents nos.3 and 4 have filed affidavits in reply. Both the
respondents have made categorical statements that the examination in relation to Paper-
II on “Law” was conducted in a fair, proper and transparent manner in which it was
required to be conducted and that the candidates were not allowed to resort to and did
not resort to unfair means and/or use of books while solving paper II at any of the
Centres/Sub-Centres notwithstanding wrong caption at the top of question paper II
appearing through printing mistake.
13. So far as the alleged printing mistakes in Paper-I are concerned it has been
averred by respondent no.4 that the same are being analysed by the M.P.S.C. and that
necessary action will be taken according to the Rules of M.P.S.C. in all such cases. In
other words appropriate allowance or weightage as may be warranted would be given
uniformly to all the candidates so that there would be no question of causing prejudice to
478
any of the candidates on account of printing mistakes in paper I. This should set at rest
the grievance of the applicants in so far as alleged printing mistakes in paper I is
concerned.
14. It appears that in reference to news items appearing in certain dailies the
respondent no.4 – M.P.S.C. had also issued a press release on 4.7.2003. We may
extract the said Press Note/Press Release:-
[Omitted as it is in Hindi]
15. In paragraph 35 of the affidavit in reply of respondent no.4 in Original
Application No.421 of 2003 (para 37 of the affidavit in reply in Original Application
No.408 of 2003) it has been averred as follows:-
“35. The deponent submits that the Maharashtra Public Service Commission had conducted the examination at seven District centres. There were total 18,337 applications received by the M.P.S.C. and as per the information available with the M.P.S.C. approximately 16,000 candidates appeared for the examination. It is submitted that the petitioner is trying to gain wrongful advantage of the title of the question paper no.II. It is submitted that the fate of more than 16,000 candidates cannot be lightly disturbed on applications tendered by a few candidates.”
16. From the affidavits in reply and the documents/papers annexed the following
positions emerge prominently:-
(i) Detailed instructions were given to the prospective candidates in regard to the limited competitive examination as contained in Annexure “A” appended to Govt. in Home Department’s Circular dated 24.2.2003. We may extract the relevant portion:-
[Omitted as it is in Hindi]
(ii) Detailed instructions regarding seating arrangement and
organisation/management of the examination were given by the M.P.S.C. to the concerned Collectors and Centre in charge by letter dated 20th June, 2003. In the said letter on the front page itself it is clearly stated as follows:-
[Omitted as it is in Hindi]
479
(iii) This position has again been reiterated in paragraph 7 of the said communication as follows:-
[Omitted as it is in Hindi] (iv) Appropriate instructions were printed on the admission letters/hall
tickets issued to the candidates under the caption special instructions. Special instruction nos.7 and 8 contain a warning and spell out the consequences of violation of the instructions. The applicants themselves have referred to these special instructions in their Original Applications. (Paragraphs 15 and 19 of the respective original applications).
(v) Very responsible officers namely the Resident Deputy Collectors and
Officers of the rank of Deputy Collectors were entrusted the responsibility of Centres in charge and sub-centres-incharge respectively. A briefing session/rehearsal was held 28.6.2003 (a day prior to the examination) at which the Sub-Centres in charge along with their assistants – Supervisors and Invigilators etc., it appears, were present. We may extract the minutes of the said meeting to the extent relevant (R-2 Page 46 of O.A.No.408 of 2003):-
[Omitted as it is in Hindi] (vi) Chairman and Members of M.P.S.C. S/shri C.D.Singh, Dr.Solunke and
Ajit Warty had overseen the conduct of the written examination. Dr. Solunke was personally present at Nanded Centre.
(vii) M.P.S.C.’s Under Secretaries Smt. Sandhya Sawant, Smt. Patawardhan
and Superintendent Shri More had been deputed to Aurangabad Centre for co-ordinating and observing the conduct of the examination. Similarly Under Secretary Shri P.M.Achrekar, Superintendent Shri M.K.Dixit and employees/clerks Shri Dawane and Shri Munj had been deputed to Nanded Centre. They had kept visiting the Sub-Centres during the course of the examination. For the purpose of illustration we may extract the report of Under Secretary Shri P.M.Achrekar at Exbt. R3 page 61 in O.A. No.408 of 2003:-
[Omitted as it is in Hindi] (viii) The same position has been reported by Collector, Aurangabad in
relation to Aurangabad Centre which is at page 52 in O.A.No.421 of 2003. We may extract the relevant portion:-
[Omitted as it is in Hindi]
480
(ix) There are no two errors/mistakes – one “With Book” and two “Law and Acts adopted by Sales Tax Dept. Office Procedure of Sales Tax Dept., Accountancy etc.” – as sought to be made out by the applicants. But there is only one single composite error/mistake ‘PAPER NO.2 (With Book) Law and Acts adopted by Sales Tax Dept., Office Procedure of Sales Tax Dept., Accountancy etc.” and that it is a apparent, manifest and obvious error would be clear from the text of the question paper which essentially pertains to Law and essential knowledge having nexus with the working in Police Department” to any person of ordinary prudence. That the entire caption is erroneous would be obvious to any person of ordinary prudence. If the applicants were not misled by the wrong title/caption there is no reason to apprehend or to presuppose that the rest including the invigilators, Supervisors, Observers, the Sub-Centres in charge and the Centres in charge would have been misled or would have been confused even for a moment. It is preposterous to presume that others including senior and seasoned officers are divorced of ordinary prudence/common sense while a few of them like the applicants alone are possessed of ordinary prudence/common sense.
(x) There are averments of respondent no.4 that the sealed packets
containing the question papers were opened ten minutes prior to the commencement of the examination when the mistake that was staring at everybody was noticed, that immediately the MPSC clarified/confirmed telephonically to all the Centres in charge followed up by fax message that it was indeed a printing error.
17. In the aforestated circumstance it is impossible to believe the version put up by
the applicants. In our considered view it is absurd to suggest that a large number of
candidates went out of the examination hall, even to their residence, and procured books
for themselves. All this appears to be imagination beyond the comprehension of any
person of ordinary prudence and beyond the real not merely of probability but even of
possibility.
18. In their affidavits in rejoinder the applicants have pointed out some seven
instances of the candidates allegedly having made use of books while solving question
paper no.2. Curiously only two instances have been attributed to personal knowledge
and the remaining five to hearsay.
481
19. In compliance with the directions of this Tribunal dated 4.9.2003, respondent
no.4 M.P.S.C. has caused an inquiry to be conducted into the alleged instances by
constituting a high power committee comprising of Senior Member Dr. B.S.Solunke and
Member Shri B.S.Mohite. The report of the said Committee and its accompaniments
have been annexed to the affidavit in Sur-rejoinder filed on behalf of respondent no.4
(sworn on 19.11.2003 at Bombay). The report conclusively and unequivocally holds
that there is no truth and/or substance whatsoever in the allegations. We may extract
paragraphs 4 to 8 of the said report:-
[Omitted as it is in Hindi]
20. Ld. Counsel for the applicants raises a serious objection that the enquiry
committee ought to have examined the answer sheets of the seven candidates in order
to ascertain whether it appeared that they had indeed made use of the books while
solving question paper no.2. According to ld. Counsel for the applicants that was the
spirit of this Tribunal’s interlocutory order dated 4.9.2003.
21. We overrule the said objection. M.P.S.C. is a Constitutional Authority. It is
competent to decide about the manner in which it ought to proceed in any matter. The
Enquiry Committee has examined the concerned candidates, the concerned invigilators,
Supervisors and the Sub-centres in charge. The manner/mode adopted by the Enquiry
Committee, in our view, is unexceptionable. Just for the purpose of highlighting power
of Public Service Commissions we may extract paragraphs 25 and 26 of U.P.P.S.C. Vs.
Subhash Chandra Dixit reported in AIR 2004 SC 163. In the said case adoption of
scaling system to eliminate variation in marking standards of different examiners was
under challenge. Here is what the Hon’ble Apex Court has observed:-
“25. It is important to note that under Article 320 of the Constitution, the Union and a State Public Service Commission has been conferred with ample power to conduct examinations for appointment to the services of the Union and to the services of the State. Of course, the power conferred on the Public Service Commission shall not be used arbitrarily. Similarly, powers of superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State have been vested with the Election Commission. While considering the parameters of the powers of the Election
482
Commission, this Court in Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, 1978 (2) SCR 272 observed as under:-
“Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Art. 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor malafide, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation ........................................ Article 324 in our view, operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’ as well as ‘conduct of all elections’ are the broadest terms Myriad may be too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election.”
26. The above observation made in the context of Article 324 would equally apply to article 320 when it comes to the question of powers of the Public Service Commission. The question, therefore, to be considered is whether the U.P.P.S.C. has exercised its powers arbitrarily and whether adoption of scaling system was with ulterior motives to give undue preference to some candidates.”
22. In any case, some 16,000 candidates had appeared at the limited competitive
examination. For seeking the relief of cancellation of the examination on the ground of
the same having been vitiated it ought to be demonstrated that there was a
failure/collapse of the system. A couple of isolated alleged instances of examination mal
practices, even if they be true, cannot lead to an inference that there was systems failure.
Few isolated instances, should there be such instances call for being dealt with in a
different manner individually. Cancellation of the examination cannot be and is not an
answer to it. In our view there is not even an iota of material to indicate that there was
systems failure. On the contrary, the material on record which we have referred to in
paragraph 16 above do indicate and demonstrate amply that the examination was
conducted in a fair, proper and transparent manner in which any examination ought to be
conducted. Secondly if the relief sought were granted it would adversely affect a large
number of candidates and none likely to be so affected has been impleaded as a party
respondent. This is another aspect of the matter. In our view, considered from any
483
angle, there is absolutely no warrant for granting the reliefs claimed in these original
applications. No case for interference by the tribunal has been made out.
23. In the aforestated circumstances both the original applications call for being
dismissed. They accordingly hereby stand dismissed with no order as to costs.
***
484
IN THE MAHARASHTRA ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH ORIGINAL APPLICATION NO.661 OF 2004 & CONNECTED CASES
D.D. 25.7.2005
SHRI P.K.GAIKWAD (MEMBER) (J) SHRI G.C. TRIPATHY (MEMBER) (A)
Shri Shashkant Shankar Tatkare & Ors. ... Applicants Vs. The State of Maharashtra & Anr. ... Respondents
Recruitment - Standard fixed for Selection:
The applicants were candidates for recruitment to the post of P.S.I. – Limited departmental examination for promotion to the post of P.S.I. was held for 179 posts in 1998 – As the applicants secured less than the minimum qualifying marks in the written test they were not allowed to appear for the further stages of examination like physical test, interview etc. – There was a Court direction to send a list of 406 candidates in addition to 179 candidates recommended earlier – The applicants contended that in view of the additional vacancies the qualifying standard ought to have been lowered and the applicants ought to have called for physical test – As the applicants were not among 726 candidates who were already found fit and eligible in the written test and physical test the Tribunal dismissed the applications.
JUDGMENT
1. Heard both sides. Perused the Original Applications and affidavits filed in reply.
The facts and circumstances as well as the issues in all these three Original Applications
being identical, they are taken up for disposal under this common order.
2. The applicants have challenged the action of Maharashtra Public Service
Commission in respect of not calling the applicants for physical test in the Police Sub-
Inspector’s Departmental Examination 1998, on account of they having secured less than
the qualifying marks fixed for the category to which they belong. All these applicants
were eligible to appear for the Limited Departmental Examination for promotion to the
post of Sub Inspector of Police, having worked for the required period in the Police Force
as Constables. Initially, 241 posts were advertised. Later on by Corrigendum the number
of posts was reduced to 179. The said examination for the 1998 recruitment year was
held on 22.9.1999. The applicants had appeared in the written test. However, the
applicants were informed on 9.7.1999 that the marks secured by them in the written test
485
were less than the minimum qualifying marks and hence they were not qualified. Thus,
the applicants were not allowed to appear in the further stages of the examination like
physical test, interview etc.
3. In the meanwhile, a group of unsuccessful candidates had approached the
Tribunal by filing as many as 129 Original Applications. The main contention raised by
the applicants was that the ratio of the different modes of recruitment to the posts of
P.S.I. was not maintained properly as prescribed in the Recruitment Rules. Since the
Limited Departmental Examination was not held every year there remained backlog of
the posts to be filled on through the said examination. The State Government filed an
affidavit that there were in all 463 vacancies to be filled in through the Limited
Departmental Examination and the Government had taken a decision to fill up the said
vacancies through the examination of the year 1998-99. Therefore, this Tribunal by
Order dated 19.7.2000 directed the respondents to take necessary action within specific
time. The MPSC however recommended only 48 names in addition to 179 names
already recommended. The M.P.S.C. had taken the stand that it was not feasible for the
Commission to recommend more names without lowering the qualifying standard and
considering the question of administrative efficiency, it was also not advisable to lower
the qualifying standard.
4. The aggrieved candidates approached the Tribunal again by filing a group of
Original Applications with the first O.A. being O.A. No.630/1999. The Tribunal by
Order dated 22.6.2001 directed the State Government to send requisition for additional
150 vacancies to be filled in respect of the examination of 1998-99. The Tribunal also
directed the Commission to prepare the select list accordingly. The M.P.S.C. filed
appeal in the High Court vide W.P.No.15153/2002, challenging the order passed by the
Tribunal. By deciding the entire group matters the High Court directed by Commission
to send a list of 406 candidates in addition to the 179 candidates recommended earlier.
The Commission carried the matter to Supreme Court by filing SLP No.10068/2002 and
also by a Review Petition but both SLP and Review Petition came to be dismissed. The
Review Petition came to be dismissed by order dated 3.12.2003.
486
5. The applicants in the present O.A.s maintain that the qualifying standard in the
written test was fixed by the Commission on the basis of the number of vacancies
advertised i.e. 179. The Commission had called candidates, four times of the number of
vacancies, for Physical test and Interview and the minimum qualifying marks for each
category got fixed accordingly. The applicants maintain that now that under the direction
of the Court, the Commission is required to recommend 406 names out of the said
examination, the Commission must lower down the qualifying standard and call
additional number of candidates like the applicants for physical examination and
interview in order to make fair and just selection by following the formula of conducting
physical test of candidates, four times of the required number of posts.
6. The applicants have filed Miscellaneous Applications praying for condoning
delay. The main ground advanced is that the dispute pertaining to the Examination 1998-
99 got finally settled by order of Supreme Court passed on 3.12.2003. Hence, the
applicants maintain that they could have filed the present O.A.s, when the dispute was
still under adjudication in different Courts. The learned Advocate for the applicants has
cited number of judgments in support of the stand regarding limitation. Considering the
grounds mentioned in these M.A.s, we are inclined to condone the delay. Hence, all
these M.A.s are allowed.
7. So far as the merits of the case is concerned, we find that the points regarding
qualifying standard and other issues are fully covered in the judgments of this Tribunal
and particularly in the judgment of High Court passed in W.P.No.4625/2001 and
W.P.No.4626/2001. It is a fact that the matter is finally decided and the Commission is
required to send a list of 406 names to Government out of the candidates who were called
for Physical test and Interview in the said examination. But the applicants under these
O.A.s plead that they were not called for physical test, because of securing lower marks
than the qualifying marks. The qualifying marks for different categories were fixed on
the basis of 179 vacancies. The applicants contend that for additional vacancies, the
qualifying standard ought to be lowered by the Commission and accordingly the
487
applicants ought to be called for physical test. But we find that the Commission has
vehemently pointed out the adverse effect of the lowering of standard on administrative
efficiency in the earlier litigation referred to above and the same has been considered by
this Tribunal and High Court while in their judgments in the relevant petitions. While
directing M.P.S.C. to send 406 additional names, the High Court in their judgment has
made the following observation:-
“Para-10. We also find no substance in the contention that standard of passing and eligibility would be lowered if more number of candidates were forwarded to the State. In our opinion, this contention is baseless. The M.P.S.C. has in is wisdom fixed certain criteria for passing the examination and it has also fixed certain criteria for passing the physical test and after examining the candidates according to those standard and criteria, has found 726 candidates as eligible. Then sending of any number of candidates from those 726 candidates would not result in lowering the standard, because standard was already determined and those 726 candidates were already been found fit and eligible.”
8. Thus, we find that the direction of the High Court is to send 406 names from the
list of 726 candidates who were already found fit and eligible in the written test and
physical test. We find that the applicants could not qualify in the written test and hence
they were not called for physical test. Admittedly, their names do not figure in the list of
726 candidates who were found eligible on the basis of the qualifying examination and
physical test.
9. The basic argument of the applicants is that in all, 585 (179 + 406) vacancies were
required to be filled up. The State Government did not send requisition for all those
vacancies. As a result only 179 vacancies got advertised and the MPSC called a little
more than four times of 179 i.e. 726 candidates for physical test. The applicants argue
that had all the vacancies would have been advertised, 2340 (four times of 485 vacancies)
candidates would have been called for physical test. In that case the qualifying standard
would have been determined at a lower stage and the applicants would have been called
for physical test and interview. The applicants plead that since, all the vacancies were
not notified, the applicants were denied the right to compete in he further stages of the
Examination.
488
10. We find that, although it is a fact that due to lack of information or
misinformation, only 179 vacancies got advertised, the State Government later on
decided to obtain names of additional 463 candidates to fill up the available vacancies. It
is true that the Commission had pointed out operational difficulty in selecting additional
candidates, since, the process of selection required calling candidates, four times of the
number of vacancies, for physical test and interview. By that time the physical test and
interview was already over and a list of 179 selected candidates was already sent to the
State Government. Calling additional candidates for physical test and interview required
lowering down the qualifying standard, which was going on upset the selection already
made. This stand was taken by M.P.S.C. in the W.P. filed by them. Considering the
operational difficulty pointed out by M.P.S.C., the High Court, under their order referred
to above have restricted their direction to select additional 406 candidates only from the
list of candidates who were found eligible in the written examination as well as in the
physical test. The applicants, admittedly, do not fall in that category. Hence, their claim
for being called for physical test, at this late stage, is baseless and deserves to be rejected.
***
489
IN THE HIGH COURT JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
WRIT PETITION NO.37582005 D.D. 9.8.2005
HON’BLE MR. F.I.REBELLO AND N.A.BRITTO, JJ
Ms Shubhangi ... Petitioner Vs. Maharashtra Public Service Commission & Ors. ... Respondents
Recruitment - Educational Qualification:
The application of the petitioner for the post of Lecturer was rejected on the ground that the petitioner did not have Master’s Degree in second class in the relevant subject as on the last date fixed for receipt of applications i.e. 4.5.2005 – As the applicant had only post graduate qualification in education and as she obtained post graduate degree in the relevant subject in July 2005 after the last date fixed for receipt of applications the High Court rejected the writ petition holding that the petitioner was not eligible to apply. Held: There is no challenge to the requirement of qualifications as set out in the advertisement and as such the petitioner who obtained post graduate degree in the relevant subject after the last date fixed for receipt of applications was not eligible to apply.
ORDER When the advertisement was issued qualifications required were:
i) possess good academic record with Master’s degree of a statutory university in Second Class in the relevant subject from an Indian university or an equivalent degree from a foreign University.
ii) Possess Master’s degree in Education of a statutory university
with minimum 55 percent marks or its equivalent grade, and
iii) Have qualified in the comprehensive “Eligibility Test” or equivalent test prescribed by the University Grants Commission.
Last date for submitting application was 4th May, 2005. Admittedly as on 4th
May, 2005 the petitioner did not have Master’s degree in second class in the relevant
subject. The subject involved here are Marathi and Science. The petitioner holds post
490
graduate qualification by way of Master’s degree in Education. The petitioner’s
application was rejected and this was so communicated to him.
The selection has taken place, the petitioner after his non-selection has filed
present petition on 19.7.2005. It is contended on behalf of the petitioner that in terms of
U.G.C. only requirement for the Lecturer is that the person must possess a post graduate
degree in Art, Science, Social Science, Commerce, education, Foreign Languages and
Law. It is therefore, set out that the petitioner having possessed Master’s degree in
Education, he met with all the requirements. It is therefore, submitted that non
consideration of the petitioner is arbitrary. It is also sought to be pointed out, based on
paragraph 7 of the petition, about discriminatory practice as other candidates are still in
service and doing jobs at various institutions possessing similar qualification as that of
the petitioner for the post of lecturer. No details have been set out nor are they party
respondents before us to enable us to consider that contention.
Once the petitioner has applied under the advertisement which required the
petitioner to possess good academic record with Master’s degree in second class in the
relevant subject and as the petitioner, on the last date of submission of application did not
have the said qualification, we find no reason to interfere with rejection of petitioner’s
application as it is not the petitioner’s case that in terms of the qualification required for
the post, possessing post graduate in the subject as set out in the advertisement is not
required. There is also no challenge to the requirement of qualifications as set out in the
advertisement. The petitioner obtained the post graduate degree in July, 2005. The
advertisement did not set out that those who have appeared for the examination will also
be eligible to apply.
Considering the above, we find no cause for interference. The petition is rejected.
***
491
IN THE MAHARASHTRA ADMINISTRATIVE TRIBUNAL, NAGPUR BENCH, NAGPUR
ORIGINAL APPLICATION NOS.242 & 283/2004 D.D. 12.8.2005
THE HON’BLE SHRI S.D.JOSHI, VICE-CHAIRMAN (A)
Shri Dnyaneshwar Manohar Pant Nalat & Ors. ... Applicants Vs. The State of Maharashtra & Ors. ... Respondents Examination - Mistake in the Question Paper:
On same set of facts covered by order dated 9.6.2004 in Original Application No.408/2003 and connected case this batch of cases has been filed alleging mistake in Paper-II Law - The Tribunal both on merit as well as on the ground of delay and laches dismissed these applications. Held: The examination was held on 29.7.2003. The results were declared on 6.3.2004. The allegations regarding irregularity in conduct of examination in respect of Paper-II of Law were inquired into by the P.S.C. and had issued a Press Note that no irregularities had taken place in the examination. The applicants had not made any representation for cancellation of the examination and the applicants approached the Tribunal by filing these applications in May/June 2004 long after the results were declared. The applicants had not approached the Tribunal within a reasonable time and the applications suffered from serious laches on the part of the applicants hence not entitled to any relief. [The text of the judgment is not printed here as the order dated 9.6.2004 in A.No.408/2003 is included in this Compilation.] Cases referred:
1. (1998) 3 SCC 694 - Union of India & Anr. Vs. N.Chandrasekhar & Ors. 2. (2002) 5 SCC 533 - B.Ramanjini Vs. State of Andhra Pradesh 3. AIR 2002 SC 790 – G.V.Naik Vs. Goa University 4. AIR 2004 SC 163 – Union Public Service Commission Vs. Suhashchandra Dixit
***
492
MIZORAM PUBLIC SERVICE
COMMISSION
493
IN THE GAUHATI HIGH COURT AIZAWL BRANCH: AIZAWL
WRIT PETITION (C) NO.25 OF 1998 D.D. 2-2-2001
THE HON’BLE MR. JUSTICE B.B.DEB
Sh.K.Thanvela & Ors. ... Petitioners Vs. State of Mizoram & Others ... Respondents Selection by Promotion: Promotion to the post of Inspector (AB) - Armed Branch (AB) from persons holding the post of Sub Inspector (AB) – The petitioners who were seniors to Respondents 6 to 11 in the seniority list of Sub Inspector (AB) were recommended first for promotion by M.P.S.C. and as such, they were promoted first and the petitioners were promoted subsequently and as a result in the seniority list of Inspector (AB) published on 1.5.1997 the petitioners were placed below respondents 6 to 11 – Petitioners contended that the recommendations made by M.P.S.C. were in violation of Assam Police Manual Volume-I – The State and Mizoram P.S.C. contended that Regulation 39 stood amended by subsequent Office Memorandum dated 24.8.1994 as per which the recommendations for promotion were made by Mizoram P.S.C. – The High Court upheld the contention of the State Government and Mizoram P.S.C. that after the State=hood Office Memorandum dated 24.8.1994 would prevail over Regulation 39 of Assam Police Manual and dismissed the writ petition – The High Court also held that the writ petition suffered from delay and laches besides estoppel.
J U D G E M E N T
By this writ petition under article 226 of the Constitution of India, the petitioners
(seven in number) challenged the order of promotion of private respondent Nos.6 to 11 to
the posts of Inspector, Armed Branch (AB) dated 24.10.1995 and also challenge the
impugned seniority list of the petitioners vis-à-vis the private respondents dated 1.5.1997.
2. The fact of the petitioners’ case, in gist, is as follows:-
The petitioners and the private respondent nos.6 to 11 had been holding the posts
of Sub-Inspector, Armed Branch (AB) prior to their promotion to the posts of Inspector
(AB), but in the said feeder posts of Sub-Inspector (AB) the petitioners were seniors to
the private respondents. In the seniority list published on 16.7.1990 (Annexure-p-1) of
the Sub-Inspectors (AB), the petitioners’ position had been shown at serial Nos.17, 20,
494
24, 27, 28, 29 and 32 while the seniority position of the private respondent had been
shown at Sl.Nos.19, 36, 42, 44, 48 & 59 and according to the petitioner only the private
respondent No.6 is senior to the petitioner nos. 2 to 7, but that private respondent No.6 is
also junior to petitioner No.1.
For the purpose of promotion to the posts of Inspector (AB), all the petitioners as
well as the private respondents holding the post of Sub-Inspector (AB) were in the feeder
posts and the promotions were to be made on the basis of Regulation No.39 of the Assam
Police Manual Vol. I, but having violated the aforesaid provision of Assam Police
Manual, the private respondent Nos. 6 to 11 had been promoted Superseding the
petitioners vide order dated 24.10.95 to the posts of Inspector (AB) on the basis of the
recommendation made by the Mizoram Public Service Commission (herein after referred
to as “MPSC”) communicated vide letter No.60/A/95-MPSC/20 dated 31.8.1995, while
the petitioner had also been promoted to the posts of Inspector (AB) subsequently vide
order dated 3.11.1995 pursuant to the recommendation made by the MPSC vide letter
No.60/A/95-MPSC/24 dated 31.10.1995 and since the petitioners had been promoted
subsequent to the promotion of their juniors (private respondent Nos. 6 to 11), in the
seniority list published for the posts of Inspectors (AB), the petitioners were shown
juniors to the private respondents.
3. The State Government and the MPSC submitted respective counter separately.
The stand taken by the respondent Government in their counter is that the Regulation 39
of the Assam Police Manual stood amended by subsequent Office Memo issued by the
Government bearing No.a.32012/1/81-APT (B) dated 24.8.1994. By this office
Memorandum, the Government decided to obtain the recommendation of the MPSC so
far selection of candidature for the purpose of appointment or promotion to any post
under Group A or B category under the Government of Mizoram and by this office
Memorandum, the Government of Mizoram directed all the authorities concerned to place
the relevant papers to the MPSC for its consultation so far filling up the posts under
Group A and B are concerned instead of selection procedure followed earlier. The further
contention of the State Government is that the names and related papers of all the
495
petitioners, private respondents and other eligible Sub-Inspectors (AB) had been placed
before the MPSC and on assessment the MPSC made their recommendations. Since in
the first phase the private respondents had been recommended by the MPSC, they had
been promoted to the post of Inspector (AB), but on subsequent phase the names of the
petitioners and others had been recommended by the MPSC and they had been promoted
accordingly, of course subsequent to the promotion of the private respondents and as such
in doing so neither the MPSC nor the State Government committed any wrong nor
violated any provision of law.
4. The MPSC also had taken the same plea. Referring the Office Memorandum
No.A/32012/1/81-APT (B) dated 24.8.1994, the MPSC also averred in their counter
affidavit that in view of the aforesaid Office Memorandum, all cases for
appointment/promotion to Group A & B categories post require to be placed before the
MPSC for its recommendation, consequent upon the establishment of MPSC instead of
previously constituted departmental Selection Committee.
5. Mr. G. Raju, learned counsel for the petitioners having referred to Rule 39 of the
Assam Police Manual (as extended to the State of Mizoram) submits that only the
Inspector General of Police is to make promotions to the posts of Inspector (AB) from the
list to be prepared by the State Selection Committee constituted by the Inspector General
of Police. The extract of Rule 39 of the Assam Police Manual has been annexed as
Annexure-P-4 with the writ petition, which runs as follows: -
“Promotion to the rank of Inspectors will be made by the Inspector General of Police from the list to be prepared by a State selection board constituted by the Inspector General of Police from time to time for the purpose.”
Having relied upon the aforesaid provision, the learned counsel for the petitioners
submits that in the present case having violated the aforesaid provision, the Inspector
General of Police referred the cases of eligible candidates to the MPSC instead of
constituting a Selection Committee as required under the aforesaid rule 39 of the Assam
Police Manual and as such the promotions given consequent upon the recommendation of
496
the MPSC are bad in law and the promotions/appointments so made on the basis of the
recommendations of the MPSC warrant to be quashed.
6. The learned counsel for the State respondents having relied upon the subsequent
Office Memorandum issued by the Government of Mizoram dated 24.8.1994 (Annexure-
I of the counter-affidavit) contends that earlier to the aforesaid Memorandum, the
procedure embodied under Rule 39 of the Assam Police Manual was followed, but since
the Mizoram attained the statehood, constituted its own Public Service Commission. The
Government by the aforesaid Memorandum issued directives for placing all cases before
the MPSC for its recommendation for the purpose of appointment/promotion to Group A
& B posts instead of referring the matters to the departmental Selection Board. and as
such in placing the cases of the eligible Sub-Inspectors (AB) to the MPSC for its
recommendation, the State/Inspector General of Police committed no illegality. In short,
the learned counsel for the State respondents submits that Rule 39 of the Assam Police
Manual became absolute so far the appointment/promotion to the posts under Group A &
B are concerned and so far the appointment/promotion to Group C & D posts are
concerned, the departmental Selection Board/Committee would function as before.
7. The learned counsel for the petitioners submits that Rule 39 of the Assam
Police Manual is a statutory rule while the Office Memorandum dated 24.8.1994 is mere
an executive/administrative instruction.
8. From a perusal of Assam Police Manual, it appears that the said Manual has
never been passed by way of legislation, but it is also a subordinate legislation made by
the authority in exercise of Executive power and the same is akin to the office
Memorandum dated 24.8.1994. From the language used and the intention ascertained
from the aforesaid Office Memorandum dated 24.8.1994, it appears to me that the said
Office Memorandum had also been issued in exercise of Executive power under Article
162 of the Constitution of India. This being the position, both the provisions of Rule 39
of Assam Police Manual and the Office Memorandum dated 24.8.1994 are the outcome
of Executive instruction and as such the subsequent Executive instruction dated
497
24.8.1994 would prevail over the earlier one so far the appointment/promotion to Group
A & B posts are concerned. This being the position, I find no fault with the authority
concerned in placing the cases of eligible candidates before the MPSC for its
recommendation.
9. From the available record, it appears that the cases of the petitioners along with
private respondents and others had been placed by the authority before the MPSC for its
recommendation and the MPSC in the first phase recommended the names of the private
respondents and others for promotion to the post of Inspector (AB) and at a subsequent
phase the MPSC recommended the cases of the petitioners and others and acting upon
such recommendation, the authority issued the impugned promotion order.
10. The learned counsel for the petitioners submits that though there are numerous
vacancies, but the Director General of Police requested the MPSC for processing matter
of recommendation for filling up as many as seven vacant posts of Inspector (AB) vide
correspondence No. E/PHQ/IRP/pt/221-A dated 9.8.1995 and in that communication the
Director General of Police reduced the qualifying service required from ten years to five
years on the ground that no Sub-Inspector (AB) had completed ten years of service in the
Grade and since urgency required the relaxation was made.
11. The learned Govt. Advocate submits that consequent upon the relaxation so
made in their length of qualifying service, the petitioners as well as the private
respondents would have been eligible for consideration otherwise neither the petitioners
nor the private respondents would have been eligible even for consideration for lack of
qualifying service period and as such after availing the benefit of the aforesaid Office
Memorandum they ceased of any right to challenge the same. The learned Govt.
Advocate also submits that under Rule 39 of the Assam Police Manual, the Inspector
General of Police was given the power to make appointment/promotion to the posts of
Inspector (AB), but in the instant case having referred to the promotion order of the
private respondents dated 24.10.1995 (Annexure-p-5 to the writ petition) as well as the
promotion order of the petitioners dated 3.11.1995 (Annexure-p-6 to the writ petition)
498
the learned Govt. Advocate submits that both the aforesaid promotion orders promoting
the private respondents as well as the petitioners had been done by the Director General
of Police and not by the Inspector General of Police.
12. It is correct that after the Statehood, the Government of Mizoram created a post of
Director General of Police being the Chief of Police organization putting the Inspector
General of Police under him and thus from the aforesaid situation also it could be easily
presumed that Rule 39 of the Assam Police Manual became absolute so far it relates to
appointment/promotion to the posts under Group A & B are concerned. This being the
position, I am of the considered opinion that Office Memorandum dated 24.8.1994 would
prevail over Rule 39 of the Assam Police Manual so far appointment/promotion to posts
under Group ‘A’ and Group ‘B’ posts are concerned.
13. The learned counsel for the petitioners submits that at the first instance the
authority only informed the MPSC that seven posts of Inspector (AB) were lying vacant
and for that purpose the recommendation of the MPSC was sought for vide letter dated
9.8.1995, but subsequently vide letter dated 27.10.1995, the authority informed the
MPSC that more eight vacancies in the Grade of Inspectors (AB) were lying and sought
for further recommendation. The learned counsel for the petitioners submits that had the
authority asked the MPSC for recommendation for filling up as many as 15 posts of
Inspector (AB), the fate of the petitioners would be otherwise. But it is on record that
while the authority sought for recommendation of the MPSC for filling up of seven
vacant posts of Inspector (AB), the names of the petitioners as well as the names of the
private respondents had been placed/referred and as such all the eligible sub-Inspectors
(AB) including the petitioners got due consideration by the MPSC and as such requisition
by two phases, firstly for seven posts and secondly for eight posts placed by the authority
before the MPSC would not alter the situation in any way.
14. The learned Govt. Advocate submits that pursuant to the recommendation dated
31.8.1995 made by the MPSC, the private respondents had been promoted to the posts of
Inspector (AB) on 24.10.1995 and in the like manner consequent upon the
499
recommendation made by the MPSC on 31.10.1995, the petitioners had been promoted to
the post of Inspector (AB) vide order dated 3.11.1995 and the petitioners accepted the
said promotion and joined in the respective places of posting in the Grade of Inspector
(AB) and thus the present writ petition having been filed on 10.6.1998 suffers from delay
and laches beside the petitioners are estopped from challenging the same.
15. The learned counsel for the petitioners submits that unless final seniority list for
the posts of Inspector (AB) was published, the petitioner right had not been infringed of
and since the final seniority list of Inspectors (AB) was published on 1.5.1997 vide
Annexure-p-10 to the writ petition, the cause of action arose for the petitioners to seek
appropriate remedy before the Court of law.
16. I cannot share with the submission made by the learned counsel for the petitioners
because the petitioners knew that they had been promoted by a separate promotion order
after ten days of the promotion of the private respondents. On the date when the private
respondents had been promoted to the post of Inspector (AB), the petitioners held the
posts of Sub-Inspector (AB) and thus the cause of action to vindicate the grievance arose
on 3.11.95 when the petitioners found that they had been promoted subsequent to the
promotion of the private respondents and as such the explanation made by the petitioners
justifying the delay and laches caused in filing the writ petition appears to be not sound
and convincing.
17. Having regard to the aforesaid factual and legal position, I am of the firm opinion
that the promotions of the private respondents to the posts of Inspector (AB) and
subsequent publication of impugned seniority list dated 1.5.1997 suffer from no illegality
and irregularity nor violated any provision of law and as such this writ petition fails and
accordingly stands dismissed with no order as to costs.
***
500
IN THE GAUHATI HIGH COURT AIZAWL BRANCH: AIZAWL
WRIT PETITION (C) NO.39 OF 1997 D.D.24.5.2001
THE HON’BLE MR. JUSTICE B.B.DEB
Sh.C.Laltlankima ... Petitioner Vs. State of Mizoram & Others ... Respondents
Selection by Promotion: Mizoram Education & Human Resources Department (Group ‘B’ Gazetted Posts) Recruitment Rules, 1995 – The post of District Research Officer, Research Officer (Anthropology), Special Officer (District Gazetter) to be filled by promotion from persons holding the posts of Research Investigator and Technical Assistant with not less than 5 years regular service – Codifier with not less than 8 years regular service, Translator with not less than 10 years regular service – Petitioner holding the post of Codifier and the respondent No.4 holding the post of Research Investigator were considered for promotion by Mizoram Public Service Commission (M.P.S.C.). As per the recommendation of M.P.S.C. 4th respondent was promoted to the post of Research Officer – The petitioner contended that he being senior to 4th respondent by one year in the same pay scale he should have been given preference. – The High Court upholding the contention of M.P.S.C. that among the persons in the different feeder posts/grades, those in the higher pay scale would rank senior to those in the lower scale of pay and as the 4th respondent was placed in a higher pay scale in comparison to the petitioner his name was recommended for promotion and dismissed the petition.
J U D G E M E N T
This writ petition pertains to the impugned Notification dated 1.5.1997 by which
the authority promoted the private respondent No.4 to the post of Research Officer in the
scale of pay of Rs.2375-75-3500/- superseding the seniority of the petitioner and also
pertains relief sought for by the petitioner directing the Govt. respondents to promote the
petitioner to the higher post of Research Officer or equivalent post w.e.f. 1.5.1997.
2. The petitioner’s case, in short, is that the petitioner on being recommended by the
D.P.C. was appointed to the post of Codifier in the Institute of Music & Fine Arts,
Mizoram in the pay scale of Rs.425-700/- vide appointment letter No.A.19014/29/83-
501
DTE (EDN)20-A dated 28.10.1983 while the private respondent No.4 was also appointed
as recommended by the D.P.C. to the post of Research Investigator in the office of the
Senior Research Officer, Tribal Research Institute in the same scale of pay vide
appointment letter NO.A.19014/9/80-DTE(EDN)/30-A dated 25.2.1984. Both the
petitioner as well as the private respondent No.4 had been appointed under the
Directorate of Education, Govt. of Mizoram having the identical pay scale. According to
the Recruitment Rules of 1988, which is called ‘the Mizoram Education & Human
Resources Department RRS, 1988’, the post of Research Officer (Anthropology) was to
be filled up by 100% promotion from the feeder post viz. From the incumbents holding
the posts of Research Investigator/Translator/Codifier with not less than 8 years service
in the Grade. The post of District Research Officer, Tribal Research Institute was also to
be filled up on promotion from the incumbents holding the post of Reserach
Investigators/Treasurer/Codifier with not less than 8 years service in the Grade. The said
Recruitment Rules had been amended in 1995 under the name and style of “the Mizoram
Education & Human Resources Department (Group ‘B’ Gazetted posts) Recruitment
Rules, 1995 and under the amended Rule the posts of district Research Officer, Research
Officer (Anthropology), Special officer (District Gazette) are to be filled up by promotion
from incumbents holding the post of Research Investigator and Technical Assistant with
not less than 5 years regular service in the Grade, Codifier with not less than 8 years
regular service in the Grade, Translator with not less than 10 years regular service in the
Grade.
The petitioner’s further case is that since the petitioner had been holding the post
of Codifier and the private respondent No.4 the post of Research Investigator having
identical pay scale, the only criteria to get consideration for promotion to the higher post
would be the qualifying service. In case of Codifier it is prescribed not less than 8 years,
in case of Research Investigator it is prescribed not less than 5 years and as such the
D.P.C. ought to have considered the case of the petitioner allowing the preferential
treatment since the petitioner was senior to the private respondent No. 4 by one year in
the same pay scale and under the same Department. Since, both the posts of Research
Investigator and Codifier are included in the feeder posts for the purpose of promotion to
502
the higher posts, the incumbent holding the feeder post more in length deserves to be
allowed preferential treatment and as such, according to the petitioner, the appointment of
the private respondent No.4 to the post of Research Officer is illegal, violative of the law
of equality and liable to be quashed, instead the authority be directed to promote the
petitioner to the post of Research Officer or equivalent post.
3. The Govt. respondent having filed the counter resisted the claim of the petitioner
on the ground, inter-alia, that the Mizoram Public Service Commission (in short MPSC)
did not recommend the name of the petitioner for the post of Research Officer and as such
the appointing authority was not in a position to consider the case of the petitioner for the
purpose of promotion.
4. The MPSC also furnished a counter contending, inter alia, that it is the settled
proposition of law supported by judicial pronouncement that amount the persons in the
different feeder posts/Grades, those in the higher pay scale would rank senior to those in
the lower scale of pay and as such the MPSC recommended the name of the private
respondent No.4 along with others who had been placed in a higher pay scale in
comparison to the petitioner though the post held by the petitioner was also included in
the feeder posts.
5. Heard the learned counsel for the parties.
6. From the minutes of assessment recorded by the MPSC, it appears that there were
as many as four candidates scored the over all assessment as “very good”. They include
the petitioner and the respondent No.4 also as available from annexure – 2 of the counter
affidavit filed by the MPSC. From the counter-affidavit filed by the MPSC, it appears
that the pay scale of Codifier and Research Investigator had been amended and at the
relevant time the pay scale of Codifier was 1600-2660 while the pay scale of Research
Investigator was Rs.1640-2900/- and thus it is apparent that the pay scale of research
Investigator is a bit higher than the pay scale of Codifier.
503
7. Mr.Lalsawta, learned counsel representing the MPSC referred Swamy’s
Compilation “on seniority and promotion” and having referred the guideline prescribed
by the Govt. of India, Department of Personnel and Training vide O.M.No.20011/1/88-
Est (D) dated 12th December, 1998 submits that while different posts with different pay
scales are included in the feeder posts for the purpose of promotion to a higher post the
incumbent holding the higher pay scale among the feeder post holders should be treated
senior to those holding the lower pay scale in the feeder post. For better appreciation, the
aforesaid Office Memorandum dated 12.12.1988 is re-produced below: -
“The matter has been re-examined in the light of recent judicial pronouncement and it has been decided that the above instructions may continue to be followed subject to the modification that among the persons in the feeder grades given the same grading, those in the higher scales o pay will rank senior to those in the lower scale of pay,”
8. Sitting in writ jurisdiction, the court is concerned to examine the selection making
process and not the selection itself. In this case, the petitioner’s case was taken up for
consideration. The post of Codifier, the petitioner held and the post of Research
Investigator, the private respondent No.4 held both are included in the feeder posts for the
purpose of promotion to the higher post of research Officer and the allied and the bench
mark was awarded to the petitioner as well as the respondent no.4 as “very good”. The
petitioner made no complaint regarding marking of benchmark. Recording entries in the
ACR of the petitioner vice verse the respondent no.4 has not been put under challenge.
The only claim of the petitioner is that he was appointed one year before the respondent
no.4 in the feeder post and as such his seniority should have been counted and should
have been awarded additional marks. On the other hand, from the counter filed by the
MPSC having referred to the Govt. of India’s instruction dated 12.12.1988, it reveals that
while more than one posts are included in the feeder posts for the purpose of promotion,
the incumbent holding the feeder post having higher pay scale should be treated as senior
to those who holding the feeder post having lower pay scale and in doing so, in my
considered opinion, the MPSC committed no illegality or irregularity.
504
9. It appears from Annexure-III, the Gazette Notification dated 3.4.1990 that the
scale of pay of Research Investigator (held by the private respondent No.4) was revised
to Rs.1640-2900/- while the pay scale of Codifier (held by the petitioner) was to Rs.1600-
2660/-.
10. Mr. Lalramzauva, learned counsel for the petitioner submits that being aggrieved
by the pay anomaly created due to pay revision, the petitioner moved the authority and
the matter is pending. Be that as it may, until the parity is done giving the petitioner
equal pay scale benefit equivalent to the private respondent No.4, the petitioner cannot
claim preferential treatment over the respondent No.4 for the purpose of promotion.
11. Having regard to the aforesaid legal position as discussed, I find the MPSC,
respondent No.3 committed no illegality or irregularity in not recommending the name of
the petitioner for the purpose of promotion to the higher post of Research Officer and as
such impugned order dated 1.5.1997 by which the private respondent No.4 was promoted
to the post of Research Officer (Anthropology) cannot be held to be bad or illegal.
12. In that view of the matter, in my considered opinion, the writ petition being devoid
of merit is liable to be dismissed and is hereby dismissed with no order as to costs.
***
505
IN THE GAUHATI HIGH COURT AIZAWL BENCH : AIZAWL
WRIT PETITION (C) NO.125 OF 2000 D.D. 27.7.2001
THE HON’BLE MR. JUSTICE B.LAMARE
Shri L.R.Colney ... Petitioner Vs. The State of Mizoram & Ors. ... Respondents
Assessment of A.C.Rs for Selection by Promotion: Promotion to the post of Auditor from the post of Assistant Auditor – The case of the petitioner and other eligible candidates was sent to Mizoram P.S.C. for consideration – Mizoram P.S.C. after making assessment of A.C.Rs recommended the name of 5th respondent was appointed as Auditor – The petitioner was assessed as ‘Average’ by Mizoram P.S.C. although he was graded as ‘Good’ for first 4 years and only in the last year he was graded as ‘Average’ –In view of para 3.3 of O.M. dated 3.9.1998 which states that average may not be taken as adverse remark – Objection of the petitioner that the grading of the petitioner as average has adverse effect but the said grading was not communicated to him after distinguishing the decision in 1996 (2) SCC 363 (U.P. Jal Nigam & Ors. v. Prava Chandra Jain & Ors), was rejected – Consequently, the writ petition was dismissed.
JUDGMENT
1. Heard Mr. C.Lalramzauva, learned counsel for the petitioner, Mr. N.Sailo, learned
Govt. Advocate for respondent Nos. 1,2, & 3 and Mr. Lalsawta for respondent No. 4.
2. The case in brief is that the petitioner is working as Assistant Auditor in the
Office of Directorate of Accounts and Treasuries, Govt. of Mizoram. According to the
final inter-se-seniority list published Vide Notification dated 29.6.2000, the petitioner ‘s
name shown at Sl. No. 1 and Respondent No.5 is shown at Sl. No. 2, of the said seniority
list. The post in which the petitioner and respondent No.5 are holding is Group ‘B’ Post
are Non-Gazette post. However, the post was up-graded to the Gazette status in a group
‘B’ post by Notification dated 16.8.1999.
506
3. The post of an Auditor fell vacant due to the deputation of one incumbent in the
cadre. The petitioner, who is at Sl.No. 1 of the Seniority list claims for promotion to the
said post of Auditor. Since the post of Auditor is a Gazette post selection has to be made
through the Mizoram Public Service Commission (MPSC). Accordingly, the case of the
petitioner along with other eligible candidates was send to the Mizoram Public Service
Commission for consideration. The MPSC after making assessment of the ACRs of
Assistant Auditor in the zone of consideration has recommended the name of Respondent
No.5 for appointment to the post of Auditor. On the basis of the said recommendation
dated 25th May 2000 (Annexure-IX to the Writ Petition). The Joint Secretary to the Govt.
of Mizoram, Finance Department (E) Vide Notification dated 7.6.2000 appointed
respondent No.5 as Auditor in officiating capacity. It is the said mentioned
recommendation dated 25th May 2000 and Notification dated 7.6.2000 (Annexure- IX &
X to the Writ Petition), which are assailed by the petitioner in this instant petition.
4. Heard learned counsel for the parties and perused regards.
5. The main contention of the petitioner in this case is that he was assessed as
‘Average’ by the Mizoram Public Service Commission although in the ACRs for the
years 1994-95, 1995-96, 1996-97 and 1997-98 he was graded as ‘Good’ but in the ACR
for 1998 – 1999 he was graded as ‘Average’. According to the petitioner since he was
graded ‘Good’ in 4(four) ACRs it is not possible that he should be graded ‘Average’ in
the last ACRs. According to the petitioner the grading of the petitioner as Average has
adverse affect but the said grading was not communicated tot the petitioner. In support of
this contention the petitioner relied in the case of U.P.Jal Nigam & Ors. –Vrs- Prava
Chandra Jain & Ors. Report in 1996 Vol.2 SCC 363. In the said case, the petitioner
therein was earlier graded as ‘Outstanding’ but latter on he was reduced to the level of
‘Satisfactory’ and this was not communicated to him. By this down-grading the case of
the petitioner therein was down grade by four stages. Therefore the Apex Court held that
it was adverse.
507
6. In the instant case the petitioner was graded ‘Good’ in four ACRs but was given
‘Average’ in the last ACR. This down grading of the petitioner from ‘Good’ to Average
in my consider opinion is not adverse to the petitioner, as shall be discussed herein
below.
7. In Para 3.3 of the Office Memorandum dated 3.9.98 the Procedure to the observed
by Departmental Promotion Committee (DPC) it is clearly stated that Average may not
be taken as Adverse Remark. This has also been clarify by the State Govt. in the letter
dated 24.8.2000 Annexure-C (iii) to the affidavit in opposition of the State Respondent,
whereby it was clearly stated that average itself is not taken as adverse remark. For the
purposes of clarification in this point the said letter Annexure-C(iii) is reproduced below:
“With reference to your letter No.A.20012/10/94-DAT/73 dated 27.6.2000 on the above subject, I am directed to state that since the post of Auditor is a Gazette post, promotion to the post was considered by MPSC and officiating promotion was given to Pi Lalhmachhuani, Assistant Auditor on the recommendation of MPSC after comparative analysis of ACRs of the candidates. As per Recruitment Rules, the post of Auditor is a Selection post and ACR is the sole criteria for selection. From a plain reading of the said representation submitted by Pu.L.R.Coloney, it seems that the officer is having a misconception and confusion about ‘Average’ itself is not taken as ‘Adverse’ remarks in respect of an officer. At the same time it cannot be regarded as complementary to the Officer as average performance should be regarded as routine and undistinguished. It is only performance that is ‘above Average’ really noteworthy which should entitle an officer to recognition and suitable rewards in the matter of promotion: Hence, the question of ignoring ‘Adverse’ remarks does not arise since ‘Average’ is not an ‘Adverse’ remarks as stated above. With regard to super cession of officer with lower grading by those with higher grading, officers graded ‘Good’ will be superceded by officers graded ‘Very Good’ for at least 4 (four) years of his ACRs including the last ACR when the minimum length of service required at the feeder grade for promotion is 5 (five) years. This is as per provisions contained in the O.M. No.A.32012/1/81-APR(B)/Loose dated 3.9.98 of DP & AR (GSW). It is, therefore, very clear that there is no deviation from Rules.
508
Therefore, the aggrieved officer may be properly informed in line with the above facts and he may be further informed to improve his performance in future.”
8. The above letter was duly communicated to the petitioner by Director, Accounts
& Treasuries Vide his letter dated 31.8.2000 (Annexure-C (IV) to the affidavit-in-
opposition).
9. It is not disputed that the procedure of selection was made by the Mizoram Public
Service Commission in accordance with the Para 3.5 (i) of the said Office Memorandum
dated 3.9.98 and that the selection was also made on that basis. In the said selection by
the Mizoram Public Service Commission the condition laid down in the said Para 3.5(i)
of the Office Memorandum was also duly complied with in as much as the name of the
petitioner and respondent No.5 and other candidates were arranged in the order of their
inter-se-seniority. This fact is also not disputed by the petitioner. The only contention of
the petitioner is that the Bench Mark of the petitioner was shown as Average only
because of the fact there him ACR was shown as Average for the year 1998-1999.
10 In Para 3.4 (G) of the said Office Memorandum it is provided that “availability of
the ACR for the last year is essential as this most often determined that status of the
Government servant’s ACR. Hence, the last year ACR of the officer, should be furnished
at the time of submission of proposal/Agenda Papers”. A bare perusal of the said
provision of the Office Memorandum shows that the Mizoram Public Service
Commission has given the Bench Mark of the petitioner as Average as his last ACR was
‘Average’.
11. In the Writ Petition nowhere is stated that the Average Bench Mark given to the
petitioner is ‘Adverse’ to him. The petitioner mentioned this Adverse Remark only in his
representation-dated 9.8.2000 (Annexure-11 to this Writ Petition) submitted by him to
the Chief Secretary, Government of Mizoram. In reply to this representation of the
petition the State Government, has issued the said letter dated 24.8.2000 as quoted above.
The petitioner did not assailed this letter as clarified by the State Government although
509
the same was communicated to him and that the Writ Petition was also filed much after
the said letter was intimated to the petitioner.
12. Considering the discussion made above this Court is of the said view that the
matter of selection as has provided in Para 3.5(1) of the said Office Memorandum and the
letter dated 24-08-200, the provisions made therein have been fully complied with by the
Mizoram Public Service Commission. As regard the Bench Mark of the Average given to
the petitioner by the Mizoram Public Service Commission this Court is of the view that
the same cannot be Adverse to the petitioner as the petitioner was down graded by one
stage only and not by 4 stages as in the case of U.P. Jalnigam & ors. Vs. Union of India
(Supra). Therefore the case of the petitioner cannot be treated at par with the said case.
The matter is further being made clear in the said Office Memorandum and the said letter
dated 24-08-2000 (quoted above) that the Bench Mark average is not adverse to the
petitioner. The mere submission of the learned counsel that the grading average given to
the petitioner is adverse could not be accepted as there was no such statement made in the
writ petition.
13. In view of the above facts, I am of the view that, there is no merit in this petition
and accordingly, it is dismissed.
14. Considering the facts and circumstances of this case there will be no under as to
costs.
15. The interim order passed by this Court on 05-09-2000 stands vacated.
***
510
IN THE GAUHATI HIGH COURT AIZAWL BENCH ; AIZAWAL
WRIT PETITION (C) NO.84 OF 1999 D.D. : 21-8-2001
THE HON’BLE MR. JUSTICE RANJAN GOGOI
Vanlaldika & Others ... Petitioners Vs. The State of Mizoram & Ors. ... Respondents Inter se seniority in the rank of Executive Engineer in Grade-IV of the service and the date/dates for which such promotion are to be effective: Mizoram Engineering Service Rules 1995 – Promotion from Grade-IV to Grade-V of the service to be made on seniority cum merit under Rule 18(7), other things being equal preference can be given to the Post Graduate Degree holders – On the basis of the recommendation made by the Mizoram P.S.C. respondents 5 & 6 were placed at Sl.Nos.1 and 2 of the merit list on the basis of their Post Graduate qualification – The petitioner challenged the same – The Court holding that in the absence of any material to indicate that the Government has declared that Post Graduate qualification is a relevant factor for promotional post the recommendation made by Mizoram P.S.C. in favour of respondents 5 & 6 was bad and consequently allowed the writ petition with direction to the authorities to place the petitioners above respondents 5 and 6 in the merit list.
JUDGMENT
Aggrieved by the actions of the Mizoram Public Service Commission in
recommending the Respondents No.5 and 6 Sl.No.1 and 2 for the post of Executive
Engineer in Grade-IV of the Mizoram Engineering Service (PWD) and apprehending the
impending promotion of the said respondents, the instant writ petition has been filed.
During the pendency of the present writ application, a consequential order of promotions
dated 17th December 1999 promoting the Respondents No.5 & 6 and along with the first
three petitioners was made. Subsequently, by another order dated 7th February 2000, the
remaining petitioners namely, the petitioners No.4 and 5 were also so promoted. The
aforesaid development which has been brought on record by the learned counsel for the
parties, have narrowed the compass of the controversy in this litigation to initially one of
inter se seniority in the rank of Executive Engineer in Grade-IV of the service and the
date/dates for which such promotion are to effective.
511
2. Mr.C.L.Lbramnauva, learned counsel appearing for the petitioners in a short and
precise argument has placed before the Court the provision of Rule 18(3) and 18(7) of
Mizoram Engineering Service Rules, 1995 (hereinafter referred to as the Rules). Under
Rule 18(3), the promotion from Grade-IV to Grade-V of the service is to be made by
adopting the criteria of seniority-cum-merit. Under Rule 18(7), other things being equal,
preference can be given to the Post Graduate Degree holders for promotion. The learned
counsel submits that the admitted facts of the case would go to disclose a that the
petitioners and the Respondents No.5 and 6 are equal in merit having been graded Every
goods by the authority. The operation of Rule 18(7) of the Rules cannot come into the
present case in as much as there is nothing on record to indicate, that the post graduate
degrees which the Respondents No.5 and 6 possess, have been found to be relevant to the
works concerned. The condition subject to which Rule 18 (7) of the Rules would come
into play, it is submitted, are not present. Therefore, according to the learned counsel, the
promotion has to be made on the criteria of merit-cum-seniority, which has been not been
followed and the petitioners have been wrongly bypassed by juniors namely, the
Respondents No.5 and 6.
3. Mr. Lalsawta learned counsel appearing for the Public Service Commission by
referring to the minutes of the selection proceedings has placed before the Court on the
basis of the recommendation made in favour of the respondents No. 5 & 6 at Sl. No. 1 &
2 of the merit list. I have perused aforesaid minutes of the selection orders. It appears
that the Public Service Commission had, for its guidance, sought the views of the State
Govt. as to the correct meaning of rule 18 (7) of the Rules. In response, the State Govt.
had clarified that Rule 18 (7) of the rules would operate provided that the Govt. declares
that such Post Graduate Degree qualification is relevant to the works concerned in the
Promotional Posts for which the Govt. should specify certain/particular posts, where such
preferences should be given are such Post Graduate Degree is relevant. There is nothing
in the minutes of the selection meeting of the Commission, to indicate that for the
promotional post in respect of which the selection were held, necessary Govt. declaration
had been intimated to the Commission so as to enable the Commission to place the
512
respondents No. 5 & 6 at Sl. No 1 & 2 of the select list by relying on their Post Graduate
Degree qualification.
4. Mr. T. Vaiphel, learned Additional Advocate General, Mizoram has placed before
the Court copies of the promotion orders of the petitioners and the respondents No. 5 & 6
dated 17th December 1999 and 7th February 2000. According to learned Addl. Advocate
General, as the petitioners have also been promoted to Grade-IV of the service, the
petitioners would not have any surviving cause of action and the writ petition has become
in fructuous. I have considered the aforesaid submission and I am unable to agree with
the learned Addl. Advocate General. The promotions of the petitioners No. 1 2 & 3 by
order dated 17th December 1999 and the Respondents No.5 & 6 by order dated 7th
February 2000 have definitely narrowed down the controversy but the said promotion
cannot be understood to have rendered the present proceeding in fructuous. This Court
still will be required to consider the legality and validity of the promotion orders passed
in favour of the Respondents No. 5 and 6 and in the event, the Court finds that such
promotion is not tenable, appropriate orders directing retrospective promotion of the
petitioners will have to be made.
5. Mr. Lalrinthega, learned counsel for the Respondents No.5 and 6 has placed
before the Court the contents of Para-10 of the affidavit filed on behalf of the said
respondents in support of plea that Rule 18 (7) of the Rules have been rightly applied to
the instant case, it has been submitted that the Respondents No.5 and 6 have acquired
Post Graduate Degree in Civil Engineering and the promotions being to posts of Civil
Engineers in the higher cadre. Such Post Graduate Degree possessed by the Respondents
No.5 and 6 are certainly relevant for the promotion to the next higher post. I have
considered the submission. In the absence of a similar stand on behalf of the State
authorities, I am unable to give the benefits of aforesaid stand to the Respondents No.5
and 6 who are the beneficiaries of the orders of promotion. That apart whether Post
Graduate qualification in any particular discipline is a relevant factor for a promotional
post is a matter to be decided by the State Govt. on adequate materials; the
higher/promotional post in respect of which such benefit can be given have to be
513
identified by the Govt. As no record of the Govt. indicating that such an exercise has
been carried out is before the Court. I am unable to accept the submission made by the
learned counsel for the Respondent No.5 and 6.
6. Rule 18(7) of the Rules is clear and unambiguous in its content and meaning the
said Rule has been further clarified by the State Govt. Statement in its Communication to
the Public Service Commission indicating the manner in which the aforesaid Rule 18(7)
is to be applied by the Commission at the time of making its recommendation. In the
absence of any materials before this Court to indicate that the Govt. had performed by the
exercise of declaring that the Post Graduate Degree possessed by the Respondents No. 5
and 6 are relevant to the works involved in the promotional posts and also in the absence
of any Govt. Order indicating that the Promotional Posts for which the selection was held
have been specified and identified for conferring any additional advantages on account of
the Post Graduate qualifications, I am unable to hold the recommendations made by the
Public Service Commission in favour of the Respondents No. 5 and 6 in preference to the
writ petitioners and the consequential promotional orders passed in favour of the
Respondents No. 5 and 6 have been sanctity of law which can merit approval of this
Court. In view of the above, this Court is of the considered view that the petitioners have
been wrongly over looked and by passed by the authority in the matter of promotion to
Grade-IV of the service on the basis of the selection held on 22nd June 1999. As in the
meantime, all the petitioners as well as the Respondents No. 5 and 6 have been promoted,
the authority will now pass necessary orders on to dating the promotion of the petitioners
and/or placing them above the Respondents No. 5 and 6in the merit list prepared as well
as in the promotion order dated 17th December 1999 and on that basis, determine their
seniority in the higher post.
7. With the aforesaid observation, this Writ Petition stands closed.
***
514
IN THE GAUHATI HIGH COURT AIZAWL BENCH: AIZAWL
WRIT PETITION (C) NO.111 OF 2002 D.D. 19.6.2003
THE HON’BLE MR. JUSTICE P.G.AGARWAL
Sh. R.Sangliankhuma ... Petitioner Vs. The Mizoram P.S.C. & Ors. ... Respondents
Date of Determining the Eligibility for Promotion: Promotion to the post of Additional Secretary in Grade-I-A of Mizoram Ministerial Service – Under Rule 10A of the Rules promotion to the said grade amongst the members of the service in Grade-I have to render 2 years regular service in Grade-I – The petitioner was promoted to Grade-I as per order dated 31.8.1999 – Mizoram P.S.C. holding that as on the date of vacancy i.e., 3.8.2001 only 4th respondent was eligible and the petitioner had not completed 2 years of minimum service in Grade-I recommended the name of the 4th respondent who was promoted – The High Court after analyzing Clause 5(2) of O.M. dated 10.10.2002 relied upon by the 4th respondent held that as on 1.4.2001 Grade-I-A post was not in existence as it was created subsequently and as such 1.4.2001 cannot be taken as crucial date for considering eligibility and 1.4.2002 shall be taken as crucial date for eligibility and as on that date the petitioner had completed 2 years of service in Grade-I and was eligible to be considered for promotion – It was further held that the ouster of the petitioner from consideration was not in accordance with law and consequently, quashed the recommendation and promotion of 4th respondent and directed the P.S.C. to consider the matter afresh.
JUDGMENT
1. Heard Mr. C. Lalramzauva, learned counsel for the petitioner and also heard
Mr.N.Sailo, learned Government Advocate for the respondents No.2 & 3,
Mr.K.V.Tlangmawia MPSC for respondents No.1 and Mr.George Raju for respondent
No.4.
2. The matter relates to selection, appointment and promotion to the post of Addl.
Secretary in Grade-I-A, of the Mizoram Ministerial Service (hereafter referred to as the
service, for short.) Vide Notification dated 3rd August 2001 the State of Mizoram has
upgraded one post of Joint Secretary to Addl. Secretary under the above service and the
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Mizoram Ministerial Service Rules were amended vide Amendment Rules of 2002 and
the post was included in Grade-I-A of schedule ‘A’. Thereafter, in the month of July,
2002 the State made a requisition to the Mizoram Public Service Commission for
selection to fill up the post and forward the name of two persons that of the writ
petitioner and respondent No.4. However, the Commission was of the opinion that the
writ petitioner is not eligible for promotion and the other eligible candidate respondent
No.4 R.K.Singha’s name was recommended and he was accordingly promoted.
3. The writ petitioner has challenged the above recommendation and promotion
stating inter alia that he has been ousted from consideration on wrong interpretation of
the rule. The petitioner was promoted to Grade-I vide order dated 31st August 1999.
Rule 10-A of the rules reads as follows:
“Grade-I-A: Vacancies in this grade shall be filled up by promotion from amongst the members of the service in Grade-I who have rendered two years regular service in Grade-I failing which members of the service in Grade-I who have rendered 1 (one) year regular service in that grade but have completed 25 years Service calculated from the year of entry into Grade IV of the Service. The method of recruitment to this grade shall be by selection.”
4. The case of the writ petitioner is that, the petitioner had completed more than two
years of service in Grade-I when his candidature wad provided by the Government and
consider by the Mizoram Public Service Commission 2.9.2002 and on that date, the
petitioner had completed almost three years of service in Grade-I. The ground on which
the petitioner was ousted from consideration is in Para 3 of minutes of the Sub-
Committee, which reads as follows: -
“The Department placed the name of Pu.R.K.Singha and Pu Sangliankhuma for consideration. Certifying that they are the only eligible officers in the zone of consideration. The Department, also furnished vigilance clearance in respect of the above officers from Vigilance Department. However, on careful scrutiny of the proposal, it was found that Pu R.K.Singha was the only eligible candidate on the date of vacancy, i.e., 3rd August, 2001. The ACRs of the officers were carefully scrutinized and details of the assessment were place in a separate sheet. On the basis of this, it was decide to recommend Pu R.K.Singha for promotion to Grade-I ‘A’ of the Mizoram Ministerial
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Service (Additional Secretary) under Department of personnel and Administrative Reforms (General Service Wing).”
5. The respondents State had filed an affidavit-in-opposition supporting the claim of
the writ petitioner. The respondent MPSC has filed an affidavit-in-opposition justifying
their decision and the respondent No.4 has filed an affidavit-in-opposition support of the
Commission.
6. The point of consideration is what should be the date on which the requirement of
two years service will be calculated. Rule 10(1) quoted above does not provide any
specific provision on this count.
7. Learned counsel for the respondent No.4 has referred to the officer memorandum
dated 10th October 2002 and it is submitted that the earlier memorandum was also similar,
clause 5(2) of the office memorandum reads as follows:
“5.2 Crucial date for determining eligibility. The eligibility dates for determining the eligibility of officers for promotion would be the first Day of the Financial Year, i.e., 1st April. The crucial date indicated above would be applicable to only such services and post for which statutory service rules do not prescribe a crucial date.”
8. Thus, we find that when the Service Rules were silent or do not prescribe any
crucial date. The crucial date shall be 1st of April. In the present case 1st April 2001
cannot be the crucial date as because on that date, the post of Grade-I ‘A’ was not in
existence, it was created subsequently and the request for selection was made in the
month of July 2002 and the selection took place in September, 2002 and hence 1st April,
2002 shall be crucial date for fixing the eligibility criteria. Admittedly on that date, the
writ petitioner had completed two years of service in Grade-I of the service.
9. In view of the above, we find that the ouster of the writ petitioner from
consideration was not in accordance with law and consequently the selection must go,
which we do hereby. The selection dated 2.9.2002 made by the Mizoram Public Service
517
Commission and the subsequent Promotion of the respondent R.K. Singha is hereby set
aside and the matter is remitted back to the Mizoram Public Service Commission to make
proper selection accordance with the rules and regulation, considering the case of eligible
persons who are within the zone of consideration. Mr. George Raju has submitted that
the promotion/appointment of respondent No.4 may not be disturbed and he may be
allowed to continue in the post till selection is made by the Mizoram Public service
Commission. The order of selection and promotion must be set aside for non-
consideration of the case of the petitioner. The State of Mizoram will be, however, at
liberty to make any interim arrangement, as it may deem fit and proper.
10. Mr.K.V Tlangmawia, learned counsel appearing for Mizoram Public Service
Commission, prays for four week’s time to process the matter. It is provided that the
process may be completed within a period of six week’s from today.
11. The writ petition stands allowed. No costs.
***
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IN THE GAUHATI HIGH COURT AIZAWAL BENCH : AIZAWAL
IN W.P.(C) No.101 of 2002 D.D. 8.4.2004
THE HON’BLE MR. JUSTICE B.K.SHARMA
Sh.T.Lalropuia ... Petitioner Vs. The State of Mizoram & Others ... Respondents Selection of 2 posts of Assistant Director (Forensic): Mizoram Police Department (Group ‘A’ Posts) Recruitment Rules 2001 – Qualification prescribed for Assistant Director (Forensic) includes working experience in any recognised Forensic Science Laboratory – On the basis of qualification Petitioner No.I and respondent No.6 were selected and placed them at Sl.Nos.1 and 2 respective and the other candidate petitioner No.II was not selected - The requirement of working experience being ambiguous in as much as it does not prescribe the duration of experience and the stage from which Forensic Laboratory in Mizoram in which the Petitioner No.II allegedly gathered working experience can be said to be a recognised Forensic Science Laboratory – The High Court remanded the matter to the State Government for proper consideration of the matter and decision and also to consider whether all the 3 candidates who possess the educational qualification can be accommodated by creating one more post.
JUDGMENT
Both the writ petitions have been heard analogously. The issue involved in the writ
petitions is same. In WP(C) No. 101 of 2002 the writ petitioner (hereinafter referred as
“Petitioner No. I”) seeks a direction for implementation of the recommendation made by
the Mizoram Public Service Commission (in short MPSC) for his appointment as Asst.
Director of Forensic Science Laboratory, Mizoram under the respondents. On the other
hand in WP (C) No. 105 of 2002 the writ petitioner (hereinafter referred to as Petitioner
No. II”) has prayed for setting aside and quashing of the recommendation made in favour
of the Petitioner no. I.
2. The basic facts are not in dispute. The MPSC issued an advertisement No. 3 of
2001-2002 for two posts of Asst. Director (Forensic) under Mizoram police department.
The prescribed qualification laid down in the advertisement was M.Sc. in (Forensic,
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Chemistry, Physics, Mathematics, Zoology, Botany, Bio-chemistry, Micro-Biology, Bio-
Physics etc.) OR Bachelor of Science with Post Graduates Diploma in Forensic Science
with working experience in any recognized FORENSIC SCIENCE LABORATORY with
study in Mizo language up to MIDDLE SCHOOL STANDARD. Preference was to be
given to those who were M.Sc. (Forensic) OR Bachelor of Science with Post Graduates
Diploma in Forensic Science. The recruitment rule for the said post of Asst. Director
provides for 100% direct recruitment. The educational qualification and other
qualifications required for direct recruitment to the said post has been prescribed in the
recruitment Rules, called as Mizoram Police Department Group-A posts Recruitment
Rules, 2001, which is quoted below.
1. “M.Sc. in (Forensic, Chemistry, Physics, Mathematics, Zoology, Botany, Bio-chemistry, Micro-Biology, Bio Physics etc.) OR Bachelor of Science with Post-Graduate-Diploma-I in Forensic Science with working experience in any recognized Forensic Science Laboratory.
2. Working knowledge of Mizo language up to Middle School standard.
3. Preference will be given to M. Sc. (Forensic) or B.Sc. with Post Graduate Diploma in Forensic Science.”
3. All together 54 candidates applied for the posts including the two Writ Petitioners
and the respondent No. 6 who got himself impleaded in WP(C) No. 105/2002. Out of the
54 applicants, 40 applicants held to be eligible by the MPSC, which included the two-
writ petitioners and the respondents No. 6, were called for interview. Only 31 candidates
including the writ petitioners the respondent No.6 appeared before the selection
committee. The M.P.S.C. conducted the selection and recommended 3 candidates for
appointment against two post the Petitioner No. I was placed at Serial No. 1 while, the
respondents No. 6 was placed at Sl. No. 2 the Petitioner No. II was placed at Serial No.
3.
4. After the aforesaid recommendation made by the MPSC, the petitioner No. II made
representations urging for cancellation of the recommendation made in favour of the
petitioner No. I on the ground that he did not have working experience in any recognized
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forensic Science Laboratory and thus was not even eligible to be called for interview.
On the basis of such representations, the Govt. of Mizoram in the Home Department
addressed a letter dated 8/1/2002 to MPSC for review of their recommendation on the
ground that the petitioner No. I did not have working experience in any recognized
Forensic Laboratory. It is the legality and validity of this letter, which has been
questioned by the petitioner No. I. He has also prayed for a direction to the respondents
to act lawfully, fairly and reasonably in the matter of appointment to the post of Asst.
Director (Forensic).
5. On the other hand, the petitioner No. II has opposed the recommendation made in
favour of the petitioner No. I. The basic stand taken in the writ petition is that as per the
Recruitment rules referred to above a candidate must possess working experience to be
eligible for consideration for appointment as Asst. Director. According to the writ
petitioner, he had the working experience having worked in the Forensic Science
Laboratory, Mizoram since 08/06/1999. It will be pertinent to mention here that the writ
petitioner while was working as Sub-Inspector of Police in the department was attached
to the Forensic Science Laboratory with effect from 08/06/1999 and he having worked
there allegedly gained working experience as contemplated under the Recruitment Rules.
Thus it is his case that as against such working experience, the petitioner No. I did not
have the working experience so as to be eligible to be considered for selection and
appointment.
6. It is in the above backdrop the rival contentions have been raised centering around
legality and validity of recommendation made in favour of the petitioner No. I. The
petitioner No. II has naturally visualized that in the event of ouster of the petitioner No.
I, he will get a chance for appointment against on of the two posts. So far as respondent
No. 6 is concerned, nobody has questioned his recommendation. He was also attached
to the Forensic Science laboratory like that of the petitioner No. II, while was working as
Asst. Sub Inspector of Police. In his case as, well as in the case of the petitioner No. II,
the Deputy Director, Forensic Science Laboratory, Mizoram gave individual certificate
certifying their alleged experience having worked in the laboratory.
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7. I have heard Mr. George Raju, learned counsel appearing on behalf of the
petitioner No. I who has been arrayed as respondents No. 5 in the other writ petition. I
have also heard Mr. A. R. Malhotra, learned counsel appearing for the petitioner No II,
who has also been arrayed as respondents No 5 in WP(C) No. 101/2002. I have also
heard Mr. K. V. Tlangmawia, for respondent No 1 and Mr. Aldrin Lallawmzual, AGA
Mizoram for the respondents No 2,3 and 4 as well as Mr. Liansagzuala who argued on
behalf of the respondent No. 6.
8. Mr. George Raju, learned counsel appearing on behalf of the petitioner No. I
submitted that a statutory bodies like MPSC having made the recommendation upon
evaluation of the relevant materials, same cannot be called in question as has been
sought to be done in the instant case. Referring to the academic qualifications of the
petitioner he argued that the petitioner is undoubtedly much more meritorious and
brilliant than the petitioner No. II. As regards the qualifications relating to working
experience, he submitted that such experience is required only in respect of bachelor
degree holder and not in respect of M.Sc. degree holder like that of the petitioner.
According to him such a position is explicit on the face of the particular clause in the
Recruitment Rules as have been quoted above. He further submitted that the petitioner
no. II having obtained M.Sc. degree in December 1999, his alleged working experience
in the Forensic Laboratory from June 1999 is inconsequential so far as the experience is
concerned and that the experience can only be counted from the date of acquiring the
required qualifications. Referring to the gazette notification dated 31/7/2000, he
submitted that the Government of Mizoram approved the setting up of the Forensic
science Laboratory in the State of Mizoram only with the issuance of said notification
and thus the alleged working experience of the respondent no 5 i.e. the writ petitioner no
II prior to that is inconsequential. He further referred to the notification dated 9/1/02 by
which the Government of Mizoram made a declaration to the effect that the State
Forensic Science Laboratory was non-commercial and in the nature of Science and
Technology Institution under the Home Department to formulate expert opinion on all
types of exhibits. Referring to this notification he submitted that the working experience
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even if any gathered by the respondent no 5 i.e. writ petitioner no.II prior to the
notification was of no consequence and he could not have gathered any experience prior
to issuance of the said notification and thus was equally lacking experience. He finally
argued that mere issuance of a certificate by the Deputy Director of Forensic Science
Laboratory cannot bestow any right on the respondent No. 5.
9. Mr. A. R. Malhotra, learned counsel appearing on behalf of the petitioner no II on
the other hand submitted that on the face of the Recruitment Rules making provision for
qualification for the post of Asst. Director, it is clear that as against possession of the
working experience by the petitioner, the petitioner in petition no I did not have such
experience, which naturally would disentitle him to be in the zone of consideration being
not eligible to apply for the said post. As against the arguments of Mr. George Raju,
learned counsel for the petitioner no I that the experience of the petitioner no II is
inconsequential, Mr. Malhotra, learned counsel for the petitioner No. II submitted that
even if the working experience gathered by the petitioner prior to December 1999 when
he completed his M.Sc. and prior to the notification dated 31/7/2000. On which date the
Forensic Science laboratory in the state was approved by the Government then also he
had enough experience till the date of issuance of the advertisement on 28/8/2001. Thus
he argued that the recommendation made in favour of petitioner no I cannot be acted
upon and such recommendation is liable to be cancelled.
10. The State of Mizoram has filed and affidavit supporting the interpretation given
by the petitioner no II. According to them the working experience as prescribed in the
Recruitment Rules is a requirement both in case of M.Sc Degree holder and B.Sc with
Post Graduates Diploma in Forensic Science. According to them the petitioner no I did
not have the requisite qualification of working experience and thus a request was made
to the MPSC to make a fresh selection. On the other hand the MPSC has justified its
action by filing an affidavit. Their interpretation of the aforesaid clause of working
experience is reflected in paragraph 3 of the affidavit.
“ The Respondents no I, after careful consideration of the provision of the Recruitment Rules is of the opinion that there could be two interpretation of
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the provision of the said Recruitment Rules. The first interpretation is that for all applicants possessing Master Degree/Bachelor Degree having working experience in Forensic Laboratory is compulsory, requisite qualification. Secondly, on careful scrutiny of the Recruitment Rules, it could also be perceived that the first and foremost requisite qualification for the said post is Master Degree. If there are no candidates having Master Degree qualification then candidates having working experience in any Forensic Science Laboratory were eligible. Hence the No. 1 respondent, based on the second interpretation of the said Recruitment Rules as enumerated above has conducted the selection and recommended one candidate having Master Degree in Forensic Science and another candidate with Bachelor Degree in Science having Diploma in Forensic Science and working experience in a recognized Forensic Laboratory.”
11. I have considered the rival submissions made on behalf of the parties. I have also
perused the materials on record including the record of produced by the learned counsel
for the MPSC. There is no dispute that in the recommendation made by the MPSC the
petitioner No.I has been placed at Serial No. 1 while the respondents no 6 has been
placed at Serial No.2. On the other hand, the petitioner No. II has been placed at Serial
No.3. It is also not in dispute that the advertisement in question was for two posts only.
The qualification prescribed for the post has been quoted above. The whole controversy
is as to whether the Clause relating to working experience is applicable only in respect of
the B.Sc degree holder with postgraduate diploma in Forensic Science or the same is
equally applicable in respect of M.Sc degree holder. I have carefully considered the
particular clause. The relevant clause under the head “Educational Qualifications and
other qualifications required for Direct Recruitment” under which the above provisions
have been made in the Recruitment Rules itself is suggestive that there are two parts
relating to qualification. One is “educational qualification” and the other one is “other
qualification”. In between M.Sc in various subjects and Bachelor of Science with
postgraduate diploma in forensic science there is “OR” meaning thereby that both the
educational qualifications are considered to be equal as regards the eligibility. The words
“with working experience in any recognized Forensic Science Laboratory” have been
separated by a semi-colon, which is used to separate the parts of a sentence or item in a
detailed list, showing a pause i.e. longer than a “comma” but shorter than a “full stop”.
It is made use of to separate parts of a sentence and to separate two main clauses,
especially those not joined by a conjunction. Thus it cannot be said that the working
524
experience is prescribed only in respect of the Bachelor of Science with postgraduate
diploma in Forensic Science. On a plain reading of the qualification clause as quoted
above, I am of the considered opinion that such working experience is required in case of
M. Sc. Degree holder also.
12. As per the heading of the clause itself the educational qualification for the post of
Asst. Director is either M.Sc., in the specified subject or Bachelor of Science with
postgraduate diploma in Forensic Science. These two requirements in a single sentence
have been separated by, a semi colon with the sentence relating to working experience.
Thus the working experience is required in respect of both and it cannot be said that the
same is requirement only in respect of Bachelor of Science with postgraduate diploma in
Forensic Science. This position is further fortified from clause 3 of the particular column
which provides for giving preference to M.Sc. (forensic) OR B.Sc with postgraduate
diploma in Forensic Science. The stretch is in Forensic Science and accordingly
preference has been provided to both M.Sc. (Forensic) degree holder & B.Sc. degree
holder with post graduate diploma in Forensic Sience. Thus, the intention of the
legislature is clear. They have equated the qualification of M.Sc. (forensic) with that of
B.Sc with postgraduate diploma in Forensic Science. If that be so the working
experience prescribed for the post incorporating the same in a sentence separate by a
semi-colon shall be applicable for both i.e. M.Sc in various subjects and B.Sc. with
postgraduate diploma in Forensic Science.
13 After having held that the working experience is in the category of “other
qualification” as prescribed in the relevant clause of the Recruitment Rules, it is now to
be seen as to what will be the consequence to allegedly not possessing that qualification
by the petitioner No. I, and what will be the advantage of such qualification allegedly
gathered by the writ petitioner No. II. The clause prescribing “other qualification” as
“with working experience in any recognized Forensic Science Laboratory” appears to be
vague and indefinite. Firstly, it does not prescribe any length of experience. It also does
not prescribe as to what should be the nature of experience. It cannot be said that any
kind of experience gathered by an incumbent having worked in a Forensic Science
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Laboratory can be made use of or said to be the “working experience” having relevance
and nexus to the post in question i.e. the Asst. Director (forensic). The Recruitment
Rules has not prescribed the nature of working experience and the duration of the same.
There should have been some indication as to the nature and requirements of the working
experience, which could be said to be relevant for the post of Asst. Director. One may
have good numbers of years of experience working in any capacity in the Forensic
Science Laboratory but the same may not be relevant for a particular post. On the other
hand one may have limited but relevant working experience for a particular post. One
may have longer duration on relevant working experience than another having shorter
duration of relevant experience. In such a situation what will be the yardstick towards
consideration of the case of the incumbents has not been specified in the Recruitment
Rules. One may have a single day’s of working experience but nothing has been
specified as to whether that will also count towards working experience. One may argue
that the term “working experience” necessarily means a reasonable period of working
experience-having nexus with the post. Then again the question of interpretation will
come as to what will constitute reasonable period. Such a clause relating to prescribed
qualification cannot be left open for further interpretation as per the linking and disliking
of the authorities at the helm of affairs. The State Government shall do well towards
qualifying the position relating to the clause “with working experience in any recognized
Forensic Science Laboratory ”.
14. The records reveal that the petitioner No. 1 is otherwise having good academic
records. Having studied M.Sc in Forensic Science he must have had practical experience
working in the Laboratories. As per the recommendations made by the MPSC he stood
first securing higher marks than the petitioner No. II and the respondents No.6 Marks
were specified under different heads like knowledge of subject and Personality,
Intelligence, General Bearing, General Knowledge, Expressions, Academic and Addl.
Qualifications etc. It was on that basis the selection was conducted and the petitioner was
found to be the most suitable candidate. I have verified the records produced by the
learned counsel for the MPSC. Although as against the names of the respondents. No 6
and the petitioner No.II two years of experience at FSL has been reflected, but in respect
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of no other candidate such experience is reflected. The statement prepared by the
MPSC simply incorporated two years working at FSL” against the names of the said two
candidates, but it did not specify as to the nature of the working experience, its relevance
and nexus in respect of the post of Asst. Director (Forensic).
15. Time and again the Apex Court has held that the recommendations made by a
statutory body like MPSC should not be interfered with lightly in exercise of power of
judicial review under Article 226 of the Constitution of India. The MPSC has made the
selection with their expertise making recommendation in favour of the two incumbents.
The matter could have been resolved amicably, had there been 3 (three) posts of Assistant
Directors in as much as in such an aventually all the 3 contenders in this writ proceedings
could have been accommodated. It will be pertinent to mention here that both the writ
petitioners have not raised any grievance against the selection of the respondents No. 6.
However, he could not be appointed in view of the on going litigation. Thus there is no
impediment against his appointment so far as these writ proceedings are concerned.
16. The plea raised on behalf of the petitioner No.1 as regards the working experience
of the petitioner No. II in reference to the notifications dated 31-07-2000 and 09-01-
2002(Annexure-4 and 5 to W.P.(C) No. 10502) equally needs consideration. The
working experience under the Recruitment Rules is required to be had from a recognised
Forensic Science Laboratory. There is same doubt relating to the stage from which the
Forensic Science Laboratory, in Mizoram in which the petitioner No. II allegedly
gathered working experience, could be said to be a recognized Forensic Science
Laboratory which become fully operational. The petitioner No. II cannot get the benefit
of working experience prior to obtaining M.Sc. degree and not also prior to 31-07-2000.
Between 01-08-2000 to 08-01-2002 (the intervening period between the said two
notifications) what was the state of affairs with the Forensic Science Laboratory,
Mizoram and whether it became fully operational as a recognized one is not discernible
from the available materials.
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17. In view of the above and upon answering the related interpretition as indicated
above I remand the matter back to the State Government for a proper consideration of the
matter and decision consistently taking into account the observation made above. They
may also work out the feasibility of creating another post of Asst. Director or any other
equivalent post so as to accommodate all the three candidates involved in this writ
proceedings. Entire exercise shall be carried out as expeditiously as possible. It is the
expectation of this court that the State Government shall consider the matter in such a
manner so that the grievance of all the three candidates gets redressed.
18. With the above observations and directions both the writ petitions stand disposed
of.
***
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ORISSA PUBLIC SERVICE COMMISSION
529
IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION
WRIT PETITION NO.1123 OF 1986 D.D. 27.08.1987
THE HON’BLE MR. JUSTICE O.CHINNAPPA REDDY
AND THE HON’BLE MR. JUSTICE K.JAGANNATHA SHETTY
Shri Durgacharan Misra ... Petitioner Vs. State of Orissa & Ors. ... Respondents Whether minimum marks can be prescribed by the Commission for Viva-voce test? THE ORISSA JUDICIAL SERVICE RULES, 1964 - The Rules prescribed minimum qualifying marks of 30% in all the subjects taken together to be eligible to be called for Viva-Voce test – Rules do not prescribe any such minimum marks to be secured in the Viva-voce test – The Commission prescribed minimum of 30% in the Viva-voce test for selection – This is challenged before the Supreme Court under Article 32 of the Constitution. Held: The Commission must 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 in the viva-voc test is illegal and without authority.
Cases referred:
1) 1985 Supp. (1) SCR 657 – Ashok Kumar Yadav and Ors. etc. v. State of Haryana & Ors. etc.
2)1985 Suppl (2) SCR 367 – Umesh Chandra Shukla etc. v. Union of India
JUDGMENT
This is a petition under Article 32 of the Constitution challenging the validity of
the list of candidates prepared by Orissa Public Service Commission, Cuttack for
appointment as probationary Munsifs in the State Judicial Service.
The selection of candidates for subordinate judicial service is governed by the
Orissa Judicial Service Rules, 1964 (the “Rules”). The Rules were framed under the
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proviso to Article 309 read with Article 234 of the Constitution of India. The State
Public Service Commission (The “Commission”) is the selecting authority. The
candidates are required to be selected by written test followed by viva-voce test. The
written examination carries the maximum marks of 950 and the viva-voce test 200.
In accordance with the Rules, the Commission issued advertisement No.12 of
1982-83 inviting applications from eligible candidates for posts of probationary Munsif.
The petitioner was one of the candidates who applied in response thereof. In the written
examination conducted by the Commission the petitioner secured 470 marks. He was
called for viva-voce test in which he was given 30 marks. He thus secured in all 500 out
of 1150. The Commission prepared a list of candidates which we may term as ‘select
list’ and recommended to the Government altogether 56 candidates in four batches as
desired by the latter. The petitioner did not find a place in that list. The candidates with
less number of aggregate marks than that of the petitioner have, however, been selected.
The petitioner, therefore, challenges the validity of selection, on the ground among others
that it is arbitrary and contrary to the Rules.
The reason for exclusion of the petitioner from the select list is not obscure. It has
been at any rate now made explicit. He did not secure the minimum qualifying marks
prescribed by the Commission in the viva-voce test. In the counter affidavit filed on
behalf of the Commission it has been so stated. It is a said that the Commission has
taken a decision that a candidate to be suitable for the post of Munsif should secure at
least 30% at the viva-voce test. That decision was taken on the advice of the High Court
Judge.
The question for our consideration is whether the minimum marks prescribed by
the Commission at the viva-voce test is justified, and whether the select list prepared by
the Commission is in accordance with the Rules.
Rules 16, 17, 18 and 19 are the relevant rules, which have a material bearing on
the question that falls for determination.
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These Rules read as under:
Rule 16: “The Commission shall summon for the viva-voce test all candidates who have secured at the written examination not less than the minimum qualifying marks obtained in all subjects taken together which shall be the (30%) of the total marks in all the papers: provided that Government may after consideration with the High Court and Commission fix higher qualifying marks in any or all of the subjects in the written examination in respect of any particular recruitment.
Rule 17: The Chief justice or any of the other judges of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva-voce test and advice the Commission on the fitness of candidates at the viva-voce test from the point of view of their possession of the special qualities required in the judicial service, but shall not be responsible for selection of candidates.
Rule 18: The marks obtained at the viva-voce test shall be added to the
marks obtained in the written examination. The names of candidates will then be arranged by the Commission in order of merit. If two or more candidates obtain equal marks in the aggregate, the order shall be determined in accordance with the marks secured at the written examination, should the marks secured at the written examination of the candidate concerned be also equal, then the order shall be decided in accordance with the total number of marks obtained in the optional papers.
Rule 19: (1) The Commission shall than forward to the Government in the
Law Department the list of candidates prepared in accordance with Rule 18 indicating therein whether a candidate belongs Scheduled Castes or Scheduled Tribes.
(2) The list prepared shall be published by the Commission shall
be for general information. (3) The list, unless the Governor in consultation with the High
Court otherwise decides, shall ordinarily be in force for one year from the date of its preparation by the Commission.”
The Rule making authorities has provided a scheme for selection of candidates for
appointment to judicial posts. Rule 16 prescribed the minimum qualifying marks to be
secured by candidates in the written examination. It is 30% of the total marks in all the
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papers. The candidates who have secured more than that minimum would alone be called
for viva-voce test. The Rules do not prescribe any such minimum marks to be secured at
the viva-voce test. After the viva-voce test, the Commission shall add the marks of the
viva-voce test to the marks in the written examination. Thus than, Rule 18 states:
“The names of candidates will than be arranged by the Commission in the order of merit.”
This is the mandate of Rule 18. The Commission shall add the two marks
together, no matter what those marks at the viva-voce test. On the basis of the aggregate,
marks in both the tests, the names of candidates will have to be arranged in order of
merit. The list so prepared shall be forwarded to the Government. The Commission has
no power to exclude the name of any candidate from the select list merely because he has
secured lose marks at the viva-voce test.
Similar pattern of selection is generally found in all the rules of recruitment,
which prescribes written examination and also viva-voce test. There are two authorities
of this Court in this aspect of the matter. In this case P.K. Ramachandra Iyer & others Vs
Union of India & others. (1) this Court considered the scope of recruitment rules
governing the selection of candidates to various disciplines under the Indian council of
Agricultural Research. There the Agricultural Scientist Recruitment Board (AGRB) was
required to select candidates by holding competitive examination and viva-voce test.
ASRB prescribed a minimum qualifying marks, which a candidate must obtain at the
viva-voce test before his name could be included in the merit list. The question that fall
for consideration was whether the ASRB was competent prescribed such minimum?
Accepting the contention, that ASRB has no such power, this Court observed (P.244):
“Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribed Minimum qualifying marks to be obtained by the candidate at the viva-voce test. On the contrary, the language of Rule 14 clearly, negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva-voce test and the final merit list would be drawn up according to the aggregate of marks obtained by the candidates in written test plus viva-voce examination. The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further
533
qualification of obtaining minimum marks in the viva-voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the Rules. By necessary interference there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm.”
This closest to the fast of this case is the recent decision of this Court in Umesh
Chandra Shukla etc., etc., Vs Union Of India. (2) There the scope of Delhi Judicial
Service Rules, 1970 came up for consideration. Rules 17 and 18 of the Delhi Judicial
Service Rules, 1970 are similar to Rules 16 and 18 of Orissa Judicial Service Rules,
1964. The Selection Committee constituted under these Rules consisted among others of
Judges of the High Court of Delhi. The Selection Committee apparently though that it
has got power to exclude candidates securing less than 600 marks in the aggregate as not
being suitable for appointment to the Judicial Service. Accordingly it excluded all such
candidates from the select list. It was contended before this Court that the Selection
Committee would be competent in prescribing a minimum standard to be crossed by
candidates at the viva-voce test. In order to be suitable for appointment to judicial posts.
Repelling that contention this Court observed (pp.382-383)
“with regard to the second contention, namely that the High Court had no power to eliminate the names of candidates who had secured less than 600 marks in the aggregate after the viva-voce test, reference has to be made to Rules 17 and 18 of the Rules which provide that the Selection Committee shall call for viva-voce test only such candidates who are qualified at the written test as provided in the Appendix and that the Selection Committee shall prepare the list of candidates in order of merit after the viva-voce test. There is no power reserved under rule 18 of the Rules for the High Court to fix its own minimum marks in order to include candidates in the final list. It is stated in paragraph 7 of the counter-affidavit filed in writ petition No.4363 of 1985 that is the Selection Committee has inherent power to select candidates who according to it are suitable for appointment by prescribing the minimum marks which a candidates should obtain the aggregate in order to get into the Delhi Judicial Service. It is not necessary to consider in this case whether any other reason such as character, antecedents, physical fitness which may disqualify a candidate from being appointed to the Delhi Judicial Service may be taken into consideration by the Selection Committee while preparing the final list. But on going through the
534
Rules, we are of the view that no fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination because clause (6) of the Appendix itself has laid down the minimum marks which a candidate should obtain in the written papers or in the aggregate in order to qualify himself to become a member of the Judicial Service. The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an additional requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by clause (6) of the Appendix. The question whether a candidate included in the final list prepared and forwarded by the Selection Committed may be appointed or not is a matter to be considered by the appointing authority. In the instant case the decision that a candidate should have secured a minimum of 600 marks in the aggregate in order to be included in the final select list is not even taken by the High Court but by the Selection Committee. Moreover, recruitment of persons other than District Judges to the Judicial Service is required to be made under Article 234 of the Constitution in accordance with the Rules made by the Governor as provided therein, in consultation with the High Court. Article 235 which vast in the High Court the control over the District Courts and Courts subordinate thereto, cannot include the power of making rules with regard to recruitment of persons other than District Judges to the Judicial Services as it has been expressly dealt with in Article 234 of the Constitution. We are of the view that the Selection Committee has no power to prescribes the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix. We are, therefore, of the view that the exclusion of the names of certain candidiates, who had not secured 600 marks in the aggregate including marks obtained at the viva-voce test from the list prepared under rules 18 of the Rules is not legal.”
In the light of those decision the conclusion is inevitable that the Commission in
the instant case also has no power to prescribe the minimum standard at viva-voce test for
determining the suitability of candidates for appointment as Munsifs.
It was, however, urged by counsel for the respondents that the principles
enunciated by the aforesaid two decisions of this Court cannot as extended to the case on
hand. The counsel sought to derive support for their contention of rule 17.
535
In 17 provides that the Chief Justice or any other Judge of the High Court
nominated by the Chief Justice shall represent the High Court and be present at the viva-
voce test. He shall also advice the Commission on the fitness of the candidates at the
viva-voce test. The advice may relate to the special qualities to be prescribed by
candidates for judicial service. The rule 17, however, proceeds to state that such a Judge
shall not be responsible for selection of candidates. The contention for the respondents
was that a Judge of the High Court was present at the viva-voce test. He was an as part in
the field. He was primarily concerned with regard to fitness of candidates for judicial
service. He advised the Commission to determine the minimum marks to be secured at
the viva-voce test. The Commission accepted the advice and determined the cut out
marks in the viva-voce. It was also contended that the Judge could advice as the fitness
of candidates for judicial appointment and his advice could also relate to the minimum
that which a candidate should secure in the viva-voce test. If such power is not conceded
to the judge, his presence at the interview as provided under rule 17 would totally be
unnecessary.
We are not prescribed by this argument. That does not mean that we are inviting
the purpose of rule 17. The purpose is undoubtedly laudable and indeed. It is in
accordance with the observations of this Court in Ashok Kumar yadav and Ors., etc., etc.,
Vs.State of Haryana and Ors, etc., etc., There it was observed: -
“It is therefore essential that when selections to the Judicial Service are being made, a sitting judge of the High Court to be nominated by the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting Judge comes as an expert who, by reason of the fact that he is a sitting High Court Judge Knows the quality and character of the candidates appearing for the interview, the advice given by him should ordinarily be accepted, unless these are strong and cogent reasons for not accepting such advice and such strong and cogent rasons must be recorded in writing by the Chairman and members of the Public Service Commission.”
But the crux of the matter is whether the Judge present at the viva-voce test has
the power to add anything to the rules of recruitment. He may advice the Commission as
to the special qualities required for judicial appointments. His advice may be in regard to
536
the range of subjects in respect of which the viva-voce shall be conducted. It may also
cover the type and standard of questions to be put to candidates or the acceptance of the
answers given thereof. But his advice cannot run counter to the statutory Rules.
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 the 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.
In the result we allow the petitioner and quash the selection made by the Orissa
Public Service Commission with a direction to re-do the select list on the basis of the
aggregate marks obtained by the candidates in the written examination and at the viva-
voce test and in the light of the observation made. The list so prepared shall be
forwarded to the Government as required under 19 of the Rules for appointments as
Munsifs. The persons who fall within the revised list, if they are already in service need
not be disturbed. Their inter-as seniority, may however, be regulated as per the ranking
in the revised list.
In the circumstances, however, we make no order as to cost.
***
537
ORISSA ADMINISTRATIVE TRIBUNAL : BHUBANESWAR O.A.NO.956 OF 1988/M.P.1031/88
D.D. 18.9.1988
HON’BLE N.K.PUROHIT, MEMBER AND
HON’BLE GIAN CHAND, CHAIRMAN
Dr.Arup Kumar Misra ... Petitioner Vs. O.P.S.C. & Anr. ... Respondents
Recruitment to the post of Assistant Surgeon Class-II – Orissa Medical and Health Services:
The following contentions were raised:
i) Whether the impugned advertisement was illegal on account of 330 posts out of total 600 posts being reserved for being filled up by SC and ST and physically handicapped, ex-servicemen and sportsmen.
ii) Whether the criteria adopted for preliminary screening has vitiated the selection.
iii) Whether the petitioner was entitled to be given any preferential treatment as he has been continuing on adhoc basis under the Govt. The Tribunal negatived the above contentions raised by the petitioner who was
not called for interview and dismissed the application. Case referred: 1. 1984 SC P 1420 – Dr.Pradeep Jain v. Union of India 2. AIR 1985 SC P 1059 – The case of Dr.Dinesh Kumar
JUDGMENT
In this petition filed under Section 19 of the Administrative Tribunal Act, 1985
the petitioner has approached us for a direction to be issued to O.P.1 to consider the case
of the petitioner for the post of Assistant Surgeon as per advertisement No.6 of 1987-88
and hold the basis of selection as per advertisement No.6 of 1987-88 made by O.P.1 to be
illegal and also to further direct the O.P.1 to hold written examination and fill up the post
as per Advertisement No.6 of 1987-88 by the results of the written examination. We have
538
heard the learned Advocate for the petitioner and the learned State Counsel. As the issue
raised in the petition is a limited one we will dispose it of at the admission Stage.
2. From the averments made in the petition that were not disputed during the hearing
on admission by the State Counsel it is found that O.P.1 (O.P.S.C) published Notification
(Advertisement No.6/7-88) inviting applications for the post of Assistant Surgeon in
Class II of the Orissa Medical and Health Services. The petitioner was one of the
applicants for the post of Assistant Surgeon. However, he was not called for the
interview and being aggrieved by the same he has filed this petition before us claiming
the relief’s as detailed above: -
3. The petitioner has taken a number of objections to the impugned advertisement as
well as to the rejection of his candidature and has narrated them at length in the petition.
From the position stated in the petition and the submissions made before us during the
hearing we find that the objects are mainly three fold:
(i) That clause 2 of the advertisement is unsustainable in law as the total number of vacancies which have been reserved for S.C. and for physically handicapped etc., works out to 330, out of total number of 600 posts which exceeds 50 percent limit permitted under the rulings given by the Supreme Court in regard to filling up posts reserved for being filled up by SC/ST under article 16(4) of the Constitution and hence is (ii) That O.P.1 while screening the candidates have taken into account the marks obtained by the candidates in matriculation examination, I. Sc examination and M.B.B.S. examination which has vitiated the selection as marks obtained by the candidates in I. Sc. and matriculation examinations are not germane to the selection for the post. On the other hand, it has been argued, that, as a result of adoption of this criterion for preliminary selection better candidates have been weeded out. Moreover, it has been argued that such preliminary selection has artificially narrowed down the area of competition apart from being not suitable for judging the merits of the candidates as different universities have different total marks prescribed for the examinations. In this connection it has also been argued that correct method for preliminary screening could only be the written examination which was permissible under the impugned advertisement and had also been held on certain post occasions in connection with the selection of candidates for similar post and it is the written examination which should have been held for the preliminary screening.
539
(iii) That the petitioner has been working on ad hoc basis and was entitled to preferential treatment on the basis of past service as stipulated in the advertisement and the rejection of his candidature at the preliminary screening stage would result in his losing his job and also in his becoming over age by the time the next advertisement is issued.
4. The learned State Counsel has mainly argued that in the impugned advertisement
out of 600 posts only 300 have been reserved for Scheduled Castes and Scheduled Tribes
and out of the rest of the 300 posts meant for general candidates one percent vacancies is
reserved for physically handicapped, 3 percent for ex-servicemen and 1 percent for
sportsmen and as such the reservation for Scheduled Castes and Scheduled Tribes is only
to the extent of 50% of the vacancies. Moreover, he has explained that the reservation
related to existing as well as carry forward vacancies as provided under section 7 of the
Orissa Reservation Act as no recruitment to the post of Assistant Surgeon had been held
since the year 1984-85. It is his contention that there has been no violation of the 50%
limit for vacancies to be reserved for Scheduled Castes and Scheduled Tribes in the
instant case, as in the case of reservation for Physically Handicapped and other categories
mentioned in the advertisement there is no bar unlike in the case of reservation for
Scheduled Castes and Scheduled Tribes under the Orissa Reservation Act to filling them
up by general candidate. He has argued that the posts reserved for Physically
Handicapped etc., in the advertisement cannot be lumped with the posts reserved for
Scheduled Castes and Scheduled Tribes to work out the percentage of total posts which
have been reserved to be filled up by SC and ST and have to be separately considered and
has contended that there is nothing unreasonable or legally wrong advertisement for
physically handicapped, ex-servicemen and Sportsmen.
Regarding the contention of the petitioner that the preliminary selection has been
vitiated by the taking into account of the marks obtained by candidates in Matriculation
and I. Sc. Examinations, the learned State Counsel has mainly argued that it was clearly
specified Para 14 of the advertisement that O.P.S.C. can make at its discretion
preliminary selection of candidates either on the basis of their educational qualification
etc., and candidates thus selected will only be called for interview and as such there is
nothing wrong or illegal with the O.P.S.C. having made the preliminary selection in the
540
instant case on the basis of average percentage of marks obtained in respective
examinations. In this connection he has relied upon the judgment rendered by this
Tribunal in O.A.375/88 where the challenge to the preliminary selection on this very
basis was repelled by the Tribunal and the preliminary selection made on this basis was
upheld. He has further explained that since the petitioner in the preliminary screening on
the basis of the criteria adopted by the O.P.S.C. obtained 55,274% marks and his position
in the preliminary selection list was 656, whereas the candidate who occupied the last
position in the list of candidates and has been called for interview had to his credit
56.606% marks, there is no substance in the petitioner’s claim that he has been wrongly
and illegally not called for interview.
As regards the contention of the petitioner that being an ad hoc candidate he was
entitled for being given credit for past service, the learned State Counsel has argued that
since the applicant did not qualify after preliminary screening the question of giving him
preference did not arise at all and as such there is no substance/merit in this contention of
the petitioner as well.
5. We have carefully considered the rival contentions at the Bar. In view of the rival
contentions three issues fall for our determination:
(i) Whether the impugned advertisement was illegal on account of 330 posts out of total 600 posts being reserved for being filled up by SC and ST and Physically Handicapped, Ex-Service men and Sportsmen.
(ii) Whether the criteria adopted for preliminary screening has vitiated the selection.
(iii) Whether the petitioner was entitled to be given any preferential treatment as he has been continuing on ad hoc basis under the Govt.
6. As regards the point at (i) above, the main contention of the advocate for the
petitioner has been that the total number of vacancies reserved is 330 which works out to
55% as against the limit of 50% laid down by the Supreme Court in the case of M. R.
Balaji and others vs. State of Mysore AIR 1963 SC P 649 which was reiterated in the Dev
Dasan case AIR 1964 SC P 179 and it was clarified that the limit of 50% for filling
reserved posts will also apply when the posts reserved include carry forward vacancies
541
and as such the impugned advertisement suffers from an illegality. The question which
arises therefore is whether in calculating 50% limit laid down by the Supreme Court for
filling up vacancies for Scheduled Castes and Scheduled Tribes under Article 16(4) of the
constitution the vacancies reserved for physically handicapped, ex-servicemen and
sportsmen can be added. We have carefully considered the ruling given by the Supreme
Court in the cases relied upon by the petitioner and find no support for his contention that
to work out the excessive reservation which has been frowned upon by the Supreme
Court, the reservation for physically handicapped ex-servicemen and sportsmen has to be
added. On the other hand we agree with the learned State Counsel that the reservation of
posts made in favor of physically handicapped etc., in the advertisement is altogether a
separate matter and its reasonableness is to be determined independently of the
reservation made for the SC and ST. In view of this and in view of the fact that out of
total number of 600 posts only 300 posts have been reserved for SC & ST and this is well
within the limit prescribed for reservation of posts for SC & ST under Section 7 of the
Orissa Reservation Act, 1975 and also the limit prescribed under the rulings given by the
Hon’ble Supreme Court under Article 16(4) of the Constitution for filling of vacancies by
SC & ST, the objection taken by the learned Advocate for the petitioner has no
merit/substance and has to be rejected. Moreover, we also are of the opinion that it is too
late for the petitioner to raise this objection as admittedly he had duly applied for the post
and had not taken any objection to the advertisement either at the time it appeared or at
the time of applying.
As regards the point at (ii) above the main contention of the Advocate for the
petitioner before us has been that the marks obtained by the candidates in Matriculation
and I. Sc. Are not relevant to nor do they have any reasonable nexus with the objective of
the selection. He has also argued that OPSC should have held written examination for
preliminary screening instead of career marking resorted to by them and in support of this
contention of his he has relied upon the ruling given by the Supreme Court in the case of
Dr. Pradeep Jain versus Union of India AIR 1984 SC P 1420 AND THE CASE OF Dr.
Dinesh Kumar AIR 1985 SC P 1059. As regards the argument that Matriculation and
I.Sc. Marks have no relevance or reasonable nexus with the objective we find similar
542
objection was raised before us in case of Umesh Mishra and others versus OPSC in
O.A.375/88 decided by us on 28.4.1988 where after considering rival contentions of the
parties we have held as follows:
“………. We have carefully considered these arguments. We are unable to agree with the learned Advocate for the petitioner that the marks obtained by candidates in the Matriculation and Intermediate examination were irrelevant for the main object of the selection. Nor do we agree with him that there is no reasonable nexus between taking marks in Matriculation and Intermediate into account and the object of the Advertisements. We are of the opinion that the entire education career of a candidate is relevant consideration for selecting the best candidate as it cannot be denied that a candidate who has been uniformly good in his educational career from Matriculation onwards will definitely be rated as better than the one whose performance has been uneven. Thus, there is a clear and reasonable nexus between the entire educational careers having taken into account with the object of selection namely the present candidates with B.E. (Civil) qualification. ………. .”
In view of this we find no substance/merit in this argument and reject the same.
Coming to the 2nd argument put forward by the Advocate for the petitioner that
written examination should have been held, we have carefully considered the arguments
as well as authorities cited by him. We find the authorities cited are mainly in respect of
admission of students to Medical College, which is not the case in the present case.
Moreover, there was a clear stipulation in Para 14 of the impugned advertisement that the
Commission can make preliminary selection on the basis of educational qualifications of
the candidates. In view of this, and in view of the fact that the Commission has
uniformally applied the same criteria for preliminary selection of the candidates who
applied for the posts advertised, we do not find any substance/merit in this argument put
forward by the learned Advocate for the petitioner and hold that it was not incumbent
upon the OPSC to hold a written examination.
As regards the point at (iii) above, we find that under Clause (iv) of Para 4 of the
impugned advertisement it has been provided that preference will be given to candidates
having past service as Medical Officers under the State Government to their credit.
However, as argued by the learned State Counsel the question of giving such preference
does not arise in the petitioner’s case as he was eliminated in the preliminary screening.
543
We agree with the learned State Counsel in this regard and hold that petitioner having
been eliminated in the preliminary screening cannot claim any preference being given to
him for continuing on ad hoc basis. Nor are we impressed by the argument put forward
by the Advocate for the petitioner that by his rejection at the preliminary screening stage
the petitioner stands to lose his job and may become overage by the time the next
advertisement is made.
7. In view of the position discussed above, we hold that the impugned advertisement
did not contain any illegality and the Commission had both the authority and jurisdiction
to do the preliminary selection of the candidates and there has been nothing wrong or
illegal with the preliminary selection, which has been made and by virtue of which the
petitioner has failed to qualify for being called for interview. Accordingly the challenge
of the petitioner to his being barred from being called for the interview fails. As none of
his service/civil right has been prejudiced/adverse, affected we see no reason/justification
for entertaining the petition and dismiss the same summarily.
***
544
ORISSA ADMINISTRATIVE TRIBUNAL, CUTTACK ORIGINAL APPLICATION NO.639 OF 1992
D.D. 4.1.1996
THE HON’BLE MR. JUSTICE S.C.MOHAPATRA, CHAIRMAN Siba Kesaba Sahu ... Applicant Vs. State of Orissa & Anr. ... Respondents
Short-listing of candidates to be called for interview:
ORISSA MEDICAL EDUCATION RECRUITMENT RULES, 1979 - The
same principle followed in the first case (Dr.Thopan Pati vs. State of Orissa & Ors.) has been followed in this case and the procedure adopted for short listing of candidates to be called for interview has been upheld – The applicant who was not called for interview obtained interim order to appear for the interview and subsequently filed an application for publishing his result. The Tribunal rejected the said application and dismissed the original application. Case referred: AIR 1995 Supreme Court 336 (University of Delhi v. Raj Singh & Ors.)
ORDER
S.C.Monapatra, Chairman: In this application under Section 19 of the
Administrative Tribunals Act, 1985 (hereinafter referred to as ‘the Act’) applicant is
aggrieved by the selection of candidates for the post of Junior Teacher (Medicine) on the
ground that he has not been called to interview. When his application was not heard for
about 3 years, he filed an application for fixing a date of hearing. While considering that
application, I found that the facts are simple and question of law involved is not
complicated. Learned counsel for applicant having agreed that I can treat this case to be
of a special nature for being heard by me in a Bench consisting of one Member, I
exercised by power under Section 5 (6) of the Act and heard the parties.
2. The Orissa Public Service Commission has filed its reply. State of Orissa has not
filed any reply. However, at the stage of hearing learned counsel for applicant and
learned Standing Counsel filed written submissions.
545
3. Case of applicant is that he possesses Post Graduate Degree in Medicine and is
working as Assistant Surgeon in the State of Orissa since 17-09-1992. Orissa Public
Service Commission published advertisement on 16-03-1992 inviting applications for
selection of candidates for the post of Junior Teachers in different subjects including
medicine, applicant submitted his application on 05-05-1992. When applicant was not
called to interview he filed this application on 5-11-1992 and prayed for an interim
direction to allow him to appear at the interview. By order dated 11-11-1992 Tribunal
directed that in case application of the applicant is otherwise complete as per
advertisement, he will be allowed to appear at the interview scheduled to be held on
18-11-1992 or any other date if fixed thereafter and the result with respect to him shall
not be published, but one post of Junior Teacher shall be kept vacant.
4. Case of Respondent No. 2 is that the Commission has laid down a formula
uniformly applied in all cases to determine the number of candidates to be called for
interview for viva-voce test since the year 1987-88. As per the formula for a single
vacancy 10 candidates for 3 to 5 vacancies, 15 candidates for vacancies of 6 to 50, three
times the vacancies, for vacancies of 51 to 200 candidates twice the number of vacancies
plus 50, for vacancies of 201 to 225, 450 candidates, would be called for interview. For
vacancies of 226 and onwards twice the number of vacancies would be called for
interview. In respect of the present vacancies advertisement No.27 of 1991-92 was
published, which included 14 posts of Junior Teachers in the discipline of medicine, out
of them 4 were reserved for Scheduled Tribe, 2 for Scheduled Caste and one was for ex-
Service man. Basing upon educational career mark from Matriculation to M.B.B.S.
degree, a preliminary selection was made to limit the candidates to be selected for being
called to interview. 24 General candidates, 3 Scheduled Tribe and 2 Scheduled Caste
candidates were called to interview. The last General candidate secured 63-954% marks
in career. Applicant was placed at 46th position in career marking having secured 59-
182% marks. Applicant not having come within the range of 24 General Candidates was
not called for the interview for viva-voce test held from 18-11-1992 to 20-11-1992.
However, on the direction of the Tribunal applicant was permitted to appear at the viva-
546
voce test on 20-11-1992. The 9 candidates have been recommended by the Commission
on 28-11-1992 for appointment. In The assessment of career marking to short list
candidates for interview followed by the Commission has been upheld by the Tribunal in
various original applications.
5. There is no dispute that recruitment to post of Junior Teacher is governed by Rule
4 of the Orissa Medical Education Service (Recruitment) Rules, 1979. Rule 4(1) as
substituted by amendment on 4-10-1982 reads as follows.
“Appointment to Junior teaching posts in the Service shall be made by selection from amongst the Assistant Surgeons under the State Government or State Government or State Government undertakings with at least one year’s experience as such through the Public Service Commission which shall invite applications and process them.
Provided that the recruitment may also be made from amongst the Junior Teachers for the junior teaching posts, in any other speciality or higher speciality subject to the condition that seniority in the new speciality or higher speciality or higher speciality, as the case may be, shall be determined from the date of appointment in the new discipline in accordance with the placement given by the Commission and accepted by the Government.”
Earlier to this amendment, recruitment was to be made in accordance with Rule 15. After
amendment in 1982, this procedure is not necessary. Accordingly, Rule 15 was also
amended which reads as follows:
“In the matter of selection and promotion to the senior teaching posts the Government shall after obtaining the recommendations of the selection board, forward the same to the Commission along with a list of all eligible candidates including those who have not been recommended by the Selection Board. The names of all eligible candidates shall be arranged in order of seniority in their parent posts determined in accordance with these rules. The service particulars and particulars relating to their academic qualification, teaching experience, research and field experience, if any, of all eligible candidates shall be duly forwarded to the commission.”
Thus, Rule 15 is no more applicable for recruitment to Junior Teaching posts:
547
6. Applicant’s main grievance is that he has been eliminated by adopting a formula
of career marking which is not correct. Mr.Mishra, learned counsel for applicant has
relied upon a decision of Orissa High Court in Original Jurisdiction Case No, 858 of 1992
(Suryanarayan Tipathy-Vrs.- Vice Chancellor, Barhampur University and another)
decided on 14th may, 1992 in support of submission that the principle of career marking
is not justified. In the said decision candidates qualified from different Universities filed
applications and accordingly, standard of marking in different universities having
variance career marks was not accepted. The said decision has no application to the
present case. In the said case it was held that in case a candidate is other wise qualified
and eligible he should be asked to attend the interview and the application should not be
rejected. This general observation will have no application. Mr.Mishra has relied upon
the decision reported in A.I.R., 1995 Supreme Court 336 (University of Delhi-Vrs:- Raj
Singh and others) in support of his contention that career marking on the face of
academic qualification of candidates obtained from different Universities is wrong and
cannot be correct in rejecting an application when Rules do not provide for the same.
This decision also has been rendered in different context and the principle decided therein
will not have general application to all cases of recruitment.
7. Screening of candidates by career marking is reasonable in view of Rule 4 (iii)
which after amendment in the year 1982 reads as follows:
“In selection of candidates the Commission shall give due regard to the candidates’ academic attainments, experience, aptitude and ability to teach.”
Academic attainment is a broad term which includes the Matriculation or High
School Certificate Examination and other higher examinations. Therefore, career
marking is justified; If after taking the career marks into consideration which comes
within the meaning of academic attainments, applicant is eliminated for the purpose of
being called to interview to test experience and aptitude and ability to teach, it cannot be
said to be unreasonable. Accordingly, this stand taken by the learned counsel for the
applicant for avoiding the viva-voce examination of the applicant cannot be accepted.
548
8. Applicant has prayed in paragraph 7 of the application to set aside the
advertisement issued by the Public Service Commission and all other actions taken
thereafter including selection of candidates on the principle evolved by the Commission
and to direct. Respondent No.1 to give the applicant appointment as Junior Teacher.
Mr.Mishra submitted that applicant having attended the interview as per the orders of this
Tribunal, recommendation should be made by the Commission on the basis of such
interview specially when Tribunal has directed applicant and others to be tested in the
interview and a post is also kept vacant. This submission is no doubt attractive but has no
subsistence. As disclosed by the Public Service Commission, 24 general candidates
obtaining marks up to 63,954% in career marking were called to interview. Position of
applicant was 46 in career marking as he secured 59.182% marks. If, Tribunal would
have directed to call all the 22 candidates possessing marks between 59.182% and
63.954% to interview, different consideration would have arisen/since the formula
involved by the Public Service Commission is not statutory as provided under the Rules.
If applicant, the 46th candidate gets the benefit of the result of interview, other 21
candidates have been deprived of the consideration as they did not approach the Tribunal,
and could not face the interview. If some approached and some others left out, those who
did not approach the Tribunal should not suffer on account of interim direction of the
Tribunal. 10 posts were available for general candidates to be appointed. In view of
direction of the Tribunal only one post has been kept vacant, if I give a direction to the
Commission and call the other 21 candidates to interview for one post left vacant by
direction of the Tribunal. The matter would cause difficulty since the applicant was
examined by the Commission in one standard and the rest would be examined by another
standard. Therefore, in the circumstance, I am not inclined to give a direction to publish
result of the applicant.
9. In result, original application is dismissed. There shall be no order as to costs.
***
549
IN THE HIGH COURT OF ORISSA, CUTTACK O.J.C. NO.8080 OF 1997
D.D. 15.05.1998
THE HON’BLE THE CHIEF JUSTICE MR.S.N.PHUKAN AND
THE HON’BLE MR. JUSTICE A.PASAYAT Srinivas Samant ... Petitioner Vs. The Chairman, O.P.S.C. & Anr. ... Opposite Parties Whether holding of Preliminary Examination in the absence of specific provision in the Recruitment Rules is valid? Recruitment to different posts in Orissa Civil Services (Combined Recruitment Examination) Rules 1991 – The said Rules do not provide for holding Preliminary Examination – In view of the number of candidates the High Court has held that the Commission has got the power of short listing – Regarding allegation with regard to central valuation of answer scripts, publication of result and policy of reservation etc., the High Court has upheld the contentions of P.S.C. and dismissed the writ petitions filed by the petitioners who were declared unsuccessful in the Preliminary Examination.
JUGDMENT
By this common judgment, we dispose of the aforesaid batch of writ petitions. In
some of the writ petitions, we have taken suo motu action on receiving letter.
2. The Orissa Public Service Commission (for short, the O.P.S.C.) issued an
advertisement inviting applications for admission to Combined Competitive
Examination, 1997 for appointment to different posts in Orissa Civil Service a reference
has been made to Orissa Civil Services (Combine Recruitment Examination) Rules,
1991. Rule III provides for direct recruitment. According to column-2 of schedule I of
the Rules, direct recruitment has to be done through competitive examination under the
relevant rules, regulations resolutions, etc., The Commission has to recommend under
rule 50 a merit list of the candidates. Rule 4 deals with holding of examination in the
manner prescribed in Schedule II. Applications of all the petitioners were found valid
and they appeared in the Orissa Civil Service Preliminary Examination, 1997 held on
23-03-1997. There were two papers, namely, English and M.I.L. (Oriya/Hindi). All the
550
petitioners, who became unsuccessful in the preliminary examination, have filed the
present petitions.
3. It has been pleaded that according to rules, there is no provision for holding
preliminary examination and, therefore, it is violate of the said rules. It has also been
pleaded that normally, codification of examination papers takes place in the office of the
Commission in presence of one member and then stamped and kept in the locker of the
chairman. Only when all the papers are returned to the office after valuation that
decoding process takes place in the office of the Commission. According to the
petitioners, the coding was done by outside agencies like teachers of Ravenshaw College
and another College. Persons who were entrusted with the coding work were also
entrusted with the evaluation of papers. The following allegations have also been made: -
1. Valuation of answer scripts was erratic and examiners were inexperienced.
2. Candidates who did not appear in the examination have been declared qualified. Two roll numbers were mentioned in this regard, namely, roll nos. 1778 and 5385.
3. Publication of result was erroneous because there were large gaps in between the roll numbers published.
4. 500 answer scripts were lost in the Ravenshaw college. 5. There were instances of favouritisms. 6. Policy of reservation for Scheduled Castes and Scheduled Tribes was
not applied in the Preliminary examination.
4. A common counter affidavit has been filed on behalf of the Commission. I t has
been stated that examination of recruitment to Orissa Civil Services was held after a long
time- the last examination was held in the year 1996. The commission could publish the
result expeditiously as it adopted for the first time the system of Central evaluation of
answer scripts instead of evaluation at the residence of individual examiners. According
to the Commission, having regard to the large number of candidates, there was a need for
qualifying screening test through the system of preliminary examination, which was
introduced for the purpose of selection of candidates for the main examination. In the
preliminary examination, 39,082 candidates were admitted. The examination was held in
121 centres on 23-03-1997. The number of candidates who took the examination in
English and M.I.L. was 32,431 and 32298 respectively. 9630 candidates were declared
551
qualified to take the main examination as per the decision of the Commission. In the
preliminary examination, elaborate arrangements were made for evaluation of answer
scripts at Ravenshaw College under the supervision of the Principal, who is a very senior
teacher with long experience. He was the Chief Co-ordination-cum Centre Supervisor
and was assisted by the senior members of the teaching staff who acted as Coordinators
and Deputy Coordinators. Most of the examiners had teaching experience of over ten
years and the Chief Examiner, more than 25 years. The answer scripts were examined by
the college teachers in units of seven to ten each under a Chief Examiner. Scrutinizers
were also appointed for each unit. In addition, Valuation Officers were engaged to
ensure error-free evaluation by re-checking answer scripts at random. The Commission
decided that candidates securing 30% marks in each subject namely English and M.I.L.
shall be allowed to appear in the main examination.
5. Some of the unsuccessful candidates represented that they had done very well in
the examination, but to their utter surprise, they were not declared successful. They
asked for re-evaluation and they were informed that there is no such procedure, but the
answer scripts could be re-checked. It has decided by the Commission that the
applications received till 30-06-1997 for re-checking would be disposed of within ten
days. 292 such requests were received. All those were re-checked and there was not a
single case where it was necessary to change the result published. The candidates were
informed accordingly.
6. Regarding the allegation of coding, it has been stated that coding was duly done
in the Commission’s office by dedicated, reliable and responsible persons under the
supervision of very senior officers of the Commission. Besides, no person associated
with coding was engaged in evaluation of answer scripts. Regarding erratic evaluation, it
has been stated that an examiner was required to evaluate only 20 answer scripts in five
hours under the direct supervision of Chief Examiners and they were asked to give an
undertaking that none of their close relations had taken the examination. The evaluations
are made Under 13 Chief Examiners in systematic and regular way. Regarding the
allegation that candidates, whose roll numbers have been quoted, did not appear in the
552
examination, but they were declared qualified it has been stated that the matter has been
verified with reference to the evaluated answer scripts, attendance sheets, etc., It was
found that both candidates had taken the examination in both the subjects, as certified by
the invigilators. As the allegation publication of results in an erroneous manner, it has
been stated that in the scheme of allocation of roll numbers, there was a large range of
numbers than candidates admitted to the examination. Therefore, several roll numbers
were not allotted to any candidate. That apart, out of more than 39000 candidates
admitted, about 7000 did not take the examination. The allegations that a packet
containing 500 answer scripts was lost has been denied. It has been stated that all answer
scripts are in safe custody of the Commission. Regarding the reservation policy, it has
been stated that qualifying marks were fixed at the lowest possible level of 30% keeping
in view the interest of the weaker sections of the society. It has also been stated that in
the list of successful candidates for reserved categories, namely Scheduled Castes and
Scheduled Tribes, 61 and 101 candidates respectively have been shown as qualified in the
preliminary examination. The allegation of favoritism has been denied. A chart showing
the percentage of successful candidates in the year 1991, 1992, 1993 and 1997 has been
indicated in the counter, which would show that percentage of success in 1997
examination was the highest in respect of subjects English and M.I.L.
7. The first point to be decided is whether holding of preliminary examination was
legal. In view of the number of candidates, we are of the opinion that the Commission
has got the power of short-listing. It is the settled position of law that short-listing is
permissible, which is also being done by the Union Public Service Commission.
Therefore, on this point, the Commission cannot be faulted.
8. Regarding entrusting the work of conducting the preliminary examination through
independent agency, we are of the opinion that the procedure adopted by the Commission
is absolutely correct. Coding was done in the office of the Commission under strict
supervision. Instead of sending the answer scripts to different examiners to be examined
at their residence, the Commission adopted the procedure of evaluation at one center
under the Chief Coordinator, Chief Examiners and Examiners with long teaching
553
experience. Ravenshaw College is a pioneer institution of the State. An undertaking has
also given by the Examiners and others that none of their relations were candidates in the
examination. Therefore, the procedure adopted by the Commission cannot be said to be
erroneous, illegal or arbitrary.
9. Regarding other allegations, we are satisfied from the counter affidavits that those
allegations have no merit. We may also bear in mind that the Commission is an
Constitutional body and this Court cannot sit in appeal against the procedure adopted by
it provided the same in not arbitrary, illegal or otherwise invalid.
10. We may state here that though answer scripts are confidential documents, non the
less, some were produced before another division of this Court in some other writ
petitions and the Bench was satisfied that there has been proper evaluation of answers
and marks secured have been reflected correctly on the top of the answer script.
11. The above being the position, the writ petitions have no merit and they are
accordingly dismissed. No costs.
***
554
IN THE HIGH COURT OF ORISSA, CUTTACK Original Jurisdiction Case No.610 of 1998
D.D. 27.7.1998 1998 (II) OLR - 502
THE HON’BLE MR.JUSTICE SUSANTA CHATTERJI
THE HON’BLE MR.JUSTICE D.M.PATNAIK Dr.Tophan Pati ... Petitioner Vs. State of Orissa & Others ... Opp. Parties
ORISSA MEDICAL EDUCATION RECRUITMENT RULES, 1979 – Rule 4
– Selection of Junior Teachers (Lecturer) in Psychiatry – Selection by Public Service Commission – No written test held - Selection made on interview and considering the merits, career etc. – Though for the selection the P.S.C. will take into consideration the four aspects of Rules for evaluation, yet there is no guideline as to on which aspect what mark should be given – If the P.S.C. with its own modality for years together has been following the procedure that in absence of any written examination career marking would be made and with this process the interview would take place for the other three aspects and the marks obtained in the interview would be added to the career mark, there is no infraction of any statutory guidelines or violation of any statute – If in the advertisement there was indication that in the absence of written examination career marking would be there by short listing the candidates, that does not mean that for the purpose of selection career mark would be overlooked or that there should be distribution of marks equally for the four aspects and in the absence thereof the selection in the instant case would be deemed to be vitiated – The Court examined the file of P.S.C. as well as other aspects and the petitioner was not selected in previous interview – The expert committee with its experience has made the selection, there is no ground to interfere in absence of any allegation as to mala fide or extraneous consideration. Cases referred: 1. AIR 1971 SC 2303 – A.Pariakaruppan v. State 2. AIR 1997 SC 2110 – Rajkumar v. Shakti 3. AIR 1994 SC 141 – Anza v. State 4. AIR 1994 SC 39 – A.P. State v. C.M.Ashok 5. AIR 1960 SC 971 – Vanguard v. Fraser 6. AIR 1988 SC 2031 – Asma v. Ishwar 7. AIR 1997 SC 628 – K.V.Muthu v. Angamuthu 8. AIR 1976 SC 1697 – State v. Chaturbhuj 9. AIR 1976 SC 1697 – State v. Chaturbhuj 10. AIR 1996 SC 2184 – Gopal v. State 11. AIR 1982 SC 121 – Chhaganlal v. Narandas 12. AIR 1985 SC 218 – M/s Amar v. State 13. AIR 1990 SC 781 – M/s Goodyear v. State
555
14. AIR 1989 SC 1194 – Municipal v. Thukral 15. 1997 (1) ATT (SC) 178 – Secy. V. Dr.Anita 16. AIR 1997 SC 2110 – Rajkumar v. Shakti
***
556
ORISSA HIGH COURT : CUTTACK ORIGINAL JURISDICTION CASE NO.14619 OF 1998
D.D. 23.6.2000
THE HON’BLE MR. JUSTICE P.K.MOHANTY AND
THE HON’BLE MR.JUSTICE CH.P.K.MISRA
Dr.Rajat Mohanty ... Petitioner Vs. Orissa Public Service Commission & Ors. ... Opp. Parties
Short-listing of candidates to be called for interview:
Orissa Medical Education Recruitment Rules, 1979 - The same principle
followed in the previous case has been followed in this case and the procedure adopted for short listing of candidates to be called for interview has been upheld.
Cases referred:
1. JT 1990 (2) S.C. 264 – Direct Recruit Class-II Engineering Officers Association & Ors. v. State of Maharashtra & Others.
2. 1997(1) ATT (S.C.) 178 – Secretary (Health) Department of Health & Family welfare and another v. Dr.Anita Puri & Others
3. 1998 (II) O.L.R. 502 - Dr.Tophan Pati v. State of Orissa 4. JT 1999 (7) S.C. 576 – Shri L.Chandrakishore Singh v. State of Manipur & Ors. 5. JT 1999 (8) S.C. 578 – Ajit Kumar Rath v. State of Orissa & Others
JUDGMENT
The petitioner calls in question the order of the State Administrative Tribunal,
dismissing his Original Application wherein he had challenged the selection of opp.
parties 2 and 4 to the post Junior Teacher (Lecturer) in Obstetrics and Gynecology in the
Medical Colleges of the State, pursuant to the advertisement No.7 of 1996-97 and non-
consideration of the petitioner’s case by the Orissa Public Service Commission,
hereinafter called as “O.P.S.C.”
2. The petitioner’s case in brief is that he was qualified and was eligible for selection
and appointment as Junior Teacher (Lecturer) in Obstetrics and Gynecology in terms of
the Orissa Medical Service (Recruitment) Rules, 1979 and the Advertisement No.7 of
557
1996-97 issued by the O.P.S.C. for the said posts. It is alleged that even though the
petitioner possessed the prescribed qualification and experience, the O.P.S.C. by adopting
an illegal method of short-listing in the process of selection in an arbitrary manner,
eliminated the eligible candidates like the petitioner at the threshold and thereby selected
ineligible candidates like opposite parties 2 and 4 in the first phase of selection.
According to the petitioner, the eligible qualification for selection for the post of Lecturer
was (a) one should be an Asst. Surgeon under the State Government, State Government
undertakings (on deputation as there is no post of Asst, Surgeon in the Government
undertakings (b) he should have at least one year experience as such and (c) he should
hold a P.G. Degree in the concerned discipline. The post of Assistant Surgeon is a cadre
post in Class-II of Orissa Medical and Health Services carrying a scale of Rs. 2,000-
3,500/-, which was subsequently revised to Rs.6,500-10,500/-, and the recruitment to
such post was to be made by the State Government under the 1941 Recruitment Rules.
The post of Lecturer is a cadre post in Class-II of the Orissa Medical Education Services
carrying a scale of Rs. 2,200-4,000/-, which was subsequently revised to Rs. 8,000-
13,500/- and the recruitment to such post is governed by the 1979 Recruitment Rules.
The petitioner claims that only in service Doctors having Post-Graduate Degree and one
year of experience were eligible to hold the post, since the scale attached to the post of
Lecturer is higher than that of the post of Assistant Surgeon.
3. According to the petitioner, a reading of Rule 4(4) of the 1979 Recruitment Rules
with sub-paragraph (i) of paragraph –1 of the advertisement, in case of non-availability
of Assistant Surgeons, the appointment can be made by direct recruitment, if necessary.
The petitioner was qualified and eligible also in the first phase of selection since he was
an Assistant Surgeon of the State Government with effect from 15-02-1991 and thus,
had an experience of more than one year as an Assistant Surgeon as on 31-08-1996 and
he possessed a Post Graduate Degree in Obstetrics and Gynecology from Sambalpur
University. But the opposite party No.1, O.P.S.C. illegally did not consider his case and
he was arbitrarily not called for the interview. On the other hand, even though opp.
Parties 2 and 4, who are appointed to the post of Assistant Surgeon only on 20-06-1996
and had possessed experience of only two months and 11 days, were considered and
558
appointed to the said post, for which he had challenged the selection before the learned
State Administrative Tribunal, but the Tribunal had on an erroneous consideration,
dismissed the case, and hence the present writ application.
4. The opp. Party No.1 has filed a comprehensive counter affidavit controverting the
assertions and the allegations made in the writ application. It is the case of the opp.
Parties that on the basis of the requisition and draft advertisement received from the
Government of Orissa in Health Department, the O.P.S.C. issued Advertisement No.7 of
1996-97 for filling up of 190 posts of Junior Teachers in different disciplines including 5
posts of Junior Teachers in the discipline of Obstetrics and Gynecology, out of which two
posts were reserved for Scheduled Caste and Scheduled Tribe and remaining 31 were
kept for unreserved category. The advertisement also contemplated that 1/3rd of the
vacancies in each of the cadres were reserved for women candidates and where adequate
number of eligible women candidates would not be available, the remaining vacancies
are to be filled up by male candidates.
Opp. Party No.1 has specifically asserted that in paragraph 9 (v) of the
Advertisement in question. It was stipulated that where the number of applications were
received in respect of that advertisement is large and it is not convenient for the
Commission for interviewing all those candidates, the Commission may restrict the
number of candidates for interview for reasonable limit by making preliminary selection,
either on the basis of the evaluation of their career or by conducting a preliminary written
tests. 104 candidates had applied for the discipline Obstetrics and Gynecology as against
the advertised vacancies of five, the Commission having found that neither. It is
convenient for necessary to interview all those candidates, in terms of paragraph 9 (v) of
the Advertisement, a preliminary selection was made to shot-list the candidates to be
called for the interview/viva voce list. The short-listing was done on the basis of
evaluation of the academic career of the candidates on the basis of the performance at the
H.S.C., H.S.S.C. (+2) and M.B.B.S .Examinations. The average of marks (worked out in
percentage terms) secured by the candidates was taken to determine their relative ranking
for the purpose of short-listing. This, according to the opp. party No.1, was done in
559
accordance with the established practice of the Commission for career assessment of the
candidates for different posts and services followed over a long period of time. On short-
listing of those candidates, only 18 candidates from different categories were called to the
viva voce test. Separate list of Scheduled Caste and Scheduled Tribe candidates was
prepared for being called to the interview in view of the reservation. It is asserted that the
last general women candidate, who was called to the interview had secured 65.850%,
whereas the petitioner secured 53.935% of marks. Between the petitioner and the last
general woman candidate called to the interview, there are 55 other candidates, who had
secured higher percentage of marks than the applicant. The interview was held on 8-1-
97, 9-1-97 and 29-1-97 and after completion of the recruitment process, the O.P.S.C.
submitted their recommendation to the State Government by their letter dated 29-1-1997.
5. With regard to the experience of opp. Party No.2 Dr. Subhara Ghosh and opp.
Party No.4 Dr. Kirtirekha Mohapatra, it has been asserted that they had more than one
year of experience as Assistant Surgeon and they had also furnished such certificate from
the Director of Health Services as required under the Rules. It is submitted that the posts
of Assistant Surgeon and that of Junior Lecturers are two separate and distinct cadres.
One is under the Director of Medical Education and Training whereas the other under the
Director of Health Services and the pay scales of both the posts are separate. A Junior
Lecturer is regulated by the U.G.C scale of pay and the Assistant Surgeon is paid a
normal Class-II Officer of the State Government, in as much as the recruitment to the
Junior Lecturer is by way of direct recruitment in terms of the Recruitment Rules and is
not a promotion from the post of Assistant Surgeon.
6. The main thrust of the argument of Sri Bijayananda Das, learned counsel for the
petitioner is that the action of opp. Party No.1 Orissa Public Service Commission in short
listing the candidates and the method of such short-listing was arbitrary, illegal and hit by
the provisions of Articles 16 and 309 of the Constitution of India, so far as it has
eliminated the eligible candidates like the petitioner at the threshold and that aided for
selection of ineligible candidates like opp. Parties 2 and 4 in the first phase of selection.
Secondly, opp. Parties 2 and 4 having experience of less than one year as Assistant
560
Surgeon, they lacked the prescribed experience of one year in terms of the Recruitment
Rules, 1979 and therefore were not eligible to be called to the interview and being
selected, but illegally not only they have been called to the interview, but they have also
been selected and appointed in the post and therefore their selection and appointment has
to be questioned the learned Counsel has submitted that the petitioner was qualified and
had the requisite qualification and as such, ought to have been called to the interview, but
the opp. Party No.1 by adopting an illegal method of short-listing, has deprived him from
selection and consequent appointment.
7. Now coming to the first contention of the learned counsel as to the legality of the
method of short-listing deployed by opp. Party No.1 in the process of selection, let us
consider the criteria of selection as stipulated in the Orissa Medical Education Service
(Recruitment) Rules, 1979 (hereinafter called as O.M.E.S.Rules, 1979. Rule 4 of the
O.M.E.S. Rules, 1979 may be quoted hereunder:
“4. Appointment of Lecturer- (1) Appointment of Junior teaching posts in the service shall be made by selection from amongst the Assistant Surgeons under the State Government or State Government undertakings with at least one year’s experience as such through the Public Service Commission which shall invite applications and process them: Provided that the recruitment may also be made from amongst the Lecturers for the Junior teacher posts, in any other speciality or higher speciality subject to the condition that seniority in the new speciality or higher speciality, as the case may be, shall be determined from the date of appointment in the new discipline in accordance with the placement given by the Commission and accepted by the Government. (2) No person shall be eligible to be appointed as a Lecturer unless he has acquired a Post-Graduate Degree in the concerned speciality or any other equivalent degree or qualification prescribed by the Council. (3) In selection of candidates, Commission shall give due regard to the candidate’s academic attainments, experience, aptitude and ability to teach. (4) If candidates with the prescribed qualifications are not available or appointment cannot be made in the manner prescribed in Sub-Rule (1), appointments may be made by direct recruitment through the Commission, if necessary, in relaxation of the prescribed qualifications.
561
(5) The Lecturers shall perform such duties as are specified in the schedule to these rules and any other duties as may be specified by Government from time to time by general or special order.”
8. In terms of the aforesaid Rules, the Public Service Commission by its
advertisement No.7 of 1996-97 invited applications in the prescribed form for filling up
the post of Lecturers in different faculties including Obstetrics and Gynecology. Clause 9
of the Advertisement in sub-clause (v) reads thus:
“9. Other conditions/Information/Instructions: (i) xx xx xx (ii) xx xx xx (iii) xx xx xx (iv) xx xx xx (v) Where the number of applications received in response to an advertisement is large with reference to the number of vacancies advertised and it may not be convenient for the Commission to interview all the candidates, the Commission may restrict the number of candidates for interview to a reasonable limit by making preliminary selection either on the basis of evaluation of their career or by conducting a preliminary written test.”
Thus, it is abundantly clear that the O.P.S.C. indicated in the advertisement itself that in
case of the number of applicants is large, with reference to the number of vacancy
advertised, the Commission may restrict the number of candidates for interview to a
reasonable limit by making preliminary selection either on the basis of evaluation of their
career or by conducting a preliminary written test.
9. Undisputedly, the O.P.S.C. advertised for five vacancies in the discipline of
Obstetrics and Gynecology, for which the petitioner had also applied and 104
applications were received. Out of these five vacancies, two posts were reserved for
Scheduled Caste and Scheduled Tribe candidates and three were unreserved. It is the
stand of the O.P.S.C. that in terms of Clause9 (v) of the advertisement, a preliminary
selection was made to short-list the candidates to be called for the interview/viva voce
562
test. The short-list was done on the basis of the evaluation of the academic career of a
candidate’s beginning from the stage of H.S.C., H.S.S.C. (+2) and M.B.B.S
examinations. An average of marks secured by the candidates were taken to determine
their relative ranking for the purpose of short-listing and this was done in accordance
with the established practice of the Commission for career assessment of the candidates
for different posts and services followed for a long period of time. It is asserted by the
O.P.S.C. that the last general (woman) candidates, who was called to the interview had
secured 65.850% of marks whereas the petitioner secured 54.935%. Between the
petitioner and the last general (woman) candidate called to the interview, there were 55
other candidates, who were secured higher percentage of the marks than the applicant and
therefore, the petitioner did not have a chance, even if two of the candidates namely opp.
parties 2 and 4 were eliminated from the process.
10. If the number of candidates for a post is large, the selecting authority or not
prohibited from short-listing the candidates by a proper procedure of eliminating the less
meritorious candidates. This question directly came up for consideration of this Court in
the case of Dr. Tophan Pati vs. State of Orissa, 1998 (II) O.L.R. 502. The very same
advertisement No.7 of 1996-97 issued by the O.P.S.C., which is the subject matter in the
present writ application, was under consideration with regard to the selection in the
faculty of psychiatry. This Court held that if the Public Service Commission with its own
modality for years together has been following the procedure that in absence of the
written examination, career marking would be made and with this process, the interview
would take place for the other three aspects and the marks obtained in the interview will
be added to the career mark, there is no infraction of any statutory guidelines or violation
of any statute. The Court took note of the decision in the case of Secretary (Health)
Department of Health and Family Welfare and another vs. Dr. Anita Puri and others
1997(1) ATT(S.C) 178 of the Apex Court, which held that the expert body like the Public
Service Commission is quite competent to assess the suitability and in absence of any
statutory criteria, it has any discretion evolving its mode of evaluation of merit and
selection of the candidate. The competence and merit of a candidate is adjudged not on
the basis of the qualification he possess but also taking into account the other necessary
563
factors like career of the candidate throughout his educational curriculum, experience in
the field in which the selection is going to be held; his aptitude for showing extra-
curricular activities, personalities and other germane factors which the expert body
evolves for assessing suitability are necessary to be assessed by the expert body. In that
view of the matter, the contention of the learned counsel with regard to the illegality
committed by the Public Service Commission in short-listing the candidates and the
method adopted for short-listing has to be rejected. If the Public Service Commission has
evolved a method of short-listing the candidates on the basis of the career and on the
assessment of the career, if it has been found that the petitioner is much below the person
called for the interview, such action cannot be faulted. The contention of the learned
counsel for the petitioner that the academic attainment of the candidate from the very
beginning to the date they filed the application for the post, ought to have been taken and
that the academic attainment till M.B.B.S. Degree only could not have been taken, cannot
be accepted. It must be borne in mind that at the Post Graduate Medical Examination, no
class or grade is assigned to a candidate and as such had the mark in the Post Graduate
been added, then it would have been equal for all the candidates there being no grading
like 1st, 2nd or 3rd class or any other classification thereof. In that view of the matter, we
do not find any illegality in the action of the O.P.S.C. In short-listing the candidates on
the basis of the academic attainment.
11. So far as the contention of the learned counsel for the petitioner with regard to
ineligibility of the opp. parties 2 and 4 on the ground of flack of service experience of one
year in terms of the Recruitment Rules. It is not in dispute that a candidate in order to be
eligible for consideration to the post of a Lecturer should have at least one year of
experience as on Assistant Surgeon. It is the submission of the learned counsel that the
opp. party No.2 Dr. Subhra Ghosh was appointed as an Assistant Surgeon on ad hoc basis
and posted to a P.H.C. on 16-11-1994 and there was technical breaks of one day between
the spells of appointment and she was appointed on regular basis on 20-06-1996 on the
recommendation of P.S.C. and therefore on the date of receipt of the application i.e., on
30-04-1996 she did not have experience of one year as Assistant Surgeon. Similarly, Dr.
Kirthirekha Mohapatra (opp.party No.4) was Assistant Surgeon on ad - hoc basis from
564
30-12-1993 to 2-07-1996 against a post of L.T.R.M.O. in the District Head quarters
Hospital, Bhawanipatna and regularly appointed on the recommendation of the P.S.C on
2-7-1996 and thus she could not have the requisite experience by 31-08-1996 from the
date she was appointed regularly on the recommendation of the P.S.C. The learned
counsel emphatically submits that the appointment of ad hoc Surgeon is unknown to the
1941 Orissa Medical Service Recruitment Rules of the State Government for recruitment
of Assistant Surgeon and therefore since the opp. Parties 2 and 4 were admittedly held ad
hoc appointments which are fortuitous and stop gap appointment dehorns the
corresponding 1941 Orissa Medical Service Recruitment Rules of the State Government,
the period of such appointment cannot be reckoned towards their eligibility of one year
appointment as Assistant Surgeon as required under Rule 4 (1) of 1979 Recruitment
Rules. The learned Tribunal while considering this aspect of the matter, took note of the
Orissa Public Service Commission (Limitation and Function) Regulations, which
contemplates an appointment to any such post without consultation with the Public
Service Commission not exceeding one year and therefore rejected the contention of the
petitioner that such appointment should not be considered for the purpose of experience
of one year as contemplated under the Rules. The Tribunal has rightly rejected such a
plea. It is well-established that pending selection by the Public Service Commission, the
State Government is not precluded or prohibited from making any appointment to a post
on ad-hoc basis and a person appointed on ad-hoc basis also functions in the post as a
regularly appointed Assistant Surgeons and once the appointment is regularized by the
recommendation of the Public Service Commission, the period served on ad-hoc basis
has to be reckoned for the purpose of experience. The Tribunal has also taken note of the
decision of the Government in Health and Family Welfare Department in Resolution
dated 9-7-1992, wherein the break periods are condoned in respect of the ad-hoc
employees. A reference may be made to the case in Ajit Kumar rath Vs. State of Orissa
and others, JT 1999(8) S.C.578. In that case, the Hon’ble Apex Court, following the
Constitutional bench decision in Direct Recruit Class-II Engineering Officers Association
and others vs. State of Maharashtra and others, JT 1990(2) S.C.264 held that if the initial
appointment is not made by following the procedure laid down by Rules, but the
appointee is continued in the post uninterruptedly till the regularization of the services in
565
accordance with the Rules, the period of officiating services will be counted for the
purpose of seniority and experience. In Shri L.Chandrakishore Singh Vs. State of
Manipur and others JT 1999 (7) S.C. 576, the Apex Court held that the seniority itself
based upon length of service is an acquired right of an employee which entitles him to be
considered for further promotion. The length of service may be on the basis of the
difference of continuous officiating or on the basis of difference of substantive
appointment in the cadre or grade or service which may be reckoned from the date of
confirmation on the basis of regularization. Even in case of probation or officiating
appointment, which are followed by a confirmation, unless a contrary rule is shown, the
services rendered on officiating appointment or on probation cannot be ignored for
recruitment and for determining his place in the seniority list, where first appointment is
made by not following the prescribed procedure and such appointee is approved later on,
the approval would mean his confirmation by the authority shall relate back to the date on
which his appointment was made and the entire service will have to be computed in
reckoning the seniority according to the length of continuous officiator. It is the admitted
position that opp. party No.2 Dr. Subhra Ghosh was appointed as an Assistant Surgeon
on ad-hoc basis and posted to P.H.C. on 16-11-1994 and she continued on ad-hoc basis
with technical breaks of one day between the spells of appointments and was appointed
on regular basis on the recommendation of the Public Service Commission on 20-06-
1996. Dr. Kirtirekha Mohapatra (O.P.No.4) was appointed as an Assistant Surgeon an
ad-hoc basis on 30-12-1993 in the District Headquarters Hospital, Bhawanipatna and
regularly appointed on recommendation of the Public Service Commission on 2-7-1996
and therefore, there is no legal impediment in counting the period of ad-hoc services for
the purpose of experience in terms of Rule 4(1) of the 1979 Recruitment Rules and
therefore the view taken by the Tribunal that the said opposite parties had the requisite
experience of one year as an Assistant Surgeon to be considered for being appointed as
Junior Teacher (Lecturer) under the Orissa Medical Education Service (Recruitment)
Rules, 1979 cannot be faulted.
12. Coming to the case of the petitioner, it is not disputed that he had the requisite
qualification and experience in terms of Advertisement No.7 of 1996-97 and the 1979
566
Recruitment Rules more specifically, Rule 4(1). But the question is whether he has been
rightly denied the right of facing the interview/viva voce by the Public Service
Commission. Nothing has been brought on record to show that on the basis of the career
assessment mark, the petitioner obtained or would have obtained more than 54.935% of
marks nor it has been shown that the last general (woman) candidate, who was called to
the interview had secured less than 65.850% of marks and there were 55 other candidate,
who had secured higher percentage of marks than the applicant at the career assessment
marks by the P.S.C. If the persons having secured 65.850% of marks on the career
assessment were called to the interview and the petitioner’s name did not find place in the
short-list so prepared by the Commission, action of the Commission cannot be faulted for
having not called the petitioner to the interview. A contention has been made that the
recruitment to the post of Junior Lecturer is a promotion from the rank of Assistant
Surgeon and as such, the petitioner ought to have been considered in that line. At the
outset, the contention has to be rejected. The appointments to the post of Lecturers are
made under the Orissa Medical Education Service (Recruitment) Rules, 1979 and are
regulated by the U.G.C. Scales of pay as applicable to the Lecturers of general colleges,
where as an Assistant Surgeon is allowed pay scale of normal State Government Class-II
Officers. The recruitment to the Junior Lecturer is a direct recruitment by selection and
therefore cannot be construed as a promotional post from the rank of Assistant Surgeon in
terms of the 1979 Recruitment Rules. At this stage, a reference may be made to Rule
4(1) of the 1979 Rules, which has been, extensively quoted in the earlier paragraph. The
appointment of Lecturer (Junior Teacher) post in the service shall be made by selection
from amongst the Assistant Surgeon under the State Government undertakings with at
least one year’s experience as such through the Public Service Commission, which shall
invite application and process them. Under Sub-Rule (4), if candidates with prescribed
qualification are not available or appointment cannot be made in the manner in Sub-Rule
(1), the appointment may be made by direct recruitment through Commission, if
necessary by relaxation of the prescribed qualification. Since the candidates with
prescribed qualification are available in plenty, there is no occasion for resorting to the
recruitment under Sub-Rule (4). Thus, the contention of the learned counsel is
misconceived and has to be rejected
567
13. In that view of the matter, we don not find any merit in the writ application to
interfere with the impugned order of the learned Tribunal. Accordingly, the merit
application is dismissed, but in the circumstances, there shall be no order as to cost.
***
568
(2004) 8 Supreme Court Cases 599 CIVIL APPEAL NO. 8039/2003 & CONNECTED CASES
D.D. 17.09.2004
THE HON’BLE MR. JUSTICE Y.K.SABHARWAL AND
THE HON’BLE MR. JUSTICE D.M.DHARMADHIKARI Satchidananda Misra ... Appellant Vs. State of Orissa & Ors. ... Respondents [As this case is reported in the above journal full text of the judgment is not given but only the gist of the case and the law laid down by the Hon’ble Supreme Court are given as under] A. Service Law – Orissa Medical Education Service (Appointment of Junior Teachers Validation) Act, 1993 (11 of 1993) – S.3(1) – Provision in, deeming Junior Teachers appointed during the specified period to have been validly and regularly appointed – Validity – Such appointments made during the operation of 1979 Rules through Selection Board constituted not under the said Rules but under the repealed Rules of 1973 , held, suffered from an illegality striking at the root of the appointment – Hence, attempt to validate such illegal appointments by S.3(1) held, beyond the competence of the legislature and violative of Arts. 14 and 16 – Plea that 1973 Rules and not 1979 Rules were attracted in the present case, held, could not be raised for the first time before the Supreme Court – However, on facts, the plea found to be incorrect – Moreover, deeming of legal consequence of regularisation of the appointments without deeming the facts either of repealing of the 1979 Rules and making the 1973 Rules operative or changing the basis viz., definition of Selection Board, held, impermissible – Further held, although in special circumstances of a case Supreme Court has ample powers to direct regularisation of illegal appointments in the interest of justice, the present case did not fall in that category – Orissa Medical Education Service (Recruitment) Rules, 1979, Rr.3(f) and 4(2) – Orissa Medical Health Services (Recruitment and Promotion to the Teaching Posts in the Medical Colleges ) Rules, 1973, R.3(f) B. Statute Law – Validating Act Object of, and provisions required to be made in, stated – On facts, Validation Act (Orissa Act 11 of 1993) in its attempt to validate illegal appointments offended Arts. 14 and 16 and was beyond competence of the State legislature On 24-9-1973, the Orissa Medical Health Services (Recruitment and Promotion to the Teaching Posts in the Medical Colleges) Rules 1973 (for short “the 1973 Rules”) were framed under the proviso to Article 309. These Rules provided for making of appointments through a Selection Board in consultation with the Orissa Public Service Commission (for short ”OPSC”). Rule 3(f) thereof defined “Selection Board”. On 13-8-
569
1979, the 1973 Rules were repealed by the Orissa Medical Education Service (Recruitment) Rules, 1979 framed under the proviso to Article 309. Rule 4(2) thereof prescribed the qualifications for appointment and Rule 3(f) provided for constitution of Selection Board with a member of OPSC as its Chairman. On 20-9-1979, by an advertisement, applications were invited for appointment as Junior Teachers in medical colleges. The Selection Board as per the 1979 Rules was, however, never constituted. On 27-1-1980, the Chief Minister passed orders to fill up those posts by ad hoc appointments. Accordingly, the Selection Board appointed on 3-8-1979 under the repealed Rules of 1973 was allowed to make the selections. On 4-8-1980, the selected candidates were appointed as Junior Teachers. Some appointments were also made on 11-11-1980. On 9-2-1982 the case of such appointees were referred to OPSC, which in turn refused to approve the same. This led to enactment of the Orissa Medical Education Service (Appointment of Junior Teachers Validation) Act, 1993 (for short “the Validating Act”) by which all the said appointees were deemed to have been validly and regularly appointed in the service from the date of their appointment as such. The State Administrative Tribunal held the Validating Act to be unconstitutional and the High Court upheld that decision. The appellant herein then filed the present appeal by special leave. The question arising before the Supreme Court was limited to the validity of Section 3(1) of the Validating Act. The appellant contended, inter alia, that the 1973 Rules were attracted in the present case and not the 1979 Rules. Relying on case-law, the appellant further contended that the illegal appointees could also be treated to be regularly appointed. Dismissing the appeals, the Supreme Court Held: Admittedly the provisions of the 1979 Rules were not followed and the appointments made in 1980 were after the said Rules had been enforced. The Selection Board comprising of a member of OPSC and its Chairman was never constituted, and the selections were sought to be made by the Board constituted under the 1973 Rules. This was an illegality which struck at the root of the appointment and, therefore, it was beyond the scope of the legislature to validate such illegal appointments as any such attempt would violate Articles 14 and 16. (Para 9) The contention that the 1973 Rules and not the 1979 Rules were attracted could not be permitted to be raised as it was not urged earlier and was sought to be put forth for the first time during the course of hearing before the Supreme Court. Further, the advertisement was issued after the 1979 Rules had been enforced. (Para 16)
***
570
RAJASTHAN PUBLIC SERVICE
COMMISSION
571
AIR 2003 SUPREME COURT 3476 CIVIL APPEALS NOS.3615-3618 OF 2992 WITH C.A.NO.3614 OF 2002
D.D. 1.4.2003 [As this case is reported in the above journal full text of the judgment is not given but only the gist of the case and the law laid down by the Supreme court is given as under.)
THE HON’BLE MR. JUSTICE SHIVARAJ V. PATIL
AND THE HON’BLE MR. JUSTICE ARIJIT PASAYAT
Rajasthan Public Service Commission & Anr. ... Appellants Vs. Harish Kumar Purohit & Ors. ... Respondents
(A) Precedents – Dispute regarding appointments to posts of Munsiff Magistrate – Dismissal of writ petition by Division Bench – Subsequent writ petition containing identical prayers filed before another Division Bench of same High Court – Earlier decision of Division Bench brought to notice of subsequent Division Bench – Subsequent Division Bench taking diametrically opposite view without even referring to decision of earlier Bench and not even indicating reasons as to why earlier decision was not followed – Not proper – Earlier decision of Division Bench would be binding on Bench of co-ordinate strength – In case of difference of opinion only course open to it is to refer matter to larger Bench. C.W.Nos.4622, 4673, 4674, 4675 of 2001, D/- 20-12-2001 (Raj), reversed.
(Para 12) (B) Constitution of India, Arts. 16, 26 – Appointment – To posts of Munsiff Magistrate – Non-availability of candidates from reserved category – Writ petition seeking directions for filling up those posts from general category - High Court directing to call proportionate number of candidates for interview by treating vacancies in reserved category to be vacancies in general category – On same breath it permitting Commission to carry forward vacancies in reserved category – Amounting to contradictory directions – What useful purpose would be served by adopting such dual procedure, not clear – Order liable to be set aside (Paras 6, 10, 11) (C) Constitution of India, Art. 133 – Appeal – Intervention – Permissibility –appeal against order of High Court given in writ petition – Dispute regarding appointment to posts of Munsiff Magistrate – Applicants seeking permission to interfere on ground that they belonged to OBC and woman category neither had approached the High Court nor were amongst candidates called for interview – Application liable to be rejected. (Para 9)
***
572
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. CIVIL WRIT PETITION NO.5693 OF 2003
D.D. 7.10.2003
HON’BLE MR. JUSTICE RAJESH BALIA AND
HON’BLE MR. JUSTICE SUNIL KUMAR GARG Dashrath Singh ... Petitioner Vs. The Union Public Service Commission & Anr. ... Respondents
Re-scheduling of examination dates fixed by UPSC & other PSCs:
The petitioner wants to alter and reschedule the dates either of U.P.S.C. and R.P.S.C. fixed from 12.10.2003 – The High Court has rejected the writ petition.
Held:
That both Public Service Commissions are independent autonomous bodies and are entitled to determine their own calendar of various examinations that are conducted by them – It is further held that to hold that no such two examinations in which candidates on all India basis are entitled to appear be held on same date is to deny the independent functioning of different autonomous bodies.
JUDGMENT
Having heard learned counsel for the petitioner, we see no merit in this public
interest litigation. The petitioner wants to alter and reschedule the dates either of U.P.S.C.
or R.P.S.C. to make it convenient for candidates to take both the examinations viz.
R.A.S. Exam. 2003 to be conducted by RPSC and Central Police Forces (Asst. Commdt.)
Examination, 2003 by U.P.S.C. The examinations are to commence from 12.10.2003.
Undoubtedly, the petitioner may be in dilemma to make up his mind. However, it
is important to bear in mind that both the Public Service Commissions are independent
autonomous bodies and are entitled to determine their own calendar of various
examinations that are conducted by them. In both the examinations, the candidates from
all over the country are eligible to participate depending upon the option of the
candidates. The dates are already notified in advance for holding examinations. Large
573
number of candidates are involved who too must have made their arrangements to take
examinations at one place or another. Such dates cannot be altered to detriment of large
number of people who have accordingly chartered out there programmed for taking those
examinations. Every candidate has a choice to chose his priority and appear in the
examination which may be held at one time.
Public Service Commissions of the different State and Union Public Service, for
that matter, like Universities are not required to under any objections to keep calendar of
all other such bodies holding examinations for offering employment. Offering of
opportunities by each one of them is open to all. It is for the candidates to opt, which he
wants to avail. The calendar of dates fixed by different agencies are bound to clash some
time.
In our opinion, it is not just and fair demand on different Public Service
Commissions to make it imperative for them to fix programmed of various examinations
to be held by them in consultation with all other state Public Service Commission and not
to hold examinations at one and same time in the infructuate the whole process for
selection of candidates which has been set in motion and delay the recruitment to the
detriment of all concerned including proper administration.
In this case the competing dates are fixed by UPSC and RPSC. In given case
when applications are invited on all India basis by State Public Service Commission,
same situation may arise in calendar of examinations fixed by different State Public
Service Commissions.
To hold that no such two examinations in which candidates on all India basis are
entitled to appear be held on same date is to deny the independent functioning of different
autonomous bodies.
The petition is rejected.
***
574
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CIVIL WRIT EPTITION NO.2196/2003
D.D. 30.10.2003
HON’BLE MR. JUSTICE H.R. PANWAR Braham Dutt Purohit ... Petitioner Vs. State of Rajasthan & Ors. ... Respondents Age Relaxation: Rajasthan Educational Service Rules 1970 – Petitioner seeks instruction to the respondents to consider his case for appointment to the post of Lecturer in Political Science for vacancies of the years 1997-1998 and 1998-1999 by relaxing the age limit - The petitioner contended that he should have been given relaxation in age for the period during which no recruitment took place – The High Court dismissed the Writ Petition. Held: That when vacancies should be determined and requisition for filling up those vacancies are to be sent to the Commission falls exclusively within the domain of the State Government. Further, it is also within the domain of the State Government to decide in which category of service the relaxation in age should be given. The Courts cannot issue directions in such matters until and unless there is violation of some provision of the Rules.
JUDGMENT
By the instant writ petition, petitioner seeks direction to the respondents to
consider his case for appointment on the post of Lecturer (School Education) in Political
Science for the vacancies of the year 1997-98 and 1998-99 by relaxing the age limit.
Petitioner is working as teacher Grade III. He holds the requisite qualification for
appointment on the post of School Lecturer in Political Science. In pursuance of the
advertisement Annx.1 dated 8-5-2001, he applied for the post of School Lecturer in
Political Science but his candidature has been rejected on the ground that by that time he
became over aged. Hence this writ petition.
575
The main thrust of argument advanced by the learned counsel for the petitioner is
that, he should have been given relaxation in the age for the period during which no
recruitment took place as is being done in the case of R.A.S. and allied examinations.
I have heard learned counsel for the parties and perused the record.
The petitioner is writing as teacher Grade III and his services are governed by the
Rajasthan Educational Subordinate Service Rules, 1971 (for short, “the Rules, 1971”).
Various post of School Lecturer comes under the Rajasthan Educational Service Rules,
1970 (for short “the Rules 1970”).
There is a provision under sub-rule (8) of rule 10 of the Rules, 1970 for relaxing
the age for the period during which no recruitment took place but no such provision is
under the Rules, 1971. More so, there is no such provision under the Rules, 1970 that
year-wise vacancies shall be determined for the post of School Lecturers and
advertisement are issued whenever the requisition is made by the State Government after
determination of the vacancies.
When vacancies should be determined and requisition for filling-up those
vacancies are to be sent to the RPSC falls exclusively within the domain of the State
Government. Further, it is also within the domain of the State Government to decide in
which category of service the relaxation in age should be given. The Courts cannot issue
directions in such matters until and unless there is violation of some provision of the
Rules. In this view of the matter, in absence of relevant Rules, the petitioner cannot claim
age relaxation at per with other category of posts.
Consequently, I do not find any merit in this writ petition and it is accordingly
dismissed. There shall be no order as to costs. Stay petition stands dismissed.
***
576
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B.C. WRIT PETITION NO.830/2004
D.D. 16.3.2004
HON’BLE MR. N.P.GUPTA,J Himanshu Kachhwaha & Anr. ... Petitioners Vs. Rajasthan P.S.C. ... Respondent Reservation for P.H. Category: Rule 15 of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules 1999 – The number of candidates to be admitted to the Main Examination is 15 times the total approximate number of vacancies (categorywise) – Two petitioners belonging to GM/P.H. Category did not figure in the list of candidates eligible to appear for the Main Examination – They contended that 9 posts reserved for P.H. under different categories only 47 P.H. candidates were declared eligible to appear for the Main Examination as against 135 P.H. candidates in the ratio of 1:15 – The High Court dismissed the writ petition. Held: Preliminary Examination is only an examination for short listing of candidates and at this stage candidate belonging to P.H. cannot ask for declaration of result in the ratio of 1:15 by treating them as persons belonging to separate category like SC, ST and OBC etc., so as to entitle them to claim declaration of 15 times the number of vacancies as successful candidates eligible to appear for the main examination. Case referred: 1992 Suppl.(3) SCC 215 – Indra Sawhney v. Union of India
JUDGMENT
In Writ No.384/04 on 4.2.2004, notice to show cause had been issued returnable
within one week, thereafter, on 23.2.2004, service of respondent no. 1. being the State,
was dispensed with, as the effected party, being RPSC., the respondent no. 2, was already
served, and the matter was ordered to be put up for admission on 3rd of March 2004.
That day, writ no. 830/04, was also listed, and that matter was not taken up on that day,
as the counsel for the respondent in writ no. 364 wanted to file reply, without any express
order being passed in writ no. 830, that file was simply passed over. However, the reply
had been filed therein, by the respondent No. 2, on 5.3.04, and thereupon the matter was
577
taken up today. In writ no. 830/04, it was listed on 24.2.2004, on which date, it was
ordered to be put up before appropriate bench on 25.2.2004, and the case was listed on
3.3.04, on which date, as noticed above the writ no. 364 was also listed. However, it was
understood, that in this case also, Mr. Joshi will appear and file reply. On 9.3.2004, Mr.
Joshi appeared in writ no. 830/04 also, and filed reply, as such, both the writ petitions at
the request of learned counsel for the effected parties, were heard.
The facts of the case are, that an advertisement dated, 6-4-03, was published by
the R P S C., inviting applications is for examinations for selection to various State and
Subordinate Services. The total no of vacancies was shown to be 493. In this
advertisement being Annexure 3, in both the writs, the break up of vacancies was given
as earmarked for General, within that for males and females. Then the other head given
was reserved posts, and in this reserved category also, there were 6 categories mentioned,
being SC(MF), ST(MF),OBC(MF), Physically handicapped Non Gazetted Officers and
Departmental Employees the petitioners, in both the writ petition, claimed to be
physically handicapped candidates. According to the petitioners, they applied in
response to the advertisement, and appeared in the preliminary examinations held on
12.10.2003. Result of this examination was declared.
It is from this point, that the controversy arises, in as much as, by this results, the
roll nos. of those candidates were published. Who are found eligible for appearing in the
main examination, and none of the two petitioners have been found to be eligible there in.
The grievance of the petitioner is, that according to the rule 15 of the Rajasthan State and
Subordinate Service (Direct Recruitment by Combined Competitive Examination), Rules
1999, the number of candidates, to be admitted to the main examination, is required to be
15 times the total approximate number of vacancies (category-wise), to be filled in the
year in the various services, and posts Precisely on this basis, it is contended that since in
Annexure 1, the number of vacancies have been advertised category-wise, and therein, 9
vacancies were shown to be reserved for physically handicapped persons, 15 times
thereof , being 135 physically handicapped candidates should have been declared eligible
to appear in the main examination, rather the submission is, that instead of the results, as
578
declared, the category-wise result should have been declared, and if the results were to be
declared accordingly, the petitioners would have found place in the eligibility to appear in
the main examination. Not doing so, is violative of the provisions of Rule 15, so also
amounts to, their being discriminated against, by making unequal to compete as equals,
and thus, the action is violative of the provisions of Article 14 and 16 of the Constitution
of India. Inter-alias on this basis, it is prayed, that the respondent may be directed to
reconsider the matter, and declare the result of RAS, Preliminary Examination 2003,
category wise, separately for physically handicapped candidates in the ratio 1:15, and in
case, the petitioners name appear in the list of successful candidates, then to call the
petitioners to appear in the main examination, with all consequential directions.
In the reply, it is contended, that the question, as to whether physically
handicapped persons constitute a separate category, stands concluded by the judgement
of Hon’ble the Supreme Court, in Indra Sawhney Vs. Union of India, reported in 1992
Suppl.(3)SCC 215[1992(6)JT 273], wherein it has been held, that the reservation in
favour of Scheduled Castes, Scheduled Tribes, and other Backward Classes under Article
16(4) may be called ‘vertical reservation’ whereas, the reservations in favour of
Physically Handicapped, under Article 16(1), can be referred to as ‘horizontal
reservations’. Horizontal reservations cut across the vertical reservations, what is called
inter-locking reservations. To be more precise, suppose 3% of vacancies are reserved in
favour of physically handicapped persons, this would be a reservation relatable to Article
16(1), and the person selected in this quota will be placed in the appropriate category, to
which he belongs i.e., SC ST or General, by making necessary adjustments. Then it is
pleaded, that relying upon this judgment, this court, in Bhuvaneshwar singh Chauhan
Vs.State of Rajasthan & Ors. (SB Civil writ Petition No.4080/2000 decided on
16.9.2002), has reiterated the same principle, and it was held, that the law does not
permit, that there should be a separate category for physically handicapped persons, for
giving reservations to them. Thus, according to the respondents, the issue sought to be
raised in this writ petition, is no more res integra, and the writ is required to be dismissed.
It was then pleaded, that the petitioner could not secure the cut off marks for the category,
to which he belongs (both the petitioners hear claim to be of General Category), they
579
have not been declared successful, in the preliminary examination. According to the
respondents, physically handicapped persons do not fall in the separate category, as
envisaged under rule 15 of the Rules, and thus, no error has been committed by the
Commission, nor can its action be said to be arbitrary or discriminatory. It was also
pleaded, that the preliminary examinations are held, for short-listing the candidates in the
4-categories, and the benefit of reservation is given to the physically handicapped
persons, after declaration of the result of main examination, and interview. It was also
pleaded, that neither the Disabilities (Equal opportunities, protection of rights and full
participation) Act, 1995, nor the rules framed there under, being the Rajasthan
Handicapped Persons (Physically disabled persons) Rules, 2000, make any provision for
fixing separate cut off marks, in the preliminary examination, for the physically
handicapped persons. It was also pointed out, that in the preliminary examination, in all,
47 physically handicapped persons have been declared successful in the respective 4
categories, and the benefit of reservation will be given to the physically handicapped
persons, only after final merit list is prepared. It was also explained, that like
handicapped persons reservation has been made for non Gazetted employees, and
departmental employees, but then they do not constitute independent categories, so as to
entitle them to claim declaration of eligibility of candidates in the ratio 1:15 in that
category. Thus it was prayed that the writ petition be dismissed.
Arguing the writ petition, the same submissions were reiterated. However learned
counsel for the petitioner placed reliance on Para 9 of the judgment of Hon’ble Supreme
Court in Govt. of Andhra Pradesh Vs P.B. Vijayakumar and others, reported in AIR 1995
SC. 1618. Learned Counsel for the respondent, on the other hand relied upon the
judgment Indra Sawhney’s case (Supra). Bhuvaneshwar Singh’s case (Supra), Chattar
Singh & Ors. Vs State of Rajasthan & Ors. reported in 1996(11)SEC 742, and
Dharamveer Tholia & Ors V/s State of Rajasthan & Anr., reported in 2000(3) WIC
(Raj.,) 399. Learned Counsel for the petitioner in rejoinder, relied upon paras 856,857
and 858 of Indra Sawhney’s case.
I have considered the submissions and have gone through the judgments.
580
Before proceeding to examine the controversy, I may gainfully quote the
provisions of Rule 15 and 17, which provide for the scheme of examination, and making
of the recommendations of the Commission, which reads as under:
“15. Scheme of Examination, personality and viva voce Test.- The Competitive Examination shall be conducted by the Commission in two stages i.e., Preliminary Examination and main Examination as per the scheme specific in Schedule III. The mark obtained in the Preliminary examination by the Candidates, are declared qualified for admission to the Main Examination on will not be counted for determining their final order of merit. The number of candidates to the main examination will be 15 times the total approximate number of vacancies (Category wise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for lower range will be admitted to the main Examination.
Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission their discretion shall summoned by them for an interview. The Commission shall award marks to each candidate interviewed by them having regard to their character, personality, address, physique and knowledge of Rajasthani Culture. However, for selection to the Rajasthan Police Service Candidates having ‘C’ Certificated of N.C.C. will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidate.
Provided that the Commission, on intimation being received from the Government before declaration being result of the Preliminary Examination may increase or decrease the no of vacancies advertised.
17. Recommendation of the Commission: - (1) The Commission shall prepare for each service, a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate mark finally awarded to each candidate. If two or more such candidates obtain equal marks in aggregate the Commission shall arrange their names in the order of merit on the basis of their general suitability for the service:
Provided that the candidate(s) belonging to other Backward Classes/ Scheduled Castes/Scheduled Tribes, who get placement in the merit list as a result of special concessions given to them in terms of “age” and “fees” or such other concession granted by the Government shall be counted against the reserved vacancies determined for the candidates belonging to the other
581
Backward Classes/ Scheduled Castes/ Scheduled Tribes irrespective of the marks obtained by them.
(2) The Commission, while giving weight age to the preferences for
the posts in the different services expressed by a candidate in her application, may recommend him her for appointment to any post in any such service or which it considers him suitable.
(3) The list compiled under this rule shall be immediately sent to the
Government and also be published for general information.”
A look at these two provisions make it clear, that in the process of selection,
actually the process of elimination take place, the first step of elimination is of short
listing, by holding a preliminary examination as mentioned in rule 15, and thereafter, the
successful candidates, up to the specified limit, are eligible to appear in the main
examination, and out of the candidates, who pass in the examination i.e., obtain minimum
qualifying marks, are to be summoned for interview, wherein also marks, are to be
awarded, having regard to their character, personality, address, physique and knowledge
of Rajasthani Culture and the total of the marks obtained in interview, and the main
examination, makes the basis for preparation of merit list for the purpose of Rule 17.
Now taking up the various judgments of Hon’ble the Supreme Court, and of this
court. P.B. Vijayakumar’s case, was a case, dealing with the question of validity of Rule
22-A (2) of the Andhra Pradesh State and Subordinate Service-Rules, where-under it was
pointed that in the matter of direct recruitment to the posts for which men and women are
equally suited, other things being equal, preference shall be given to women, and they
will be selected to an extent of at least 30% of the post in each category of O.C., B.C.,
S.C, and S.T. quota. Hon’ble the Supreme Court considered by validity of the provision
and upheld the same, and in that process, in Para 9 it was observed as under: -
“Reservation normally implies a separate quota, which is reserved for a special category of persons. Within the category appointments to the reserved posts may be made in the order of the merit. Nevertheless, the category for whose benefit a reservation is provided. Is not required to compete on equal terms with the open category. Their selection and appointment to reserved posts in independently on their inter se merit and not as compared with the merit of candidates in the open category. The very purpose of reservation is to protect this weak category against competition from the open category candidates.”
582
Then Hon’ble the Supreme Court quoted the Para 836 of Indra Sawhney’s case.
In Indra Sawhney’s case, in Para’s 856, 857 and 858, as relied upon by the
learned counsel for the petitioner, what has been held by Hon’ble the Supreme Court is,
that the reservation necessarily means appointment of less meritorious persons, and that
the small difference that may be allowed at the stage of initial recruitment is bound to
disappear in course of time, these members too will compete with and improve their
efficiency along with others. Thus, neither the judgment in P.B. Vijayakumar, nor these
three Para of Indra Sawhney’s case lay down the requirement, of declaring the result of
Preliminary Examination by treating the physically handicapped persons to be a separate
category, like SC, ST, OBC, etc., so, as to entitle the petitioners to claim declaration of
15 times the number of vacancies, as successful candidates eligible to appear in the main
examination.
On the other hand, a look at Para 832 of the judgement in Indra Sawhney’s case
clearly holds it otherwise, by holding this reservation to be horizontal, and to be inter-
locking reservation, and also by giving special example. I may gainfully quote Para 832
of Indra Sawhney’s case, which is as under: -
“We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes make under Article 16 (4). A little clarification is in order at this juncture all reservations are not of the same nature. There are two types of reservations. Which may for the sake of convenience be referred to as ‘vertical reservations’ and ‘horizontal reservations’. The reservations in favour of Schedule Caste, Scheduled Tribes and other backward classes (under Article 16 (4) may be called vertical reservation whereas reservations in favour of physically handicapped (under clause (1) of Article 16 can be referred to as horizontal reservation. Horizontal reservations cut across the vertical reservations- what is called inter-locking reservations. To be more precise suppose 3% of the vacancies are reserved in favour of physically handicapped persons this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C category he will be placed in that quota by making necessary adjustments, similarly, if he belongs to open competition (O.C) category, he will the placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the
583
same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure”.
Dharamveer Tholia’s case need not detain me much because it appears from Para
53 of the judgement, that during pendency of the matter before this Court. Hon’ble the
Supreme Court passed the interim Order staying declaration of the result of the main
examination. Likewise as appears from Para 48 of the judgement, that the Hon’ble
Division Bench also held, that the public interest litigation filed only on 24-07-2000, to
challenge the validity of the rule after declaring the result, and after the timetable for the
examination had been issued is not entertainable as at this belated stage. Then in Chattar
Singh’s a case it was held, that separate lists are required to be published by the
Commission in respect of the candidates in the respective categories, so as to make up
number of candidates 15 times the notified or anticipated posts/vacancies. But then the
question considered was on the anvil of requirement of providing lesser cut off marks for
OBC category, and the categories being considered in that judgement, were General SC,
ST and OBC. Therefore, that judgement is also no authority for the proposition under
consideration before me either ways.
However, Bhuvaneshwar Singh’s case is a direct judgement on the issue, where it
was clearly held as under: -
“That law does not permit that there should be separate category for physically handicapped persons for purpose of reservation.”
This judgement took into account the aforesaid Rajasthan Handicapped Persons
(Physically disabled persons) Rules of 2000 as well. Significantly, Bhuvaneshwar
Singh’s case was a case relating to final examination as the candidates therein had
qualified in the preliminary examination, and was called to appear in the main
examination the result whereof was declared on 24-10-2000 and not a single candidate,
under the category of blind, was interviewed, through the petitioner was the only person
of that category who qualified the preliminary examination, and appeared in the main
examination, under the category of Blind, and according to the mark sheet, there was an
endorsement made to the effect “not qualified for interview”. Which precisely was under
584
challenge. On the other hand, the present case is still on a stronger footing, in as much
as, here the matter relates only to short listing.
As noticed above, the preliminary examination is only an examination for short
listing the candidates, and at this stage it will be too much for the petitioner to ask for
declaration of the results, so category- wise, as is sought to be argued. In that view of the
matter, I do not find any substance in the contention of the learned counsel for he
petitioner that the category wise result for physically handicapped candidates, in the ratio
of 1:15, is required to be declared for the preliminary examination.
The writ petitions thus being devoid of force and are, therefore dismissed
summarily.
***
585
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B.CIVIL SPECIAL APPEAL (WRITS) NO.525/2003
IN S.B.CIVIL WRIT PETITION NO.4742/2002
D.D.20.5.2004
HON’BLE MR.N.N.MATHUR, J. AND
HON’BLE MR.K.K.ACHARYA,J. Rajasthan Public service Commission & Anr. ... Appellants Vs. Shri Manish Thankur ... Respondents
Qualification:
RAJASTHAN TRANSPORT SUBORDINATE SERVICE RULES 1963 – Recruitment to the post of Motor Vehicles Sub Inspector – Recruitment Notification dated 31.10.2001 provided additional qualification of possessing driving licence – The last date for filing application was 19.11.2001 – The respondent a candidate for the said recruitment acquired the requisite licence only in April 2002 – His application was rejected as he did not have the driving licence as on the last date for receipt of application – In the Writ Petition filed by the respondent though the learned single Judge upheld the contention of the Commission that the qualifications prescribed are to be seen on the date of the advertisement and not on the date of interview, on the ground of equity set aside the order of the Commission rejecting the application of the respondent – This Writ Appeal by the Commission was allowed by the Division Bench by holding that the learned Single Judge committed error in invoking the equitable jurisdiction in favour of the candidate who was not qualified on the last date of the submission of the application. Held: That the eligibility of the candidate shall be considered on the basis of qualification possessed by him on the last date of the submission of the application.
Case referred: 1997(4) SCC 18 – Ashok Kumar Sharma v. Chander Shekar & Anr.
JUDGMENT The special appeal is directed against the judgment of the learned Single Judge
dated 31st July 2003, whereby the appellant Rajasthan Public Service Commission
(hereinafter referred to as the Commission) was directed to call the respondent for
586
interview for the post of Motor Vehicle Sub Inspector and give appointment on the said
post, if he is otherwise found suitable in all other respects.
The brief facts giving rise to the instant appeal are that the appellant issued an
advertisement on 31.10.2001 for appointment on 101 posts of Motor Vehicle Sub
Inspectors. The last date of submitting the application form was 19.11.2001. The
appointment of Motor Vehicle Sub Inspector is governed by the Rajasthan Transport
Subordinate Service Rules, 1963 (hereinafter referred to as the Rules of 1963). The
qualification for the appointment on the post of Motor Vehicle Sub Inspector under the
Rules of 1963 is that a candidate must be matriculate with I.T.I. Certificate in
Automobile Engineering. The advertisement further provided an additional qualification
of possessing driving licence. It is not in dispute that the respondent acquired the
requisite licence only in April, 2002 i.e. well after the last date of submission of the
application form. On the last date of filing the application form i.e. 19.11.2001, he was
not holding the driving licence. The appellant Commission permitted the respondent to
appear in the examination subject to fulfillment of the requisite conditions. However,
after he qualified the written test, his application form was scrutinised and it was found
that he did not fulfill the eligibility condition with regard to the driving licence and
therefore, his candidature was rejected. The learned Single Judge following the decision
of the Apex Court in Ashok Kumar Sharma vs. Chander Shekhar & Anr. Reported in
1997 (4) SCC 18 held that the qualifications are to be seen on the date of advertisement
and not on the date of interview. Thus, in the opinion of the learned Single Judge there
was no illegality committed by the appellant Commission in rejecting the respondent’s
candidature. However, the learned Judge found the equity in favour of the respondent.
Considering the peculiar facts and circumstances of the case, the learned Single Judge set
aside the order of the appellant Commission rejecting the application form of the
respondent.
It is submitted by Mr.J.P.Joshi learned counsel for the Commission that the
learned single Judge having found that the respondent was not eligible as he was not
holding driving licence on the last date of submission of the application form has
587
committed an error in disturbing the decision of the Commission rejecting the application
of the respondent. On the other hand, it is submitted by the learned counsel for the
respondent that the equitable view taken by the learned Single Judge does not call for
interference more particularly when on the date of interview the respondent had acquired
the requisite driving licence.
We have considered the rival contentions. The Apex Court in Ashok Kumar
Sharma’s case (supra) has firmly laid down that the eligibility of the candidate shall be
considered on the basis of qualifications possessed by him on the last date of submission
of the application. The learned Single Judge has committed error in invoking equitable
jurisdiction in favour of the candidate who was not qualified on the last date of
submission of the application. With all respect the view taken by the learned Single Judge
runs counter to the law laid down by the Apex Court in Ashok Kumar Sharma’s case
(supra). Thus, in our view the judgment of the learned Single Judge is not sustainable
and deserves to be set aside.
Consequently, the special appeal is allowed. The judgment of the learned Single
Judge dated 31st July 2003 is quashed and set aside.
***
588
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR D.R. CIVIL SPECIAL APPEAL (WRIT) NO.350/2004
D.D. 2.6.2004
HON’BLE MR. JUSTICE N.N.MATHUR AND
HON’BLE MR.JUSTICE K.K.ACHARYA Ashok Kumar ... Appellant Vs. The State of Rajasthan & Anr. ... Respondents Ratio of candidates to be called for interview: Rule 21(6) of the Rajasthan Police Subordinate Service Rule, 1989 provides that the number of candidates to be called for interview in General Merit and OBC category is three times the number of vacancies on the basis of merit prepared on the aggregate marks – Proviso enables the Commission to call candidates belonging to SC & ST categories in excess of the prescribed limit if they have qualified in the written examination and physical efficiency test – As the appellant was not able to get aggregate marks to secure merit upto six times the number of vacancies he was not called for interview- Hence Writ Appeal dismissed. Held: It is well settled that the Commission has a right to call candidates upto a reasonable number. Cases referred: 1) 1985 (4) SCC Page 417 – Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. 2) 2003(11) SCC Page 559 - State of Punjab & Ors. v. Manjit Singh & Ors.
JUDGMENT We have heard learned counsel for the appellant and perused the order of the
learned Single Judge. The brief order of the learned Single Judge is reproduced as
follows:-
“Heard learned counsel for the petitioner. It is contended that according to Rule 2’ (6) of the Rajasthan Police Subordinate Service Rule, 1989 the petitioner being a member of the Scheduled Caste was required to called for interview irrespective of the merit as he has qualified written examination and Physical efficiency test.
589
Suffice it to say that even on a close reading of the entire writ petition it does not appear that it has ever been the case of the petitioner that he belonged to Scheduled Caste. The petitioner has not mentioned his caste, nor there is any averment that he belongs to Scheduled Caste much less he applied as Scheduled Caste Candidate rather the controversy has been sought to be raised regarding some error in giving of marks of two questions, and in that view of the matter the contention has no force.
Thus, the writ petition has no force, and is hereby dismissed
summarily.”
The learned counsel for the respondent submits that though he is not in a position
to support the judgment on the ground on which the learned Single Judge has dismissed
the writ petition, but on the merit of the case the appeal deserves to be dismissed. It is
submitted that a bare reading of the proviso to Sub-rule 6 of Rule 21 clearly shows that
while the number of candidates to be called for interview in General category and OBC
category is three times the vacancies on the basis of merit prepared on the aggregate
marks obtained both in written and physical efficiency test, the proviso enables the
Commission to call candidates belonging to the Scheduled Castes and Scheduled Tribes
category candidates in excess of the prescribed limit, if they have qualified in written
examination belonging to the Scheduled Caste and Scheduled Tribe category and it was
not practicable for the Commission to call all the candidates for interview. In these
circumstances the Commission took a decision that the candidates to be called for
interview in the Scheduled Caste & Scheduled Tribe category should not exceed six
times the number of vacancies and since, the appellant was not able to get aggregate
marks in the written examination and physical efficiency test so as to secure merit upto
six times the number of vacancies, he was not called for interview. It is now well
established that the Commission has a right to call candidates upto a reasonable number,
Reference be made to case of Ashok Kumar Yadav & Ors. Vs State of Haryana & Ors.
reported in 1985(4) SCC page 417 and State of Punjab & Ors vs. Manjit Singh & Ors.
reported in 2003 (11) SCC page 559.
In view of aforesaid, we find no merit in this special appeal though on different
ground, the same stands dismissed.
***
590
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR
D.B. CIVIL SPECIAL APPEAL (WRIT) NO.1052/2003
IN S.B. CIVIL WRIT PETITION NO.7077/2002
D.D. 22.7.2004 HON’BLE THE CHIEF JUSTICE MR. ANIL DEV SINGH
HON’BLE MR. JUSTICE K.S.RATHORE Rajasthan Public Service Commission ... Appellant Vs. Bhaskar Dagar ... Respondent Examination Malpractice: Respondent a candidate for Rajasthan Judicial Service Examination 2001 – The result of the respondent was withheld as it was found that certain pages of the answer books of Law Paper-I and Paper-II were torn – After writing letter to furnish explanation and after the respondent submitted his explanation and after giving an opportunity of personal hearing PSC cancelled the examination of the respondent debarred from appearing in all the examinations for two years – Respondent challenged the said order by filing Writ Petition – Writ Petition was allowed and PSC order was quashed – In this Writ Appeal the Division Bench upheld the order of PSC after setting aside the order in Writ Petition. Held: As soon as the examination gets over the Invigilators are required to collect the answer books from the examinees with promptitude and as such have no time to go through the answer books to find out whether any examinee has indulged in malpractice. Therefore, normally it is not possible to detect the malpractices at the time of collection of the answer books. Therefore, the defence of the respondent that as the malpractice was not detected in the examination hall itself, he could not have been held responsible for the same is not tenable. Further held that PSC cannot be expected to hold enquiries in the manner in which the Court tries a cause. Suffice it to say that the inquiry conducted by PSC to locate the malpractice or misconduct of the respondent was a fair one and no fault could be found with it. There was no infraction of principles of substantial requirement of justice by PSC. Further held that the malpractice need not always result in some form of injury, loss or damage or wrongful gain to a person. Many a times malpractice of persons do not achieve the intended goals. They miss the aims and desired consequences. More often than not, the reason for indulging in malpractices lies embedded in the minds of the
591
persons practicing malpractices and it is difficult to dig the same. Just because the examinee did not benefit by his acts of indiscretion committed by him in the examination or the reason for indulging in the same was not discovered he cannot escape the consequences. Cases referred: 1. (1885) 10 AC 229 – Arthur John Spackman v. Plumstead Board of Works 2. (1915) AC 120 – Local Government Board v.Arlidge 3. 1918 SC 557 – Lord Parmoor in De Verteuil v. Knaggs 4. AIR 1991 Calcutta 310 – West Bengal Council of Higher Secondary Education and
others v. Roupshanara Momtaz & Anr. 5. AIR 2003 Supreme Court 2928 – Bihar Public Service Commission & Anr. v. Vinoy
Kumar Singh & Anr.
JUDGMENT
This appeal is directed against the judgment dated 25.9.2003 rendered by the
learned Single Judge in S.B. Civil Writ Petition No. 7077/2002.
Brief facts giving rise to this special appeal are that the appellant, Rajasthan
Public Service Commission (for short RPSC) issued an advertisement dated 17.5.2001
for conducting the Rajasthan Judicial Service Examination, 2001.
Pursuant to the advertisement dated 17.5.2001, the respondent submitted his
application form in SC category.
The RPSC conducted the aforesaid examination on 16/17 September, 2001 and
the result thereof was declared on 20.11.2001. But the result of the respondent was
withheld as at the time of evaluation of the answer books of the respondent it was
discovered that Page No.23 of the answer book of Law Paper-I and pages 11 to 14 of
Law Paper-II were torn. The appellant RPSC wrote a letter dated 23.11.2001 to the
respondent requiring him to furnish his explanation. In response to the letter of the
RPSC, the respondent on 26.11.2001 submitted his explanation, whereby the respondent
denied having torn the pages of his answer books and submitted that the answer books
were handed over to the Invigilator in completely intact position.
592
The respondent was also given an opportunity of personal hearing by the
appellant. Availing that opportunity the respondent appeared before the RPSC on
19.12.2001. After hearing the respondent, the RPSC did not find his explanation to be
satisfactory and accordingly, the RPSC cancelled the examination of the respondent and
also debarred him from appearing in all the examinations of the RPSC for a period of two
years vide order dated 30.9.2002. Aggrieved by the order dated 30.9.2002, the
respondent challenged the same by way of a writ petition.
During the pendency of the writ petition an advertisement was issued by the
appellant inviting applications for appointment to the post of Assistant Public Prosecutor
Grade-II on 19.2.2002. The respondent also applied for the said post. Pursuant to an
interim order dated 4.10.2002, the respondent was allowed to appear in the screening test
held for selecting a candidate for the post of Assistant Public Prosecutor Gr.II.
On 25.9.2003, the learned Single Judge allowed the aforesaid writ petition of the
respondent and quashed and set aside the order of the appellant dated 30.9.2002. While
allowing the writ petition, the learned Single Judge also directed the appellant to declare
the result of the respondent pertaining to the examination of Assistant Public Prosecutor
Grade-II. It seems that the learned Single Judge felt that in order to establish the fact that
the pages of the answer sheets were torn by the respondent it was incumbent upon the
RPSC to have examined the invigilator as to how and in what manner the pages of the
answer books could be torn in his presence. The learned Single Judge was also of the
view that since the malpractice was not detected in the examination hall itself, the
respondent could not have been held responsible for the act of tearing the pages from the
answer books without initiating any enquiry into the matter and without recording the
statement of the invigilator. In the opinion of the learned Single Judge the examination
of the respondent was not rightly cancelled and he could not be debarred from appearing
in the examinations conducted by the RPSC.
Aggrieved by the order of the learned Single Judge, the appellant has filed the
instant appeal. By order dated 10.11.2003 the appellant was directed to produce the
593
relevant answer books. Pursuant thereto the answer books were presented before us by
the appellant. The appellant was also directed to produce in a sealed cover the
respondent’s result in the written examination held for the selection to the post of
Assistant Public Prosecutor Grade-II. As per the direction, the result was also produced
in a sealed cover by the appellant for our perusal.
We have perused the respondent’s result of the Assistant Public Prosecutor
Grade-II examination. The respondent has secured 50 marks only. The last candidate
who was selected for the post of Assistant Public Prosecutor Grade-II secured 52 marks.
We have also gone through the answer books of the respondent. The answer book
of the respondent reveal that the respondent has not attempted to answer question Nos.30
and 31 in Law Paper-I and question Nos. 31 and 32 in Law Paper II. Besides in answer
books of Law Paper-I and Law Paper-II page No.23 and page Nos. 31 and 32
respectively have been torn.
It is not the case of the respondent that the invigilator was having any enmity with
him and because of vendetta he may have torn the pages. The respondent has also not
alleged that any employee of the RPSC was entertaining a grudge against him and he
may have been responsible for tearing the pages of his answer books. It is well known
that as soon as the examination time gets over, the invigilators are required to collect the
answer books of the examinees with promptitude. When the invigilators are collecting
the answer books they hardly have any time to go through the answer books to find out as
to whether or not any examinee has indulged in malpractices. Therefore, normally it is
not possible to detect the malpractices at the time of collection of the answer books.
A reference to the following observations of Earl of Selborne, L.C.in Arthur John
Spackman v. Plumstead Board of Works, (1885) 10 AC 229 at page 240 were made by
the learned Single Judge in the impugned judgment:
“No doubt, in the absence of special provisions as to how persons who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a
594
judge in the proper sense of the word, but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law.”
Therefore, the person who is to take a decision must not breach the substantial
requirement of justice. Principles of substantial requirement of justice would be satisfied,
provided the decision is made by observing the following conditions by the person who
decides:
1. He must issue notice of hearing of the matter to the parties;
2. He must provide proper opportunity of hearing to the parties by allowing them to state their case and their views;
3. He must act honestly;
4. He must act impartially; and
5. He must act independently without being dictated by some other person
The decision of the RPSC cannot be faulted on the ground that any of the
aforesaid conditions laid down by the Privy Council have been violated in rendering the
same. In the instant case the respondent was asked to submit his explanation with regard
to the discovery of the missing pages of the answer books and after he gave his written
explanation, he was given proper opportunity of hearing to state his case. It is not the
case of the respondent that the RPSC acted dishonestly or its decision was dictated by
some other person. Thus it appears to us that there was no infraction of the principles of
‘Substantial Requirement Of Justice’ by the RPSC.
Reliance was also placed by the learned Single Judge on the following
observations of Lord Parmoor in De verteuil v. Knaggs, 1918 AC 557 at page 560:
“The particular form of inquiry must depend on the conditions under which the discretion is exercised in any particular case, and no general rule applicable to all conditions can be formulated.”
In other words, it seems to us that the nature of inquiry in a particular case is contingent
on or conditioned by the circumstances under which the decision is to be rendered.
595
Therefore, the format of inquiry cannot be put in a straight jacket and no rigid formula
can be laid down for testing the validity of an inquiry. Since the RPSC is required to
continuously hold examinations for recruitment to various services, thousands and lacs of
employment seekers appear in the examinations conducted by the RPSC. In the
circumstances, where lacs of persons appear in the examinations, the RPSC cannot be
expected to hold enquiries in the manner in which the court tries a cause. Suffice it to say
that the inquiry conducted by the RPSC to locate the malpractice or misconduct of the
respondent was a fair one and no fault can be found with it.
The learned Single Judge also relied upon the decision of the Calcutta High Court
in West Bengal Council of Higher Secondary Education and others v. Roupshanara
Momtaz & another (AIR 1991 Calcutta 310) to explain the meaning of the word
“malpractice”. The Calcutta High Court has taken a view that malpractice for which
action can be taken should result in some sort of injury, loss or damage or wrongful gain.
It was also of the view that malpractice means professional misconduct or unreasonable
lack of skill and the term is applied to the professionals. The learned Single Judge
applying the ratio of the aforesaid decision of the Calcutta High Court to the instant case
was of opinion that since the respondent had not gained from the missing pages of the
answer books, he cannot be held to have indulged in dishonest or a fraudulent act and
since the alleged malpractice on the part of the respondent was not detected in the
examination hall, he could not have been held responsible for the act of tearing the pages
from the answer books.
We have not been able to persuade ourselves to subscribe to the view that
malpractice should always result in some form of injury, loss, damage or wrongful gain
to a person. Many a times malpractices of persons do not achieve the intended goals.
They miss the aims and desired consequences. More often than not, the reason for
indulging in malpractices lies embedded in the minds of the persons practicing
malpractices and it is difficult to dig the same. An examinee can also be said to have
misconducted himself in the examination if he adopts unfair means in the examination or
tears the pages of his answer sheet. Misconduct does not always mean a professional
596
misconduct. Some times the desired outcome of the actions do not materialize and the
reasons for indulging in malpractices and misconduct cannot be discovered. But we
cannot bail out an examinee just because he did not benefit by his acts of indiscretion
committed by him in the examination or the reason for indulging in the same was not
discovered.
The observations of the learned Single Judge that how and in what manner the
pages from the answer books could be torn in the presence of the invigilator and could
any one dare to mishandle the answer book in the examination hall escaping the attention
of the invigilators, which were in the form of a query, may have been relevant in times
when the examinees were disciplined and there was fear of authority. In recent times the
things have changed. Malpractices in the examinations are committed in the presence of
invigilators. It is well nigh impossible for invigilators to keep all the examinees under
their gaze all the time. Many a times, unfair means adopted by an examinee escapes the
attention of the invigilator. Just because the invigilator at the time of collection of the
answer sheets was not able to detect that the aforesaid answer books of the respondent
were not completely intact, cannot be a ground to absolve the respondent.
Admittedly, the pages of the aforesaid answer sheets of the respondent were torn.
In this regard as already pointed out, the respondent was asked by the RPSC to submit his
explanation. After the receipt of the explanation, an opportunity of personal hearing was
also accorded to him by the RPSC. It was only after hearing the respondent, that the
RPSC cancelled the candidature of the respondent for the Rajasthan Judicial Service
Examination, 2001 and debarred him from appearing in any of the examinations
conducted by the RPSC for a period of two years. Thus the principles of natural justice
were complied with by the RPSC before passing the order cancelling the candidature of
the respondent for the Rajasthan Judicial Service Examination and debarring him for
appearing in the examinations conducted by the RPSC for two years. The Court while
dealing with the decision of an administrative authority is required to see whether or not a
fair procedure in accordance with the principles of natural justice has been followed by
the concerned authority. It is not concerned with the merits of the decision. In other
597
words, the Court is concerned with the method and manner in which the decision has
been reached. In case the decision does not suffer from any procedural impropriety and
has been arrived at in consonance with the principles of natural justice, the Court will not
interfere with the same, unless the decision is arbitrary, illegal or no reasonable person
could have arrived at it.
In Bihar Public Service Commission and Another v. Vinoy Kumar Singh and
Another, AIR 2003 Supreme Court 2928, the Supreme Court refused to interfere with he
decision of the Bihar State Public Service Commission cancelling the answer sheet of a
candidate and debarring him from appearing in the examination being conducted by it, on
account of the malpractices resorted to by the candidate in the examination as the
decision did not suffer from any procedural impropriety.
The learned Counsel for the respondent questioned the propriety of the procedure
followed by the RPSC for cancelling the examination of the respondent and debarring
him from appearing in the future examinations of the RPSC for a period of two years. He
submitted that since the invigilator was not examined, the decision reached by the RPSC
stood vitiated. We have given our anxious consideration to the submission of the learned
counsel for the respondent. It is not the case of either of the parties that the invigilator
had seen the respondent tearing the pages of the answer sheets. This being so, no useful
purpose would have been served in recording the statements of the invigilator. In the
matter of this nature the strict rules of evidence do not apply. In Local Government
Board v. Arlidge, (1915) AC 120, the House of Lords held that where the question of
propriety of procedure is adopted by Tribunal other than a court of law, there is no
obligation to adopt the regular form of judicial procedure. In this regard it was observed
as follows:
“Where, however, the question of the propriety of procedure is raised in a hearing before some tribunal other than a court of law there is no obligation to adopt the regular forms of judicial procedure. It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice. In determining whether the principles of substantial justice have been complied with in
598
matters of procedure regard must necessarily be had to the nature of the issue to be determined and the constitution of the tribunal.”
We are satisfied that in the instant case principles of natural and substantial justice have
been complied with by the RPSC in reaching the aforesaid decision on totality of
circumstances.
In the circumstances, we are of the view that the learned Single Judge was not
right in quashing the decision of the RPSC, debarring the respondent from appearing in
any of the examinations of the RPSC for a period of two years and directing the RPSC to
declare the result of the respondent in respect of the APP Grade II Examination, 2002.
In view of the aforesaid discussion, we allow the appeal and set aside the order of
the learned Single Judge dated 25.9.2003.
However, it is made clear that the period of debarment in the examinations of the
RPSC shall be counted from the date of examination of RJS i.e. 16/17th September, 2001.
***
599
SIKKIM PUBLIC SERVICE COMMISSION
600
IN THE HIGH COURT OF SIKKIM CIVIL WRIT PETITION NO.45 OF 1995
D.D. 2.9.1996
THE HON’BLE MR.JUSTICE MALAY SENGUPTA, JUDGE
S.D.Karthak Lepcha ... Petitioner Vs. Saran Kumar Thapa & Others ... Respondents
Promotion to non-selection post:
RULE 6 OF SIKKIM GOVERNMENT ESTABLISHMENT RULES 1974:
The principle that promotion should be on the basis of seniority but subject to fitness and any other conditions laid down by the Government - Clause 1.7 of the notification dated 28.1.1980 which was recast in June 1987 gives priority to quality over seniority - Though the petitioner was senior to 1st respondent amongst the Food Inspectors the 1st respondent was promoted to the post of District Civil Supply Officer on the basis of Clause 1.7 ignoring seniority of the petitioner – The High Court allowed the writ petition in part and held that the departmental instruction at Clause 1.7 is invalid so far as promotion to non selection post is concerned and set aside the Government order dated 2.11.1995 and the promotion of the 1st respondent on the recommendation of the Departmental Promotion Committee made on the basis of Annual Confidential Reports only. Held: It is the settled principle with regard to the subordinate legislations that when a Rule is not in conformity with the Act, the provisions of the Act would prevail. Similarly, if any departmental instruction is in contradiction with the provisions of Rule, the latter would prevail. Further held: That in the case of a non selection post the seniority should be the prevailing factor and that quality and merit might prevail over seniority when it is a question of appointment in any selection post.
Cases referred:
1. AIR 1970 Rajasthan 173 – Goman Singh v. State of Rajasthan 2. (1973) 2 SCC 836 – Unon of India v. M.L. Capoor 3. 1983 (2) SLR 183 – T.N.Sankara Sundaram v. Director of S & P 4. 1989 (1) SCC 175 - Union of India v. Soma Sundaram Vishwanath
601
JUDGMENT
This case arises out of a petition filed under Article 226 of the Constitution of
India.
2. The fact of the case relevant for our purpose is that the petitioner was initially
appointed as a graduate clerk in a Government Department of Sikkim. On 12.2.77 he
was promoted to the post of Inspector and became attached to the Food & Civil Supplies
Department. He was selected for and underwent training on various subjects necessary in
the Food & Civil Supplies Department. Exactly eight months after the appointment of
the petitioner as Inspector, three more persons were appointed so. Those three included
the respondent No.1 who was a matriculate and held the post of Sub Inspector in the
Food Department before his promotion as aforesaid. The only scope for promotion
available to the Inspectors of the Food Department was the post of Town Rationing
Officer which was subsequently redesignated as District Civil Supplies Officer.
3. Some time in 1988 respondent No.1 was picked up from amongst the Inspectors
and he was appointed as District Civil Supplies Officer on officiating basis. The
respondent No.1 was junior to the petitioner and other inspectors and was under
qualified. Sometime in 1990 the Government sent a requisition for the post of the Town
Rationing Officer to the Public Service Commission and requested the Commission to
arrange selection of one of the Inspectors to the said post on promotion basis through
Departmental Promotion Committee. The Departmental Promotion Committee as formed
under Notification dated 23.6.87 took the decision on its meeting dated 6.4.90 and sent
recommendation to the Government in favour of respondent No.1 by its letter dated
9.4.90. The petitioner raised objection to such selection and sent representation to the
Government. In consideration of the representation of the petitioner, the Government
decided not to approve the said recommendation and sent a fresh proposal to the Public
Service Commission for making recommendation afresh. That proposal reached the
Public Service Commission in mid 1995. The P.S.C. intimated the Government that
while making the recommendation in 1990 they took into consideration the seniority of
the petitioner as Food Inspector and found the respondent No.1 to be most suitable for the
job. The P.S.C. therefore refused to review its recommendation made in 1990. On
602
receipt of this letter from the P.S.C., the Government issued appointment letter in favour
of respondent No.1 on 2.11.95 appointing him as District Civil Supply Officer with
retrospective effect from 9.4.90.
4. Being aggrieved over the situation the petitioner has filed this writ petition mainly
challenging the order of promotion of respondent No.1.
5. The writ petition is being contested by three sets of respondents separately. The
submission of the Government (respondent No.2) is that there was no nepotism,
favouritism or irregularity at any stage of the proceeding which culminated in the
selection and appointment of respondent No.1 in the post of District Civil Supply Officer.
Respondent No.1 might have been slightly below the petitioner in the seniority list but
the P.S.C. took the seniority and merit of each of the candidates and made the
recommendation. The government in consideration of the representation made by the
petitioner to the Government referred the matter to the P.S.C. once again with request to
review its decision. But the P.S.C. held that there was no reason to deviate from its
earlier decision in the matter of recommendation.
6. The P.S.C. (respondent No.3) contends that they have made their recommendation
fairly in consideration of the A.C.Rs. and also in strict compliance with the rules and
government instructions in this respect.
7. The contention of respondent No.1 is that his appointment as District Civil Supply
Officer was made in consideration of his merit and that as he was continuing to officiate
in the said post from before and since his name was recommended in April, 1990, he was
given appointment with retrospective effect from the date on which he ought to have been
appointed on the basis of the recommendation made by the Public Service Commission.
8. There is no dispute over the fact that the post of District Civil Supply Officer was
to be filled up by promotion from amongst the Food Inspectors. Both the petitioner and
the respondent No.1 were Inspectors and that besides them three more names of
Inspectors were considered by the P.S.C. while making the recommendation. Rule 6 of
the Sikkim Government Establishment Rules deals with the matter of promotion. It has
603
been laid there that the promotions should be on the basis of seniority but subject to
fitness and any other conditions laid down by the Government from time to time. The
Government of Sikkim took certain decisions and issued Notifications from time to time
in amplification of or for giving proper effect to the provision of Rules. By a Notification
dated 28.1.80 several Departmental Promotion Committee were formed. Since the
promotion to the post of District Civil Supply Officer is an entry into the lowest gazetted
post, a Committee was formed as per Clause 1.1A of the above noted instruction. It was
recasted in June, 1987, possibly consequent upon the formation of Public Service
Commission in the State. Clause 1.4 of the Notification prescribes that five eligible
persons are to be brought with the consideration zone when the vacancy is only one.
Clause 1.5 of the Notification indicates that the Annual Confidential Reports for the past
five years excluding the year in which the matter is being considered shall be taken into
account by the Committee. Clause 1.7 gives a vivid illustration as to how the remarks in
the A.C.Rs. are to be utilised for the purpose of selection of the candidates for promotion.
9. At the very outset it has been alleged by the petitioner that the respondent No.1
was treated in a manner different from the rest of the Inspectors as he happens to be the
nephew of the Joint Secretary of the Food & Civil Supplies Department. It has been
stated that though the minimum qualification for the Inspector was graduation, the
respondent No.1 though a matriculate was appointed as Inspector. He was No.5 in the
seniority list and ultimately became No.4 on account of death of Inspector D.P.Sharma.
The position of the petitioner is at Sl.No.2. It has further been alleged that the promotion
should have been on the basis of seniority and if the senior man is found to be unfit for
any reason whatsoever, the case of the next senior man should be considered for
promotion. But that has not been done in this case of promotion. The P.S.C. might have
relied on Clause 1.7 of the Government Notification/Instruction and ignored the seniority
of the concerned officers. The petitioner urged that the instruction under Clause 1.7 is
bad in law as it hits the basic structure of Rule 6.
10. The petitioner submits further that the respondent No.1 was allowed to officiate in
the post of Town Rationing Officer or District Civil Supply Officer ignoring the claim of
other Inspector senior to the respondent No.1. The allegation of the petitioner is that the
604
Joint Secretary, uncle of respondent No.1, managed not only the entry of the respondent
No.1 in the service as Inspector defying the Rules, not only his officiating promotion out
of turn but also giving superlative remarks in the A.C.Rs. which resulted in befooling the
Departmental Promotion Committee.
11. To appreciate the situation, we would require to deal with a few correspondence
between the Government and the P.S.C. But even before entering into the matter we
must once again note that the case is of promotion to the lowest gazetted post in terms of
Rule 6 of the Sikkim Government Establishment Rules, 1974 and that such a matter is to
be dealt with by a Departmental Promotion Committee as per Clause 1.1A of the
Establishment Department Notification No.286/GEN/EST dated 28.1.1980 read with
Notification No.89/GEN/EST dated 12.6.87. Whatever has been contemplated in these
rules is that the promotion shall be on the basis of seniority subject to fitness which is to
be assessed by the Departmental Promotion Committee. Incidentally in the latest
formation of the Committee, the Chairman and the Member of the Sikkim Public Service
Commission have been included in the Committee. Hence it cannot be said that the
matter of promotion to the lowest gazetted post is to be dealt with by P.S.C. It might be
that P.S.C. was made the Nodal Office for such purpose. Unfortunately, the
correspondence between the Government and P.S.C. over the issue gives an impression
as if the matter of promotion is being dealt with by the P.S.C. itself. Even in their
affidavits the respondents described the position in such a manner that everything was
done by the P.S.C. The D.P.C. virtually finds no place in the pleadings.
12. On 28.2.90 the first requisition was sent from the Government to the P.S.C. for
selection of Town Rationing Officer on promotion from the Inspectors. The D.P.C. held
its meeting on 6.4.90 and considered the A.C.Rs. and service records of five senior most
Inspectors and on the basis of overall relative assessment made on the A.C.Rs. found the
respondent No.1 suitably for promotion to the post of Town Rationing Officer. The
P.S.C. sent their recommendation accordingly on 9.4.90. After more than four years the
Government informed the P.S.C. on 26.7.94 that ‘on the basis of recent decision of the
Government’ the vacant post of District Civil Supply Officer was to be filed up by
promotion from amongst the serving Inspectors. In this letter it was indicated that
605
respondent No.1 was holding the said post on officiating capacity. It may be noted
incidentally that the post of Town Rationing Officer was designated as District Civil
Supply Officer in the meantime. On 1.4.95 the P.S.C. informed the Government that
since the post of District Civil Supply Officer is the same as that of Town Rationing
Officer and since the D.P.C. already made a recommendation on 6.4.90, there was no
further action to be taken. After sometime the P.S.C. against wrote to the Government on
26.5.95 asking for the reason for not accepting the recommendation dated 6.4.90. The
Government in its turn sent a letter to the P.S.C. on 20.6.95 stating that the
recommendation of the S.P.S.C. for promoting respondent No.1 was not approved by the
Government on 14.5.90 on account of representation submitted by the petitioner who
claimed to be senior to the respondent No.1. P.S.C. replied to this letter on 5.7.95 to the
effect that the petitioner’s seniority over respondent No.1 was taken into consideration by
the Selection Committee on 6.4.90 and found the respondent No.1 most suitable for
promotion. The Commission requested the Government to let them know if there were
any other reasons warranting review of recommendation already made by the
Commission. Since the P.S.C. did not think it proper to review the matter any further, the
Government on receipt of the above letter dated 5.7.95 issued an order on 2.11.95
promoting the respondent No.1 to the post of District Civil Supply Officer with effect
from 9.4.90. After issuance of that order, the Government informed the petitioner on
10.11.95 with reference to his representation and demand justice notice that his case of
promotion could not be considered at that moment.
13. We should once again note that it was a Departmental Promotion Committee and
not the P.S.C. who made the recommendation. Non-acceptance of the recommendation
of Departmental Promotion Committee is not that difficult a thing on the part of the
Government. Had it been a recommendation of the P.S.C. things could have been a little
different. When the Government by its letters dated 26.7.94 and 20.6.95 clearly indicated
that the Government did not approve the recommendation of the D.P.C. and asked for
further recommendation, the P.S.C. office should not have outright rejected the proposal
of the Government to have the matter assessed afresh by the D.P.C. Moreover, there is
nothing on record to show that the D.P.C. itself had a sitting and took a formal decision
606
before the letters dated 1.4.95 and 5.7.95 were sent from the office of the P.S.C. to the
Government. Thus the veracity of the decision for outright rejection of the Government’s
proposal dated 26.7.94 and 20.6.95 becomes doubtful.
14. We have before us only one proceeding of the D.P.C. which is dated 6.4.90 and
which indicates that the D.P.C. took the decision on the basis of overall relative
assessment made on the Annual Confidential Reports. It gives us the impression that the
D.P.C. was guided by Clause 1.7 of the instruction of the Government in connection with
Rule 6 of the Establishment Rules, 1974. We may find from this Clause that if the entries
in the A.C.R. are of excellent quality, a candidate having 7th or 5th position in the
seniority list might occupy number 1 position for the purpose of Departmental
Promotion. It is to be seen if this Clause 1.7 is in conformity with Rule 6 which provides
that the promotion should be on the basis of seniority subject to fitness. We have already
noted the implication of Clause 1.7. It is in complete defiance of the provision prescribed
in the Rule. It is the settled principle with regard to the subordinate legislations that
when a Rule is not in conformity with the Act the provision of the Act would prevail.
Similarly if any departmental instruction is in contradiction with the provisions of Rule,
the latter would Prevail. Decision reported in AIR 1970 Rajasthan 173 (Goman Singh
versus State of Rajasthan) and 1989(1) SCC 175 (Union of India versus Soma Sundaram
Vishwanath) would confirm the above proposition. Rule 6 indicates priority on the
seniority over fitness. But Clause 1.7 suggests that quality would make the seniority
insignificant. This Court in its decision dated 8.6.92 in Writ Petition No.4 of 92
confirmed the position that Rule 6 contemplates seniority as the principal basis of
promotion. Learned Advocate General referred to a decision dated 27.6.95 in Civil Writ
Petition No.19 of 92 by the same Judge to show that a contrary view was taken. A
reading of the two judgments would not lead us to the conclusion that the view taken in
these two decisions are contradictory. Again we have before us the decisions reported in
1983 (2) SLR 183 (T.N. Sankara Sundaram Versus Director of S & P) and (1973) 2 SCC
836 (union of India versus M.L.Capoor) which indicate that in case of promotion, the
seniority should be the prevailing factor. We should further note that quality and merit
might prevail over seniority when it is a question of appointment in any selection post.
607
Besides the above two decisions we may refer to the decision reported in AIR 1967 S.C.
1910 (Sant Ram versus State of Rajasthan) in this context. The State is also conscious
about the legal position and for the said reason in its affidavit dated 8.4.96 it categorically
stated “the present post being a selectional post and not a promotional post respondent
No.1 was promoted on merit-cum-seniority”. But ultimately the respondents conceded
that the instant case was not a case of promotion to a selection post.
15. It has been pleaded by the petitioner that as Clause 1.7 of the Departmental
Instruction is contrary to the specific provision in Rule 6 this particular clause should be
held to be invalid. It is true that Clause 1.7 of the Departmental Instruction is contrary to
Rule 6 of the Establishment Rules. But this Clause 1.7 cannot be held to invalid outright.
Clause 1.7 holds quite good so far as promotion to a selection post is concerned but it is
bad and inapplicable in cases of promotion simpliciter.
16. We have already pointed out that the Departmental Promotion Committee made
the recommendation on the basis of Annual Confidential Reports only. That means
invoking Clause 1.7 of the Departmental Instructions. Since it is not a case of promotion
to selection post, the Committee palpably worked under misconception. Therefore, the
decision of the Selection Committee on 6.4.90 suffers from material irregularity and
illegality.
17. In cases of promotion in non-selection posts, seniority should receive prime
consideration. Fitness should obviously be examined. But not in the manner as
illustrated under Clause 1.7. Grammatically fitness means suitability. It can be judged
from various aspects beside entries in the A.C.Rs. Academic qualification must be one of
the elements in assessing the suitability. In Sikkim, academic qualification receives
priority in many respects. Rule 10(a) of the Establishment Rules is a glaring example.
18. Since the D.P.C. while considering the candidature on 6.4.90 was guided under a
wrong application of the provision of law and since the D.P.C. had no occasion to apply
its mind on the proposal of the Government to make the recommendation fresh, we
cannot endorse the step taken by the Government in issuance of the retrospective order of
608
promotion on 2.11.95. At the same time we cannot impose any decision on the
Departmental Promotion Committee. It has neither been pleaded nor prayed by the
petitioner nor is permissible under the law to replace respondent No.1 by the petitioner.
Decision of the Supreme Court in State Bank of India versus Md. Mynuddin reported in
AIR 1987 S.C. 1889 may be referred to in this context. It should also be noted that such a
prayer could also not have been made by the petitioner as he does not hold position at
Sl.No.1 in the seniority list of Inspectors.
19. We should also keep in our mind that the petitioner has been officiating in the
promotional post since 1988 though the initial officiating promotion was made in
defiance of all the norms and rules. It is needless to mention that even in adhoc and
officiating appointments, norms and rules are to be followed strictly. However, it would
not be just and prudent to make any mandatory order to pull the respondent No.1 down
from the post where he has been working so long, even on illogical and illegal manner.
20. From the above discussions it is,
ORDERED
That the writ petition be and the same is allowed in part on contest but without any costs.
Departmental instruction at Clause 1.7 is held invalid so far as promotion to non-selection
post is concerned. The order of the Government dated 2.11.95 is set aside. The
Departmental Promotion Committee would reconsider the requisition of the Government
for recommendation for appointment in the post of District Civil Supply Officer on
promotion in due consideration of the candidature in the light of the observation made in
this judgment. The respondent No.1 would, however, continue to officiate in the post till
final appointment is made by the Government on the recommendation of the
Departmental Promotion Committee.
***
609
TAMIL NADU PUBLIC SERVICE
COMMISSION
610
IN THE TAMIL NADU ADMINISTRATIVE TRIBUNAL AT CHENNAI O.A.Nos.1211, 1282, 1283, 1284, 1285, 1286, 1311, 1312, 1313, 1314, 1315, 1316,
1317, 1318, 1400 & 1401 of 2002 D.D. 13.12.2002
THE HON’BLE MR. JUSTICE I.DAVID CHRISTIAN – VICE CHAIRMAN
A.Durai Arasan & Others ... Applicants Vs. The Tamil Nadu Public Service Commission & Ors. ... Respondents Scaling technique in valuation:
The applicants who were candidates for selection to Group-I Service for the year
2000-01 challenged their non-selection on several grounds, main ground being adoption of scaling technique in valuation – Tribunal mainly on the ground that the selected candidates have secured more actual marks and not scaled marks than the applicants dismissed all the applications.
ORDER
All these applications have been filed by individuals who have appeared before
the Tamil Nadu Public Service Commission for selection to Group I service for the year
2000-01. They have filed these applications praying for direction to the respondent
TNPSC to call these applicants for oral test and also direct them to select these applicants
for posting in Group-I service.
2. Tamil Nadu Public Service Commission notified about 74 vacancies in Group I
service for which applications were called for from eligible candidates. Notification was
made in the year 2000. Selection process consisted of a preliminary examination wherein
all the eligible candidates will be permitted to participate and write test and those persons
who have scored high marks will be called for to write the main examination. From
among the persons who write the main examination elimination process will be carried
out and ultimately persons who have scored high marks would be called for oral
interview after which the selection list will be published by the TNPSC. Notification was
made in 2000 and the preliminary examination was conducted by TNPSC in May 2000.
Altogether more than 70,400 persons applied for selection out of which 50,830 actually
611
wrote the preliminary examination. Answer papers were valued and top scores numbering
740 were selected for writing the main examination. Out of 740 persons who wrote the
main examination 141 persons were called for interview for Group I posts in the ratio of
1:2. For every two persons who were called for attending oral interview, one will be
selected. List of selected candidates was published by the TNPSC on 27.2.2002 and
intimations have been sent to candidates who were finally selected for getting postings.
3. All these persons have appeared for the preliminary examination and they
qualified themselves to write the main examination and they have also written the main
examinations. In the process of elimination or short listing, these persons were not called
for oral test or interview because they have not obtained sufficient marks. These persons
have filed these Original Applications and interim order was passed by this Tribunal as
per which direction was issued to the respondent TNPSC to admit them to the oral test
and withhold the publication of results so far as these applicants are concerned. However
TNPSC took the matter to High Court and challenged the interim order and the interim
order was vacated and the Writ Petition filed by TNPSC was allowed, as a result these
persons were not also called for the oral interview in view of their poor performance,
compared to others who have been called for attending oral test.
4. All these persons have filed these applications challenging the mode of selection
pointing out the alleged discrepancies and defects in the mode of selection adopted by the
TNPSC. So far as the applicant Thiru A. Durai Arasan in O.A.No.1211/02 is concerned,
he has raised the contention that options given to him in the main examination in respect
of Civil Engineering paper was limited and it was not like previous years and he has been
discriminated thereby and he has been put in an unequal position with these candidates
who have taken other subjects and who have taken their examinations. It is merely
pointed out by this applicant that in Civil Engineering Paper I seven questions were given
out of which applicant was directed to answer atleast five questions. It is in this respect it
is pointed out that on prior occasions eight questions were given and the applicants were
requested to choose five out of eight whereas choice has been limited this year when
applicant appeared. This objection also is only stated to be rejected.
612
5. The examination was conducted on post Graduate standard. The applicant is a
Graduate in Engineering and the paper chosen is Civil Engineering. There was seven
questions in the question paper out of which applicant was requested to answer atleast
five and two questions were made compulsory. There is nothing wrong or illegal about
it. It cannot be stated that the applicant must be asked to choose five questions out of
eight only. The applicant is expected to be thorough in his subject and there fore just
because choice was narrowed than the previous examination it cannot be stated that
applicant was discriminated.
6. It is also next contended that certain questions found in the question paper were
also out of syllabus and the scope of subject and therefore the applicant must be given
full marks in respect of these answers. This is a vague allegation made by the applicant
and he is not able to point out even single question which is outside the scope or syllabus
of the subject which he has chosen. The applicant is not able to point out a single
question which according to him was outside the syllbus. In fact syllabus is prepared by
the TNPSC with the help of experts on the subject and it is also sent to persons who are
asked to set the question papers with a clear direction that there shall not be any question
outside the syllabus and this has been adhered to by the persons who were entrusted with
the task of setting all question papers. In fact when the applicant has raised the objection
by way of representation made to the TNPSC and when he filed a previous original
Application and obtained direction from this Tribunal, the matter was referred to experts
and the persons who set the question papers and they have all agreed that none of the
questions found in the question papers were outside the syllabus prescribed by the
TNPSC. The syllabus for each subject is given in the notification and therefore on this
contention the applicant cannot succeed and this is only an attempt on the part of the
applicant to get his marks boosted which is lower than the obtained by persons who have
been finally selected by the TNPSC. So the contention raised by this applicant with
regard to the syllabus and question papers have to be rejected and appears to have been
made because of frustration due to his non-selection.
613
7. All other applicants have raised some objections about the valuation procedure
adopted by the TNPSC in short listing the candidates according to their performance and
it is alleged that the TNPSC has, adopted a new technique called scaling down technique
which has been worked out in such a manner as to cause prejudice to persons who have
really scored high marks in the main examination written by them. The TNPSC in its
counter affidavit has admitted that answer papers of these persons who have written the
main examination have been valued by two examiners independently and real marks
obtained by them were all tabulated first. It is true that TNPSC has adopted a technique
called scaling down technique and the principle underlying the technique is by adopting
this technique persons who have scored high marks in certain subjects where it is possible
to score and bring them down compared with marks which could not be so high in certain
subjects like History, Politics etc. It is also stated by the TNPSC that scaling down
technique was adopted by Union Public Service Commission and this has been also
studied and for certain reasons they have given in the counter this system was not
adopted fully by the TNPSC but they went in for adopting the system that was being
followed by the Rajasthan State Public Service Commission and this was found suitable
to the candidates who have appeared for examination held by TNPSC.
8. The case of the applicants is that they also scored very high marks in the subjects
which they have chosen for main examination but because of the adoption of the scaling
down techniques their marks have been reduced very much and this has really affected
their chances of being selected finally. The claim made by the applicants is to be verified
with regard to the factual situation and therefore TNPSC was directed to produce
tabulation sheet showing the actual marks scored by these applicants and the marks
allotted to them after applying scaling down technique. Tamil Nadu Public Service
Commission was directed to produce tabulation list for all the selected candidates. In
pursuance of the direction issued by me the TNPSC has produced the list of Raw Marks
and scaled down Marks of fifteen candidates who have filed applications before this
Tribunal and TNPSC also produced list of Raw Marks and Scaled Marks obtained by 74
selected candidates. The list contains Serial Number, Roll Number, Community to which
they belong, subject chosen by the candidates. Raw Marks awarded and scaled marks
614
finally arrived at by applying the technique. The actual marks scored by the candidates
evaluated by the examiners is called Raw Marks and the scaled marks that were arrived at
by the TNPSC after applying scale down technique with the help of experts.
9. It is also to be remembered that evaluation of answer papers is done by eminently
qualified persons and the papers are valued by two examiners independently of each
other. Incase there is variations in the valuation done by these two examiners to a
considerable extent, paper is referred to a third examiner. Therefore the method adopted
by the TNPSC for evaluation of the answer papers of the candidates cannot be faulted.
10. The list of Raw Marks and Scaled Marks of fifteen persons who have filed these
applications are furnished and they shows that the actual or Raw Marks obtained by them
is are very much low in all cases. Only incase of about four or five applicants the scaled
down marks are less than the marks actually scored by them. Actual marks scored by
these candidates are found in the list and all the candidates have scored less marks
actually than the actual marks scored by 75 candidates who have been selected. To cite
few examples among the backward class candidates who have written main examination
and who have taken Geography and Tamil Language & Literature, one of the candidates
who have been selected has scored total of 1070-50 whereas the applicant who belongs to
same backward class community who has taken the same subjects has scored only 914
marks. In fact after applying the scaling down technique total marks awarded to the
selectee is 1090-50 and total marks awarded to the applicant who belongs to same
category is 922.47 only.
11. It can be seen from this example that scaled marks are in fact higher than the
actual marks scored by them. Any how after going through the list and after comparing
the performance of the applicants who have not been called for interview with the marks
scored by the persons who have been selected, I am able to find out that these applicants
have scored very much less marks in actual valuation before applying the technique.
Therefore the comment made by these applicants that because of the application of scale
down technique their marks have come down considerably and thereby they are deprived
of their chances of selection is not borns out by factual position. Even raw marks
615
obtained by these applicants are very much less than raw marks obtained by 74 selected
candidates and therefore it has been proved that the applicants’ performance has not been
prejudicially affected by applying the scale down technique. Therefore it is not correct to
state that application of scale down technique has caused prejudice or has affected the
chances of these applicants with reference to their actual performance in the examination.
The applicants have not substantiated that the new technique adopted by the TNPSC has
resulted in arbitrary taking away their chances of being selected.
12. All these applicants are proved to have been not selected only because of their
poor performance compared to the performance of selected candidates. I am only saying
that the performance of the applicants is poor compared to the performance made by
selected candidates. Only persons who have scored marks higher than these applicants
have been selected. The cut of marks have been fixed with reference to principles of
reservation which have been also adopted by TNPSC. Therefore there is absolutely no
basis for the complaints raised by these applicants. They have only tried desperately to
discredit the system adopted by TNPSC only because they have not faired well. The
applicants have not been called for oral test rightly because the list of candidates who
wrote main examination are short listed and only top performers were called for oral test
and selection chances was 1:2. Therefore I do not find any reason or justification to
interfere with selection done by TNPSC for Group I service. The applicants have failed
to make out a case that they have been treated discriminately or their chances have been
prejudicially affected by the system of evaluation adopted by TNPSC. It has to be also
remembered that TNPSC is a constitutional body and has conducted examination with the
help of experts in the subjects and in the technique. No malafide is even alleged against
the persons who are responsible for final selection. Therefore all the applications are
liable to be dismissed.
13. In the result the applications fail and they are all dismissed.
***
616
IN THE HIGH COURT JUDICATURE AT MADRAS W.P. MISCELLANEOUS PETITION NO.28608 OF 2004 IN W.P. 17969 OF 2004
D.D. 19.08.2004
THE HON’BLE MRS JUSTICE PRABHA SRIDEVAN
S.Madhavan & Others ... Petitioners Vs. The Secretary, Tamilnadu P.S.C. ... Respondent
Scaling technique in valuation:
The main grievance of the petitioners who were candidates for Group-I Examination is that the scaling technique was not adopted properly in as much as wherever the number of students for a particular subject were less than 5 the scaling technique was not adopted – The High Court considering the counter statement filed on behalf of P.S.C. explaining the formula applied for scaling the marks and also the decision of the Supreme Court in U.P. Public Service Examination v. Subhash Chandra Dixit - AIR 2004 SC 163 dismissed the writ petitions. Held:
As scaling technique is devised by an expert unless it is shown that it is arbitrary and totally unreasonable, the Court cannot interfere with the same. It is further held that subject bias is minimised and a fair chance is given to every subject so that there is due representation for candidates choosing any optional subject.
Cases referred:
1) AIR 1998 SC 795 – Union of India v. Chandrasekaran 2) AIR 2004 SC 163 - U.P. Public Service Examination v. Subhash Chandra Dixit
ORDER :-
This petition coming on for orders upon perusing the petition and the affidavit
filed in support thereof and upon hearing the arguments of M/S R.KARTHIKEYAN
Advocate for the petitioner and of MR.N.PAUL VASANTHA KUMAR Advocate taking
notice the court made the following order:-
In all these W. P. M. Ps., the main grievance of the petitioners is that the scaling
technique is not adopted properly. According to the learned Counsel, who appear for the
617
various petitioners, the applicants were not informed in the Notification that the scaling
technique will be adopted. The manner in which the scaling technique adopted is not
specific.
2. In U.P PUBLIC SERVICE EXAMINATION V.SUBHASH CHANDRA DIXIT
(A. I.R.2004 S.C. 163), the Supreme Court has approved the scaling technique as the
same eliminates variation in making standards of different examiners.
3. In the counter filed by the respondent, the respondent has explained the manner in
which they are adopting the scaling technique. The scaling technique adopted by the
respondent has been explained in paragraph 25, which is extracted as follows:-
The following is the scaling formula (Generally) (If total marks 100 for subject)
Xs = 50% + 10% { x-x} = 50+10{x-x} ¯¯¯ σ Xs = the scaled mark (in percentage) X = Raw Mark obtained by the candidate in the subject --- X = Mean marks obtained by the candidates in the subject
σ = Standard Deviation as the optional subject contains two papers each of 300 marks and totally 600
marks, the Commission has adopted the following formula
Xυ = A + B X - X Where Xυ = Scaled mark of the candidate in the subject X = Raw mark of the candidate in the subject
618
--- X = Mean marks of all candidates in the subject
σ = Standard Deviation of the marks in the subject Where A and B are constant. A being 50% of Total Marks in the subject i.e. 50%
of 600 + 300 and B being 10% of Total Marks i.e. 10% of 600 = 60
4. It is the case of the respondent that the purpose of implementing the scaling
technique is to remove the disparity in the valuation. The complaint of the petitioner that
the respondent does not adopt the scaling technique, which is followed by U.P.S.C or
Rajasthan Public Service Commission is not really relevant. The manner in which the
valuation made by the TNPSC is different from those that are adopted by other two
service commissions. In the Tamil Nadu Public Service Commission, each of the answer
book of the candidates is valued twice by two different persons. If the difference is more
than 15% then such answer books are once again subjected to third valuation by another
examiner.
5. It is also seen from the counter that in such cases, the average of the nearest two
marks is taken into account. There may be cases where some of the Examiners are
lenient and some of them are not lenient. This proess is adopted only to minimize the
Examiner bias. Learned counsel for the petitioners has produced a chart to show how the
scaling technique adopted by the respondent will result in injustice, but this is purely a
hypothetic chart. However, it is extracted hereunder for the purpose of explaining the
complaint that is voiced by the petitioners :-
Optional Subject :- 1 Sl. No. RAW MARKS DIFFERENCE SEALED MARKS 1. 563 -142.82 420.18 2. 442 - 77.85 364.15 3. 393 - 51.54 341.46 4. 330 - 17.71 312.29 5. 240 + 30.63 270.63
619
6. 212 + 45.67 257.67 7. 198 + 53.18 251.18 8. 184 + 60.70 244.7 9. 169 + 68.76 237.76 Optional Subject 2 :- Sl. No. RAW MARKS DIFFERENCE SEALED MARKS 1. 525 -128.91 396.09 2. 510 -120.98 389.02 3. 497 -114.12 382.88 4. 465 - 97.22 367.78 5. 442 - 85.07 356.93 6. 417 - 71.87 345.13 7. 403 - 64.47 338.53 8. 379 - 51.80 327.2 9. 330 - 25.92 304.08 10. 301 - 10.61 290.39 11. 277 + 2.070 279.07 12. 275 + 3.12 278.12 13. 240 + 21.61 261.61 14. 212 + 36.39 248.39 15. 198 + 43.79 241.79 16. 178 + 54.35 232.35 17. 165 + 61.22 226.22 18. 151 + 68.61 219.61 19. 141 + 73.89 214.89
6. The TNPSC does not resort to scaling technique where the students, who have
appeared for the particular subject are less than 5, for those students, raw marks are
awarded. Learned counseling the petitioners pointed out in Option no.1, the students,
who have obtained 442 marks, will get scaled mark of 364.15. In option no.2, the
students who have obtained 442 marks will get the scaled mark of 356.93, where as if the
students who have written the examination is only four, he will get his raw marks of 442.
According to the petitioners this will cause injustice, because the students who have
obtained higher marks as in Options 1 & 2, will have all their marks scaled down. The
students who have appeared in certain subjects, for which there are not many students
will get the advantage of raw marks. Totally the aggregate marks will be higher than
others.
620
7. Learned counsel for the petitioners also submitted that he reliably understands
that the persons, who have taken Mathematics as their option, for which there are not
more than five students, have been selected, because they had the advantage of having
their raw marks included in their aggregate marks.
ACTUAL MARK DEVIATION FROM MEAN SQUARE OF DEVIATION 20 -4 16 25 1 1 32 8 64 15 -9 81 28 4 16 = 178
Standard Deviation (8)= = 178/5 = 35.6
= 6.96. 8. The manner of ############### the scaling technique is done is explained in
S.C. Dixit v. U.P. Public Service Commissioner (2003(9) AIC 191) by the Allahabad
High Court. It is against this judgment that the Service Commission went on appeal
which resulted in the deision reported in AIR 2004 S.C. 163 this is extracted below: -
“6. In the supplementary counter- affidavit, it is averred that the formula applied for scaling the marks is that given in the book SCALING TECHNIQUE S written by V.Natarajan and K.Gnanasekaran. The precise formula used is as under: - Z = Assumed Mean + (X-M) X Assumed S.D. SD Z is the Scaled Score X is the raw mark or actual marks awarded by examiner M is the Mean of Raw Marks of the group/subject (as the case maybe) S.D. is the Standard Deviation of Raw Marks of the group/subject (as the case may be) Assumed Mean will be taken as half of the maximum marks of the group/subject. Assumed S.D. will be taken as 1/5th of the assumed mean.
621
If after scaling the scaled marks are less than zero, the candidate will be given zero mark in that subject. If after scaling the scaled marks exceed the maximum mark, the candidate will be given the maximum marks in that subject. In the preliminary examination scaling will be done at the stage of optional paper and in the mains examination scaling will be done of all the papers at examiner’s level. The merit will be determined after adding the scaled marks in each subject. If the scaled score is in decimal, the same will be converted into whole number according to practice. The standard deviation is calculated in the following manner: If five candidates secure 20,25,32,15 and 28 marks: Mean marks of the group = 20+25+32+15+28 5 = 120 = 24 5 ACTUAL MARK DEVIATION FROM MEAN SQUARE OF DEVIATION X S = X - M 20 ######### #########3 25 ########## #########3 32 ########## ######### 15 ########## ######### 28 ########## #########
9. Even in this formula it is seen that the mean of the raw marks for each group
subject could be taken. The mean marks cannot be arrived at by taking all the marks in
all the subjects. Further, if the number of students, who have appeared for a particular
paper are less than 5 and the mean mark is calculated, there is a likelihood of there being
higher deviation than in other cases. It is for this reason, wherever number of students,
who have appeared, are less than 5, this scaling technique is not adopted. As observed by
the Supreme Court in A.I.R. 2004 S.C. 163, the scaling technique is devised by an expert
and unless it is shown that it is arbitrary and totally unreasonable, this Court cannot
interfere with the same.
622
10. In fact, in the counter filed by the Public Service Commission, the details are
given regarding the manner in which the scaling technique is adopted. It is explained that
the technique adopted by U.P. P.S.C. cannot be adopted in toto by TNPSC. The
U.P.P.S.C conducts examination nationwide and the scaling is being done taking into
account the various factors such as zone, region etc. Hence the scaling technique
followed by the Rajasthan Public Service Commission was studied in detail and experts
from various fields viz. Mathematics, Statistics, Economics, Computer Science etc.,
were invited to analyse the formula followed by the Rajasthan Public Service
Commission and after detailed discussions with them, the Commission came to the
conclusion to adopt the formula followed by the Rajasthan Public Service Commission
with some slight modifications to suit the requirements of the Tamil Nadu Public Service
Commission.
11. It is admitted that after adopting scaling technique, the individual marks are
scaled up or scaled down using the formula with reference to the number of candidates in
the particular subject. The subject bias is minimized and a fair chance is given to every
subject, so that there is due representation for candidates choosing any optional subject.
12. It is the grievance of the petitioners that a person, who writes a paper on which
there are not many students, is likely to have an advantage of raw marks. This is also
answered by the respondent who explains the reason why the individual marks are not
scaled top or scaled down where there are 3 or 4 students for a particular paper.
13. The other complaint raised by the learned counsel for the petitioner is that there
was no disclosure of the manner in which the scaling technique has been adopted. If the
petitioners had any grievance they ought to have voiced it earlier. In UNION OF INDIA
V CHANDRASEKARAN (A.I.R 1998 S.C. 795), the Supreme Court has held that a
candidate, who had appeared for written test and the department promotion Committee,
cannot subsequently raise a plea challenging the validity of the process adopted.
623
14. Learned counsel for the petitioners further pointed out to the instructions given to
the candidates, who have written the examination, which required the candidate to
provide their own pens, ink, blotting papers and instrument boxes and forbids to use of
colour pens, sketch pens, pencils etc. Learned counsel submitted that these instructions
were given i order to avoid identification of the candidates by the examiners. According
to the learned counsel for the petitioners, at least 20 persons had committed this
malpractice. Even if this is accepted, the ground raised by the petitioners cannot be
decided one way or other in the absence of the so-called 20 persons, who are alleged to
have committed malpractice. If the petitioners are really aggrieved, it is open to the
petitioners to obtain orders after imp leading such persons, so that they can also be heard.
15. For the above reasons, the interim orders cannot be continued, nor can a direction
be given no to publish the results.
16. Therefore, W.P.M.P Nos.28603 to 28606, 19520, 19522, 21370, 28607, 28608,
23877 and 23878 of 2004 are dismissed. Consequently, the connected W.V.M.P No.
1162, 1172, 1288, 1289 and 1351 of 2004 are ordered.
***
624
TRIPURA PUBLIC SERVICE COMMISSION
625
IN THE GAUHATI HIGH COURT, AGARTALA BENCH WRIT APPEAL NO.52 OF 2001 & CONNECTED CASES
D.D. 5.12.2001 THE HON’BLE MR. JUSTICE P.K. SARKAR
AND THE HON’BLE MR. JUSTICE H.K.K.SINGH
Sri. Subrata Majumdar ... Appellant Vs. The State of Tripura & Ors. ... Respondents Selection on the basis of qualification and experience: Selection of candidates for appointment as Panchayat Officers –Qualification prescribed for the post – (i) Degree of a recognised University and (ii) Training in Rural Development and extension service – 90 candidates had the prescribed qualification and experience – As the Commission had doubt as to the qualification and experience the matter was referred to the Government which held that the said candidates fulfilled the eligibility criteria – After the interview the Commission selected 9 candidates – The petitioners who were among the candidates interviewed were not included in the select list and hence challenged the selection on the ground that the selected candidates did not fulfill the requisite qualification – Single Judge held that 8 selected candidates did not have the Training in Rural Development and quashed the appointment of the said 8 candidates – In Appeal the Division Bench after examining the records held that all the selected candidates fulfilled the requirement of the qualification and hence, allowed the Writ Appeal. Held: That if a candidate takes a calculated chance and appears at the interview then only because the result of the interview is not palatable to him, he cannot turn down and subsequently contend that the process of interview was unfair or the selection was not proper or the selected candidates do not fulfill the required qualification. Further held that when the petitioner appeared at the examination without protest and when he found that he would not succeed in the examination he filed a writ challenging the said examination such a petitioner should not be granted any relief.
Case referred:
AIR 1986 SC 1043 – Om Prakash Shukla v. Akhilesh Kumar Shukla
ORDER
These groups of appeals are directed against the common judgment and order
passed by the learned single Judge on 12.4.2001 in Civil Rules No.137/1997 and Civil
626
Rules No. 478/1998. Since in these appeals common question of facts and law are
involved, we propose to dispose of all these appeals by this common judgment and order.
2. In these appeals, appellants were selected by the Tripura Public Service
Commission, hereinafter referred to as ‘Commission’, for appointment as Panchayat
Officer in the Panchayat Raj Department, Government of Tripura pursuant to an
advertisement issued by the Commission on 1.11.95. The advertisement indicated that
the candidates possessing the following qualifications and experience are eligible for
appointment to the said post.
Qualification: Essential:
(i) Degree of a recognized University.
(ii) Training in Rural Development and extension service.
The qualification prescribed by the Commission in its advertisement dated 1.11.95 is the
same as that indicated in the Recruitment Rules for the post of Panchayat Officer issued
by the notification of the Govt. of Tripura in the Panchayth Department vide No.F.I(11-
11)-ESTT/PR/87/8413-48 dated 27.11.1998. The Commission received 914 applications
and after scrutiny the Commission was of the view that two candidates satisfy the
requisite qualification as prescribed in the advertisement and as regards 90 (ninety)
candidates, Commission observed that those ninety candidates have training and
experience as prescribed in the Recruitment Rules as well as in the advertisement, but
they have a doubt whether those qualifications are strictly in accordance with
qualifications prescribed in the Recruitment Rules as well as in the advertisement.
Consequently, the Commission made a reference to the Government in respect of those
ninety candidates seeking the views of the Panchayat Department in respect of the
eligibility of the said ninety candidates who were found to have some experience in rural
development and extension service and according to the Commission, those training and
experience did not strictly satisfy the requirement of the training and experience
prescribed in the advertisement. The Govt. by communication under No. F.1(11-11)-
ESTT/PR/87/13527 dt. 26.12.1996 informed that the Govt. had examined the cases of 90
candidates referred by the Commission and the Govt. after perusing the papers of the
aforesaid 90 candidates were satisfied and decided that those 90 candidates fulfilled the
627
eligibility criteria as prescribed in the Recruitment Rules as well as in the advertisement
and therefore, the Govt. requested the Commission to arrange for interview of the said
ninety candidates for the said post of Panchayat Officer. Accordingly, the Commission
took interview of all the 92 candidates and in interview, apart from the Chairman and
Member of the Commission the Director of Panchayat was also involved as an expert
advisor-cum-departmental representative. The interview was taken from 15.1.1997 to
24.1.1997. Out of the 92 candidates 72 candidates reported for interview. The
Commission interviewed 69 candidates and three general category candidates were not
interviewed as they failed to produce no objection certificate from their present
employers. After taking interview of the candidates, the Commission found nine
candidates as suitable for appointment to the post of Panchayth Officer under Panchayat
Raj Department and prepared the list of selected candidates in order of merit. The
Commission also kept a reserve list of five candidates according to merit. Two writ
petitioners-respondents in these appeals were also amongst the ninety candidates who
were screened for interview for the post of Panchayat Officer and they also appeared
before the Interview Board, but they failed to qualify in the interview and were not
selected by the Commission. Having failed to get selection for the post of Panchayat
Officer, two writ petitioners namely Shri Sankar Chowhan and Shri. Hemkantinath filed
two-writ petitions, which were registered as Civ. Rule No. 137 of 1997 and Civil Rule
No. 478 of 1998.
3. The writ petitioners challenged the selection of the nine candidates on the ground
that selected candidates did not possess the qualification and experience as prescribed in
the Recruitment Rules mainly the selected candidates did not have appropriate training in
the field of rural development and extension service.
4. After selection by the Commission, the said nine candidates recommended by the
Commission were appointed by the Govt. to the post of Panchayat Officer in the year
1997. Learned Singe Judge who dealt with these writ petitions quashed the appointment
of 8 (eight) candidates, but he did not interfere with the selection and appointment of the
respondent Smt. Sanchita Roy who was found to be eligible by the learned Single Judge.
The reason for quashing the appointment of the eight selected candidates by the learned
628
Single Judge is that they do not fulfill the requisite qualification as prescribed in the
Recruitment Rules or in the advertisement. There is no doubt about the essential
qualification prescribed in item (i) i.e. Degree of a recognized University, but so far the
qualification prescribed in item (ii), the learned Single Judge held that eight selected
candidates did not have training in rural development and extension service. Accordingly
learned Single Judge quashed the appointment of eight candidates who were appointed by
the Government as Panchayat Officer on the basis of the recommendation by the
Commission.
5. Mr. B. Das, learned Sr. Counsel appearing on behalf of some appellants,
Mr.S.Talapatra, learned counsel appearing on behalf of some of the appellants,
Dr.N.K.Bhattacharje, learned representing one appellant as well as Mr. U.B.Saha, learned
Govt., Advocate for the state of Tripura and Mr.S.Deb, learned senior counsel appearing
on behalf of the Commission have resisted the contention of the writ petitioners-
respondents and have submitted that there was nothing wrong with the selection process
and the marks given in the viva voice test and that the writ petition are devoid of merit
and is required to be dismissed and also these present set of appeals should be allowed.
6. Mr. M.K.Bhowmik, learned senior Counsel appearing on behalf of the petitioner-
respondents defended the judgment of the learned Single Judge by arguing that the
selected candidates did not fulfill the second essential qualification regarding Training
and experience in rural development and extension service and therefore, learned Single
Judge had rightly quashed the appointment of eight selected candidates.
7. It is an admitted fact that the Commission has found two candidates clearly
eligible and as regards other ninety candidates including the writ petitioners the
Commission had some doubt whether theses 90 candidates fulfilled the requisite
qualification prescribed in the Recruitment Rules. The matter has been clarified by the
Government and the Government communicated the decision that those ninety candidates
fulfilled the qualification regarding training in rural development and extension service,
and, therefore, they were clearly eligible for the post of Panchayat Officer and
accordingly, requested the Commission to take interview of those 90 candidates. It may
629
be mentioned here that two petitioners who have filed writ petition were amongst the
ninety candidates whose cases were also considered by the Govt. and found to be eligible
for the post of Panchayat Officer and they were also called for interview and they
appeared before the Commission, but they could not secure the selection and thus failed
in the interview.
8. The qualification prescribed for the post of Panchayat Officer is (i) Degree of a
recognized University and with regard to this qualification there is no controversy.
Second qualification is (ii) Training in Rural Development and extension service. Now
regarding training and experience, the Commission has made a reference with the Govt.
and Govt. after perusing the documents of the 90 candidates were of the view that they
satisfied the requirement of training and experience and accordingly, the Govt. requested
the Commission to take their interview. Where in particular candidates fulfill the
qualification as prescribed in the Recruitment Rules, framed by the Govt. we are of the
view that the interpretation given by the Govt. should be taken as conclusive. We do not
find anything that so far training in rural development and extension service is concerned
a candidate must have a degree/diploma in Rural Development and extension service.
9. We have examined ninety applications forms along with supporting documents
and we have carefully examined the nine candidates who were selected by the
Commission. The Commission has produced all the papers is sealed cover. On perusal
of papers and documents of the nine selected candidates, we have no hesitation to hold
that all these 9 selected candidates have requisite training in rural development and
extension service.
10. Mr. Deb, learned senior Counsel appearing on behalf of the Commission submits
that the Commission was under impression that a degree or diploma will be required as
regards Training in Rural Development and extension service. The Commission have
viewed that Smt. Sanchita Roy who has been selected by the Commission for the post of
Panchayat Officer is a must degree holder in the subject of rural development from Viswa
Bharati and Gopal Ch. Majumdar who appeared in the interview, but failed to get
selection for the post has diploma in Social Work (Social Welfare) from Calcutta
630
University. Mr. Deb accordingly submits that on basis of the diploma and post graduate
degree of the aforesaid two candidates, the Commission was initially of the view that
they strictly fulfill the requisite qualification prescribed in item No (ii) of the essential
qualification. Mr. Deb very fairly submits that the Commission omitted to consider for
complying with the requirement of the second qualification that no degree or diploma is
necessary and that only a training on the subject of rural development and extension
service is sufficient in compliance with the second requirement of the qualification
prescribed in the Recruitment Rules as well as in the advertisement.
11. On a plain reading of the qualification prescribed in the Recruitment Rules and in
the advertisement, we are clearly of the view that training in rural development and
extension service does not necessarily mean that a candidate must be a holder of degree
or diploma in the said subject. Training in rural development and extension service for a
reasonable period under a competent authority is a sufficient compliance of the
requirement of the said qualification. After going through the certificates of the selected
candidates, we have no hesitation that all these nine candidates have requisite training in
rural development and extension service. We have also examined the papers of the writ
petitioners. They were also summoned for interview by the Commission and in fact, out
of the 90 candidates, the petitioners are the two candidates who appeared in the interview
but failed to get selection and they also satisfied the second requirement as prescribed in
the Recruitment Rules.
12. Before dealing with this context, we must keep in view the salient fact that the
writ petitioner as well as contesting successful candidates, appellants herein, was all
found eligible to be called for oral interview. Up-to this stage, there is no dispute
between the parties. The writ petitioners – respondents also appeared at the oral
interview conducted by the Commission who interviewed the writ petitioners as well as
respondents – appellants concerned. Thus the petitioners took a chance to get them
selves selected at the said oral interview. Only because they did not find themselves to
have emerged successful as a result of their performance in the oral interview, they have
filed these writ petitions. It is now well settled by the Apex Court that if a candidate
takes a calculated chance and appears at the interview then, only because the result of the
631
interview is not palatable to him, he cannot turn down and subsequently contend that the
process of interview was unfair or the selection was not proper or the selected candidates
do not fulfill the required qualification. In the case of Om Prakash Shukla vs. Akhilesh
Kumar Shukla, AIR 1986 SC 1043, the Apex Court has clearly laid down the law by a
Bench of three learned Judges of the Apex Court that when the petitioner appeared at the
examination without protest and when he found that he would not succeed in the
examination he filed a petition challenging the said examination, the Apex Court held,
the High Court should not have granted any relief to such a petitioner. Therefore, the
result of the interview test on merit cannot be successfully challenged by a candidate who
takes a chance to get selected at the said interview and who ultimately find himself to be
unsuccessful. It is also to be kept in view that in this petition or in the appeals we cannot
sit as a court of appeal and try to reassess the relative merits of the candidates concerned
who had been assessed at the oral interview not can the writ petitioner successfully urged
before us that they were given a low marks though their performance was better. They
also cannot challenge the qualification of the selected candidates as the qualification of
the 90 candidates has been examined by the Govt. and Govt. has clearly of the view that
they fulfilled the required training and experience so far second conditions of the
qualification is concerned. It is for the interview Committee that amongst others
consisted of the Chairman and the Members of the Commission and the Director of
Panchayat, a departmental representative to judge the relative merits of the candidates
who were orally interviewed in the light of the guidelines laid down by the relevant rules
governing such interviews. Therefore, assessment on merit has made by such an expert
committee cannot be brought in challenge only on the ground that the candidates do not
fulfill the requisite qualification of the assessment was not proper or justified and that
would be the function of the appellate body and we are certainly not acting as a court of
appeal over the assessment made by the Government and Commission. On the aforesaid
ground alone the writ petitions are liable to be dismissed.
13. It is difficult to appreciate the contention of Mr. M.K.Bhowmik, learned Counsel
appearing on behalf of the petitioner respondents that the selected candidates do not
fulfill the requisite qualification. It appears that the Commission had initial some doubt
632
about the qualification of 90 candidates for which a reference has been made to the
Government and the Govt., after considering the papers and documents of the ninety
candidates referred by the Commission was clearly of the view that those 90 candidates
fulfilled the requisite qualifications as prescribed in the Recruitment Rules and
accordingly requested the Commission to take interview of those candidates. Therefore,
the contention of Mr. Bhowmik is devoid of any merit. When the Govt. is satisfied about
the essential qualification of the 90 candidates referred by the Commission, it cannot be
urged with any emphasis that these candidates are not eligible to compete for the said
post. Mr. Bhowmik very fairly submits that if any of the selected candidates have got
requisite certificate regarding training in rural development and extension service, he
does not oppose the selection and appointment of such candidates. Apart from
satisfaction of the Govt. regarding training and experience in rural development and
extension service, we have also gone through the certificate enclosed with the
applications by the respective selected candidates and after going through the certificate,
we also clearly of the view that these selected candidates have requisite training in rural
development and extension service, and therefore, we are completely in agreement with
the Govt. that these selected candidates do fulfill the requisite qualification for
appointment to the post of Panchayat Officer.
14. We have gone through the judgment passed by the learned Single Judge. It
appears that the learned Single Judge took a wrong view that the Recruitment Rules have
been relaxed so as to enable the ninety candidates appear before the Selection Board and
he has also observed that unless the Recruitment Rules is amended by the Government,
no relaxation can be permitted by the Govt. and accordingly, the learned Single Judge
held that the candidates did not fulfill the requisite qualification.
15. After going through the papers and documents we are of the view that in the facts
and circumstances of the case, the Govt. did not resort to relaxation of qualification. The
Govt.’s decision was that the 90 candidates referred by the Commission fulfilled the
requisite qualification both degree from a recognized University as well as Training in
Rural Development and extension service. Therefore, the observation of the learned
Single Judge made against the Commission in Para–12 of the judgment is without any
633
substance. We have also examined the merit list prepared by the Commission produced
by Mr. Deb on behalf of the Commission and we find no illegality or error in the marks
allotted to the candidates who appeared in the interview test.
16. The observation of the learned Single Judge is that the interview was taken on
different dates. Therefore, the Chairman and the Member of the Commission should
have signed the papers after each date of interview. In this respect, it must not be over-
looked that the Commission has submitted final selection list after taking interviews on
different dates and final selection list indicating the marks were signed by the Chairman
and the Member of the Commission on 24.1.1997 and we do not find any illegality in
such final list, simply because it was signed on 24.1.1997. There is also no challenge that
any favour has been shown to any particular candidate by the writ petitioners.
17. Having regard to the facts and circumstances of the case and after hearing the
learned Counsel of all the parties and after going through the papers and documents we
are clearly of the view that there is no illegality in the selection of the nine candidates by
the Commission and their consequent appointments to the post of Panchayat Officer by
the Govt. Accordingly, we set aside the order of the learned Single Judge passed on
12.4.2001 in Civ. Rule 137 of 1997 and Civ. Rule 478 of 1998 and dismiss the writ
petitions. Appeals are therefore allowed. However, in the facts and circumstances of the
case we made no order as to costs.
***
634
UTTARANCHAL PUBLIC SERVICE COMMISSION
635
AIR 2003 SUPREME COURT 4062 [ = 2003 (5) SCALE 73]
Civil Appeal Nos.4281-4289 with 4280, 4279, 4278 of 2003 D.D. 5.6.2003
SHIVARAJ V.PATIL AND ARIJIT PASAYAT, JJ. State of Uttaranchal & Ors. ... Appellants Vs. Sidharth Srivastava & Ors. ... Respondents (A) Constitution of India, Art.323 – U.P. Reorganisation Act (29 of 2000).S. 78(4) – Scope – Selection of candidates by U.P. Public Service Commission (U.P. P.S.C.) prior to formation of State of Uttaranchal – Report sent by U.P.P.S.C. to Governor of U.P. and Governor of Uttaranchal – Need not be laid before Legislative Assembly of State of Uttaranchal under S.78 – State of Uttaranchal have to constitute its own Public Service Commission – Candidates selected by UPPSC prior to formation of State of Uttaranchal could not be appointed by State of Uttaranchal as S.78 does not protect said selection, 831(S/B), made by UPPSC. W.P.Nos.829 (S/B), 795 (S/B), 803 (S/B), 818 (S/B), 830 (S/B), 831 (S/B), 847(S/B), 857 (S/B), 4271 (S/S) of 2001. D/- 6-11-2001 (Uttaranchal) Reversed. New State of Uttaranchal formed on the terms and conditions contained in the Act. The UPPSC of the existing State of Uttar Pradesh shall be the Public Service Commission for the State of Uttar Pradesh as already stated above. It is not the Public Service Commission for the State of Uttaranchal. If it were to be so, provisions could have been made in S.2 read with S.78 of the Act to include State of Uttaranchal within the domain of UPPSC till such time Uttaranchal State Public Service Commission came into existence. Hence, the selection of the candidates made by UPPSC cannot be accepted as selection made for the State of Uttaranchal in the light of S.78(4) of the Act. For the immediate purpose, S.78 of the Act dealing with the Public Service Commission has to be looked into carefully. Under S.78(4), there is no legislative command or compulsion to the Governor of State of Uttaranchal to place report submitted by UPPSC along with the memorandum explaining why advice of the Commission was not accepted. The reason as to why the Parliament provided specifically that it shall not be necessary to cause such report or any such memorandum to be laid before the Legislative Assembly of the State of Uttaranchal would be that the UPPSC not being a joint Commission and it being a Public Service Commission for the State of Uttar Pradesh under S. 2(e) read with S.78(1) of the Act, its report could not be placed before the State Legislature of Uttaranchal. State of Uttaranchal was not in existence when the UPPSC initiated the selection process for the posts in question and no functions could be rendered by pre-existing UPPSC in respect of new State of Uttaranchal. It cannot be said that there was no prohibition from placing the report sent by UPPSC to the Governor of Uttaranchal under S. 78 and memorandum containing explanation before the State Legislature of Uttaranchal. A clear distinction can be seen in the said provision. First part of the provision speaks of UPPSC sending the report to both the Governors and
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second part requires the Governor of Uttar Pradesh alone to cause the report and the memorandum to be laid before the Legislature of State of Uttar Pradesh only. The express parliamentary intention that such a report need not be laid before the Legislative Assembly of the State of Uttaranchal makes the position clear that the Report of UPPSC is not binding upon the State of Uttaranchal. The State of Uttaranchal would have to constitute its own Public Service Commission to meet the Constitutional requirement for the purpose of discharging its duties under Art.315. Further, appointment to services in the State of Uttaranchal shall have to be in consonance with Articles 315, 320 and 323 of the Constitution consistent with autonomy and the freedom of executive action enjoyed by newly born State of Uttaranchal Part VIII of the Act contains Ss. 72 to 78 dealing with services; S. 72 relates to All-India Services and Ss. 73 to 76 with other services; S.77 gives power to Central Government to give directions. Provisions are made in S.78 as to the State Public Service Commission. In this part, provisions are made for protection of service conditions and services of the persons already in service. There is no such provision made in S.78 protecting the selection made by the UPPSC prior to the formation of the new State of Uttaranchal to contend that the candidates selected by the UPPSC shall be appointed by the State of Uttaranchal. Under these circumstances, the communication of the Government of Uttar Pradesh or UPPSC forwarding list of selected candidates to the appellant-State has no legal sanctity or force to bind the State of Uttaranchal so as to compel it to appoint the non-official respondents. W.P.Nos. 829(S/B), 795(S/B), 803(S/B), 818(S/B), 830(S/B), 831(S/B), 847(S/B), 857(S/B), 4271(S/S) of 2001 D/- 6-11-2001 (Uttaranchal) Reversed. [Paras 17, 31) A person placed in the merit list of selected candidates has no indefeasible right to be appointed as held by the Supreme Court. No doubt, there cannot be an arbitrary refusal to appoint a selected candidate. In the instant case, the action of the State of Uttaranchal must be judged with reference to the creation of new State and its functions, obligations and duties to make appointments to the public services within the State on the basis of the recommendations of the Public Service Commission of the State. As is clear from the facts in the instant case there was no advertisement by the State of Uttaranchal, no rules were framed by the State of Uttaranchal, no selection was made by Public Service Commission for the State of Uttaranchal. Hence, the State of Uttaranchal was not obliged to make appointments of the non-official respondents on the basis of the selection made by the UPPSC even though the recommendations were forwarded to the State of Uttaranchal. On the facts it is not a case where the Government of Uttaranchal has refused to make appointments arbitrarily. [Para 21] If any appointments are made by the State of Uttaranchal contrary to law and the stand taken by the State of Uttaranchal and if there is any mala fide, they may affect such appointments on a proper challenge by the aggrieved persons but that does not help the non-official respondents to get them appointed by the State of Uttaranchal. [Para 22] (B) U.P.Reorganisation Act (2000), S.78 – Powers of Govt. – Candidates selected by U.P. Public Service Commission prior to formation of State of Uttaranchal –
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Recommendation forwarded to Govt. of Uttaranchal – Not binding on State of Uttaranchal – Denial, by said Govt. to appoint said candidates on ground that (i) new reservation policy of State of Uttaranchal is different from that of State of U.P. and (ii) practical and legal difficulties “in such a situation” in giving appointments to said candidates – Not illegal – Mere non-reference or omission to mention S.78(4) in said order, does not take away its legal effect – In circumstances question of applying reservation policy as embodied in U.P. Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act (1994) would not arise. W.P.Nos.829(S/B), 795(S/B), 803(S/B), 818(S/B), 830(S/B), 847(S/B), 857(S/B), 4271(S/S) of 2001, D/- 6-11-2001 (Uttaranchal), 831(S/B), Reversed. The separate State of Uttaranchal came into existence on 9-11-2000. U.P. Government forwarded the recommendations of U.P. Public Service Commission (UPPSC) in respect of posts in Hill Cadre to the Government of Uttaranchal. On 29-8-2001, the Government of Uttaranchal issued the order not to appoint the candidates selected by the UPPSC prior to formation of State of Uttaranchal mentioning two reasons that (1) the new reservation policy of the State of Uttaranchal is different from that of U.P. and (2) practical and legal difficulties ‘in such a situation’ in giving appointments to the candidates recommended by the UPPSC. It is true that there is no express reference to S.78(4) of the Act in the aforementioned order. But reading the order as a whole, it shows that after the constitution of the State of Uttaranchal, there has been change in the reservation policy, there were various miscellaneous and legal difficulties in giving appointments to the candidates selected by the UPPSC as forwarded by the Government of Uttar Pradesh and that after thorough consideration, a decision was taken not to appoint the candidates recommended by the UPPSC in various departments of the Government of Uttaranchal. This being the position, while passing the order, the provision of S.78(4) and other provisions of the Act and the relevant constitutional provisions could be said to be kept in mind when there was thorough consideration before taking a decision as stated in the order. Mere non-reference or omission to mention of S.78(4) in the order, does not take away its legal effect. The Authorities have only elaborated in affidavit the reasons to support the said order. It cannot be said that the Authorities tried to justify the aforementioned order by subsequent fresh reasons. The finding by the High Court that the reasons cited by the State Government of Uttaranchal in the order dated 29-8-2001 were not valid, held was not proper. This part, having regard to clear constitutional and legal position that the selections made by UPPSC are not binding on the State of Uttaranchal on the basis of the facts that are not in dispute. W.P.Nos.829(S/B), 795(S/B), 803(S/B), 818(S/B), 830(S/B), 847(S/B), 857(S/B), 4271(S/S) of 2001, D/- 6-11-2001 (Uttaranchal), 831(S/B), Reversed. [Paras 19,28,31] It cannot also be said that the State of Uttaranchal has no right to have its own reservation policy to meet the requirements of the new State having due regard to various factors. Moreover, when the selection made by the UPPSC itself, is not for the State of Uttaranchal and it has no legal or binding effect to compel the State of Uttaranchal to appoint the selected candidates, the question of applying reservation policy as embodied in U.P. Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 does not arise. [Para 20]
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The plea that the change in reservation policy subsequent to the selection cannot come in the way of earmarked vacancies for the Hill Region of U.P. which became an integral part of the State of Uttaranchal would not be tenable, as the selection made by UPPSC is not binding on the State of Uttaranchal. The rules in force at the time of initiation of the selection process have to be applied in making selection but that does not help the non-official respondents in seeking appointments by the State of Uttaranchal on the basis of selection made by UPPSC. [Para 23] Merely because the recommendations received by the erstwhile State of Uttar Pradesh had been sent to State of Uttaranchal and they were not reversed by the Governor for being placed with the reasons before the Assembly of State of Uttar Pradesh under S.78, it cannot be said that recommendations made by UPPSC were binding on Govt. of Uttaranchal. [Para 29] Cases Referred: 1. AIR 1978 SC 851: (1978) 2 SCR 272 – M.S. Gill v. Chief Election Commissioner,
New Delhi. 2. AIR 1990 SC 405: 1990 Lab IC 369: (1990) 1 SCC 411 – P.Mahendran v. State of
Karnataka 3. AIR 1990 SC 1233: 1990 Lab IC 1009: (1990) 3 SCC 157 – N.T.Devin Katti v.
Karnataka Public Service Commission 4. AIR 1991 SC 1612: 1991 AIR SCW 1583: 1991 Lab IC 1460: (1991) 3 SCC 47 –
Shankarasan Dash v. Union of India 5. 1993 AIR SCW 2314 : (1993) 2 SCC 573 – Asha Kant v. State of J & K.
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IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Civil Writ Petition No.159 of 2003 (D/B)
D.D. 25.11.2003
Hon’ble S.H.Kapadia C.J.& Hon’ble M.M.Ghidiyal,J.
Bharat Nandan Pandey ... Petitioner Vs. State of Uttaranchal & Anr. ... Respondents Age relaxation: The petitioner whose date of birth is 9th July 1980 applied for the post of Junior Engineer advertised on 27.11.2001 fixing 27.12.2001 as the last date for receipt of applications and appeared for the examination - As the applicant was below 21 years of age as on 1.7.2001, the cutoff date prescribed for maximum age of 40 years he was not called for interview – Being aggrieved he filed the Writ Petition – Even though the minimum age prescribed under the Recruitment Rules is 21 years of age as only cutoff date prescribing maximum age was mentioned and no cut off date prescribing minimum age was mentioned in the notification the High Court allowed the writ petition and directed to interview all the candidates who have completed minimum age of 21 years as on 27.12.2001 the last date fixed for receipt of applications. Held: The purpose of advertisement is that the candidate should know the eligibility criteria under which they can apply – The advertisement is the projection of the Rules – In the advertisement as only the cutoff date prescribing the maximum age is prescribed and no cutoff date prescribe minimum age is mentioned the Court held that the candidate should not suffer on account of the said mistake. However, the Court directed that this decision should not be cited as a precedent. Case Referred: (2000) 5 Supreme Court Cases 262 - Bhupinderpal Singh and others Vs. State of Punjab and others.
ORDER Rule.
Respondents waive service.
Petitioner is a diploma holder in Civil Engineering from the Government
Polytechnic, Dwarahat. He completed his course in 1999. His date of birth is 9th of July,
1980. On 27th November, 2001, an advertisement was issued about vacancies in the post
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of Junior Engineer. As per the advertisement, the cut of date prescribing maximum age
of 40 years as on 1st of July, 2001, was mentioned. However, no cut off date vis-à-vis
minimum age was mentioned. On 1st of July, 2001 admittedly, the petitioner was below
21 years. However, the petitioner applied for the post because no minimum age was
prescribed in the advertisement. The Admission card was also issued by the Indian
Institute of Roorkee in March 2003, pursuant to which petitioner appeared for
examination. As per the advertisement, the last date for making applications as 27th of
December, 2001. At this stage, it may be mentioned that by 27th December, 2001, the
petitioner had attained the age of 21 years. The petitioner did not receive the call letter
for interview. On making enquiries, the petitioner was informed that the petitioner was
not called for interview as the petitioner was below 21 years as on 1st of July, 2001.
Being aggrieved, the present writ petition has been filed.
ARGUMENTS
Learned Advocate for the petitioner pointed out that in the advertisement, there is
a cut off date of 1st July, 2001, but that is in relation to maximum age. She contended
that there is no cut off date vis-à-vis minimum age and therefore, petitioner ought to have
been called for interview.
On the other hand, learned counsel for the Uttaranchal Public Service
Commission invited our attention to the Emergency Recruitment Rules framed by the
State of Uttaranchal dated 12th of November, 2001 precisely to fill in the vacancies for
the post of Junior Engineers amongst other posts. It was pointed out that under the Rules,
the minimum age of 21 has been prescribed and, therefore, the petitioner was not eligible
to be considered by Uttaranchal Public Service Commission. It was further submitted on
behalf of the Uttaranchal Public Servive Commission that even if the advertisement is
silent on the minimum age, the Rules were specific and therefore, the petitioner was not
entitled to be considered. Reliance was also placed on the judgment of the Supreme
Court in the case of Bhupinderpal Singh and others Vs. State of Punjab and others
reported in (2000) 5 Supreme Court cases 262.
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FINDINGS
On the facts and circumstances of this case, we find merit in the writ petition. Firstly,
it is an admitted position that no minimum age has been prescribed/mentioned in the
advertisement. The purpose of the advertisement is that candidate should know the
eligibility criteria, under which, they can apply. The advertisement is projection of the
Rules. In the present case, there is no cut off date prescribed under the Rules. The cut
off date is given only in the advertisement i.e. 1st July, 2001, and that too only in relation
to the maximum age of 40 years. In the above judgment of the Supreme Court, it has
been held that if cut off date is not prescribed by the Rules, then it may be prescribed in
the Advertisement failing which the last date of receiving of application will be criteria.
In the present case as stated above, the cutoff date is not mentioned in the Rules.
Therefore, one has to fall back on the advertisement which is silent with regard to the
minimum age. It is conceded by the learned counsel for the Uttaranhal Public Service
Commission that mistake has come in the Advertisement. He further submitted that
Uttaranchal Public Service Commission will abide by the orders of this Court. In fact,
we gave adjournment to the Uttaranchal Public Service Commission to suggest a via
media to solve this problems arising on account of the mistake in the Advertisement. We
do not know as to on what basis the advertisement came to be issued. No explanation has
been given as to whether the advertisement was approved by the Uttaranchal Public
Service Commission before it came to be published in the newspapers. Be that as it may,
we do not want the candidates to suffer on account of the above mistake. However, we
make it clear that the order which we propose to pass in this mater will not be cited as a
precedent in future because this order is passed on account of mistake committed in he
Advertisement.
We are fully conscious of the fact that our order may cause some difficulties
because many candidates would come into the filed. However, we have to choose the
lesser evil. We are informed that approximately 100 candidates might come in, if last
date of receipt of application is taken as a criteria both for minimum and maximum age.
The interview process is still going on. We are not directing selection of any candidate.
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In the fact and circumstances of this case, following order:
ORDER
(a) Uttaranchal Public Service Commission is directed to interview all the
candidates who have completed the minimum age of 21 years as on 27th of December, 2001.
(b) Uttaranchal Public Service Commission shall also interview all the
candidates who have reached maximum age of 40 years upto 27th of December, 2001.
(c) This order should not be cited as a precedent in future as it is passed in facts
and circumstances of this case only.
Writ petition is disposed of accordingly.
Office is directed not to issue copy of this order without getting writ petition duly
numbered.
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643
IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No.45 of 2004 (S/B)
D.D. 13.5.2004
Hon’ble P.C.Verma, A.C.J. & Hon’ble Rajesh Tandon, J.
Deepak Kumar & Others ... Petitioners Vs. State of Uttaranchal & Others ... Respondents Recruitment - Operation of the Select List: The petitioners were among 92 successful candidates selected against 92 vacancies for the post of Assistant Engineers (Civil) in P.W.D. and Assistant Engineers (Electrical & Mechanical) in the Department of Rural Engineering Services pursuant to the examination conducted on 8.2.2002 – 61 candidates out of 92 were appointed and remaining candidates including the petitioners were not appointed – Aggrieved by the same the petitioners filed this Writ Petition – The State Government contended that quota for direct recruits 58.34% under the old C&R Rules was reduced to 50% under the new Rules of 2003 and consequently, there was reduction in the number of vacancies – The High Court in view of the fact that the select list was accepted by the State Government and partly operated allowed the writ petition and directed the respondents to issue appointment letters in favour of the petitioners in pursuance of the approved selection list published on 17.6.2003. Held: When the recommendations in accordance with the selection made by P.S.C. were accepted by the State Government, the selectees acquire vested right and their appointments have obtained finality. More so, part of the list having been accepted, the other candidates have a right to seek writ of mandamus in pursuance of their approval by the Government. Case referred: AIR 1991 S.C. 537 – Kumari Shrilekha Vidyarthi etc. Vs State of U.P. & Ors.
ORDER By the present writ petition the petitioners have prayed for the issue of a writ in
the nature of mandamus commanding the respondents to issue the appointment letter to
the petitioners in order to merit and preference according the select list.
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Brief facts giving rise to the present writ petition are that the Public Service
Commission, Uttaranchal thereinafter referred to as Commission, published issued an
advertisement for holding Combined State Engineering Services Examination 2002
showing the vacancies for the post of Assistant Engineers (Civil) in the Public Works
Department and Assistant Engineers (Electrical & Mechanical) in the Department of
Rural Engineering Services and Rural Development and Panchayat Raj Departments.
The vacancies were mentioned in the advertisement along with reservation.
Petitioners have stated that they have also submitted their applications to the
Commission to participate in the examination of Combined State Engineering Service.
According to the petitioners written examination was held by the Commission and the
candidates who passed the written examination were called for interview for final
selection. Petitioners have further submitted that before holding the interview the
Commission called for preferences for appointment in various departments from the
successful candidates of combined list. Therefore, on 17.6.2003, the Commission issued
a select list merit wise and on the basis of preferences given by the petitioners and other
selected candidates. The same was sent to the Government for approval and thereafter
appointment letters were issued to the successful candidates by the concerned
departments. The contents of the select list issued by the Commission with respect to the
petitioners are quoted below:
[Omitted as it is in Hindi]
Learned counsel for the petitioners have made a grievance that on 20.2.2004 the
Public Works Department issued letter for appointment according to the list sent by the
Commission to the successful candidates totaling to 61 from the 92 successful candidates
against 92 vacancies. Similarly, on 12.2.2004 Department of Rural Engineering Services
and Rural Development & Panchayat Raj Department have also issued appointment letter
to the candidates who are lower in merit. The contents of the appointment letter are
quoted below:
[Omitted as it is in Hindi]
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Petitioners have submitted that when they came to know that the appointment
letters have been issued to the successful candidates without following the procedure of
preference and the candidates who got less marks from the petitioners were shifted to the
other departments while the petitioners who are higher in merit according to the merit list
issued by the Commission, then the petitioners approached the higher authorities by
making their grievance. Petitioners have submitted that the action of the Government,
therefore, is wholly unreasonable.
A counter affidavit has been filed by the State wherein in paragraph No.7 of the
said counter affidavit it has been stated that the Public Works Department has made
requisition to the Commission for conducting the examination 8.2.2002. At that time the
entry quota for direct recruits was 58.34% in the prevalent “United Provinces Services of
Engineers (building and road branch) class 2 Rules 1936” (as amended). The State has
notified new service rules as on 25.4.2003 in which the direct entry quota is 50% of the
total Cadre strength. The cadre strength for Assistant Engineer (Civil) is 193 and 19 for
Assistant Engineer (E & M). Thus the direct quota for A.E(Civil) is 97 and A.E. (E&M)
is 10. Only 61 vacancies in Assistant Engineer (Civil) actually exist. Therefore,
appointment letters to 61 candidates in order of merit and subject to reservation policy of
the State Government have been issued vide order dated 20.2.2004. It is pertinent to state
here that 33 optees of Uttaranchal Assistant (Civil) and three A.E. (Civil) (permanent
resident of Haridwar district are serving in Uttaranchal against the direct entry quota.
Likewise 06 Assistant Engineers (E&M) optees of Uttaranchal are serving in Uttaranchal.
It was further submitted by the state Government that in AE (E&M) no vacancy
exists as on date, resulting no issuance of appointment order of Assistant Engineer
(E&M). The Cadre allocation has not been finalised by the Government of India till
date. Finally how many officers at Assistant Engineers level out of these optees will be
allotted to the State of Uttaranchal by Government of India is not known.
The State Government has further submitted that as and when the vacancies
anticipated at the time of advertisement are available the candidates from the select list
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shall be given appointment in order of merit and subject to the reservation policy of the
State Government.
The respondents have carved out a new case in their counter affidavit against the
terms of the advertisement made on 9th August 2002. The petitioners having been
selected and their selection having also been approved as will appear from the select list
published on 17th June 2003. Therefore, as having been approved the same cannot be a
matter of change so as to cause injustice to the petitioners.
In reply to the contents of the counter affidavit filed by the respondents the
petitioners have filed a rejoinder affidavit and it has been reiterated that single selection
list of the Engineers were sent to the Government for approval and there is no reason not
to issue appointment letters and the select list has to be accepted in toto.
The stand of the Government that the State has modified new service rules as on
25.4.2003 in which direct entry quota is 50% of the total cadre strength and cadre
strength of the Assistant Engineer (Civil) is 103 and 19 for Assistant Engineer (E&M)
and thus direct quota for the A.E.(Civil) is 97 and A.E.(E&M) is 10 and only 61
vacancies in A.E.(Civil) actually exists is against the advertisement. Total 89 vacancies
towards A.E.(Civil) and 03 vacancies towards A.E.(E&M) has been shown towards
Public Works Department and in other departments the vacancies have been shown as
under:
[Omitted as it is in Hindi]
We are of the opinion that when the recommendations in accordance with the
selection made were accepted by the State Government, the selectees acquire vested right
and their appointments have obtained finality. More so, part of the list having been
accepted, the other candidates therefore have a right to seek writ of mandamus in
pursuance of their approval by the Government.
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In Kumari Shrilekha Vidyarthi etc.Vs State of U.P. and others reported in AIR
1992 S.C. 537, it has been held as under:
“It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with the private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind.”
We, therefore allow the writ petition. A writ of mandamus is issued directing the
respondents to issue appointment letters in favour of the petitioners in pursuance of the
approved selection list published on 17.6.2003.
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IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No.761 of 2004 (M/B)
D.D.18.8.2004
Hon’ble Shri. V.S.Sirpurkar, C.J. & Hon’ble Shri. J.C.S.Rawat, J. Pradeep Singh ... Petitioner Vs. State of Uttaranchal & Others ... Respondents Recruitment – Educational Qualification: The application of the petitioner who was a candidate for Uttaranchal Civil Services Examination advertised as per the advertisement fixing the last date for submission of application as 16.9.2002 was rejected as per letter dated 20.7.2004 after the petitioner cleared the preliminary examination held on 28.9.2003 and became eligible to appear for the Main Examination to be held on 26.8.2004 on the ground that the petitioner did not have the minimum qualification (Bachelor Degree) as on the last date fixed for receipt of applications – The petitioner challenged the same on the ground that when the preliminary examination was held on 28.9.2003 he was a graduate, having passed B.A. examination held on 7.7.2003 – As the petitioner was admittedly not a graduate as on the last date fixed for receipt of applications the High Court dismissed the writ petition holding that the petitioner could not have applied for the post when he was not a graduate as on the last date fixed for receipt of applications. Held: Unless the candidate has actually passed the graduation which is the minimum qualification prescribed for the post he cannot apply for the post in the expectation of passing the said examination during the course of preliminary/final examinations.
ORDER 1. Heard finally with the consent of the parties. 2. The petitioner herein challenged the rejection letter dated 20.7.2004 by which his
form for Uttaranchal Civil Service Examination held by the respondent – Uttaranchal
Public Service Commission, has been rejected.
3. An endorsement came to be issued by the Uttaranchal Public Service Commission
for a number of posts. A preliminary examination for this purpose was to be held in the
month of December, 2002 and for that forms were invited and the last date for the
submission was 16th September, 2002. The petitioner, who was then a student of final
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year of the Bachelor of Arts, filled up the form in pursuance of the advertisement and
ultimately preliminary examination was held not on the date on which it was advertised,
but on 28.9.2003. The petitioner also cleared that examination. The final examination is
to be held on 26.8.2004. However, before that the petitioner was informed by the
impugned communication that his form itself was rejected, as he did not have a minimum
qualification as per the advertisement. The petitioner challenged this on the ground that
on the date when the preliminary examination was held i.e. 28.9.2003, he had already
passed B.A. examination on 7.7.2003 and, therefore, he was graduate, which was
minimum qualification for appearing in the preliminary examination and it was also the
minimum qualification for being selected to the post for which he had applied.
4. Notice was issued to the respondent Uttaranchal Public Service Commission and
counter affidavit has been filed before us along with the advertisement, as also the form
submitted by the petitioner before the preliminary examination. It is an accepted position
that though in the advertisement, it was made out that the examination would be held in
the month of December 2002 or January, 2003, in reality that examination has been held
on 29.8.2003. The respondent – Public Service Commission, however, pleads that it was
apparent from the advertisement as also the form, that on the date when the form was
filled or at least till the last date when the form could be filled in, the petitioner must hold
necessary qualification i.e. graduation. The learned counsel further points out that on the
date the form was filled up by the petitioner i.e. 1.9.2002, the petitioner was not a
graduate and it is for this reason that the form was rejected. The learned counsel also
points out in the advertisement itself, it has been made out vide clause no.18 that if any
defect were detected in the form, the said form could be rejected, even at the stage of
final examination.
5. The learned counsel for the petitioner very vehemently argues before us that it
was not clear from the advertisement as to what was the cut off date for holding the
minimum qualification. Therefore, we went through the whole advertisement, which has
been put before us by the learned counsel for the respondent – Uttaranchal Public service
Commission. In the opening words all that is said is that a preliminary examination will
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be held for selection of Civil Services posts under the Public Service Commission. In
paragraph 2, it is specifically mentioned that for the posts at the serial numbers given
therein, the graduation would be minimum educational qualification. It is true that there
is no specific cutoff date and the only cut off date, we find is in clause 5, which is for
minimum age and that cut off date is 1.7.2002, on which the candidate must complete the
age of 21 years. However, the learned counsel points out that in the form which has been
supplied itself, there is a specific declaration vide clause. The declaration in Hindi reads
as under.
[Omitted as it is in Hindi]
6. The translation of this in English is “I hereby declare that I have read the
qualifying conditions carefully and they are acceptable to me and I fulfill all those
conditions. Learned counsel for the respondent points out that this form was signed by
the petition on 1.9.2002, when he was not a graduate. Therefore, according to the learned
counsel on the date when the form was filled or even on the last date of submission of the
form, the petitioner was not a graduate and he had not fulfilled the conditions of
qualification of being graduate. The learned counsel invites our attention to the claim
made by the petitioner that he would be a graduate in 2003. We have seen the form
ourselves and are satisfied that at least in the form there is a clear indication given that a
candidate must fulfill the condition of minimum qualification on the date the form is
filled or at least on the last date the form was to be submitted i.e. 16.9.2002. There can
be no dispute that on the date when the form was filled, the petitioner did not fulfill the
qualification. He was admittedly not a graduate on that date. We wonder as to how the
petitioner could have written that he would be a graduate in 2003, because at that time he
had not even appeared in the examination. It comes in the argument that he ultimately
became graduate on 7.7.2003. That may be so. However, the fact remains that on the
date when the form was filled, the petitioner did not have the required minimum
qualification of graduation. Once this position is cleared, it goes without saying that the
petitioner had a basic disqualification in as much as he had not passed his graduation
examination. A further argument is advanced by the learned counsel for the Uttaranchal
Public Service Commission and he points out that there were specific instructions given
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by the Public Service Commission for helping the candidates to fill up the forms. We
find that in so far as the educational qualifications are concerned, the candidates who
were graduate, were specifically directed to fill up the circle in front of the column
graduation and if the candidate has past post graduate, then he was to blacken circle in
front of the column post graduate. If the candidate is both graduate and post graduate,
then he was directed to blacken the two circles in front of the two relevant columns. The
learned counsel points out that the petitioner though has blackened the circle, he has,
however, mentioned in bold letters the year passing up as 2003. If the form was filled up
in 2002, it is obvious that the petitioner could not have mentioned 2003 as the year of
passing. Learned counsel also points out that it is specifically written in instruction no.12
that [Omitted as it is in Hindi]
The English translation of this would be that the candidate must write the year of passing
graduation/post graduation examination. From this learned counsel says that unless the
candidate has actually passed he graduation, he could not be expected to write the year of
passing in the expectation of passing the said examination. From this it is clear that every
candidate aspiring to appear for preliminary examination had to be a graduate which was
the minimum qualification. The petition must fail on this ground alone.
7. However, the learned counsel for the petitioner very vehemently suggests that in
this case the form was accepted, the candidate was allowed to appear in the examination
and as an irony of fate, the petitioner had passed the preliminary examination also and
qualified for final main examination to be held on 26.8.2004. The learned counsel,
therefore, says that we should take sympathetic attitude and allow the petitioner to appear
in the final examination. We are afraid, we cannot do so. By that we should be doing
injustice to some other, who also could have appeared like the petitioner. Rules are the
rules and they cannot be ignored. We cannot, therefore, help the petitioner by accepting
the request made by the learned counsel for the petitioner.
8. The petition has no merits. It must be dismissed. It is dismissed without any
orders to the costs.
***
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IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No.103 (S/B) of 2004
D.D. 27.10.2004
HON’BLE V.S.SIRPURKAR, C.J., HON’BLE P.C.VERMA, J.
Dr. Smt.Kamla Fuloria ... Petitioner Vs. State of Uttaranchal & Others ... Respondents Recruitment - Eligibility: The petitioners who are working as Visiting Lecturers have challenged Uttaranchal Regularisation of Ad-hoc Appointments (On the posts within the purview of Public Service Commission) Rules, 2002 and the advertisement dated 14.3.2004 for 200 posts of Lecturers classifying the posts for open category, SC, ST etc. – The non-official respondents who are working as ad-hoc Lecturers have among other things contended that the petitioners being Visiting Lecturers have no locus standi to file these petitions – The High Court has upheld the contentions of the respondents and dismissed the writ petition. Held: Since the petitioners were not erstwhile Uttar Pradesh employees and since the Regularisation Rules were meant only for those who were erstwhile U.P. ad hoc employees, the petitioners have no locus standi to challenge the impugned Regularisation Rules and also the cut off date 30.6.1998 fixed for consideration of ad hoc appointments made prior to that date for the purpose of regularisation. Further held that the Government Order dated 18.7.2001 passed by Uttaranchal Government fixing percentage of reservations under different categories which varied from percentage of reservations under the U.P. Public Services (Reservation of SC, ST & OBC) Act, 1994 is valid. Cases Referred: 1. (1986) 3 SCC 156 – Central Inland Water Transport Corporation Limited & Anr. Vs.
Brojo Nath Ganguly & Anr. 2. AIR 1991 SC 101 – Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress &
Ors. 3. 1995 Supp (4) SCC 182 – Khagesh Kumar & Ors. Vs. Inspector General or
Registration & Ors. 4. (2000) 8 Supreme Court Cases 25 – Rudra Kumar Sain & Others Vs. Union of India &
Ors.
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ORDER 1. This judgment shall dispose of all the writ petitions mentioned above since the
controversy involved and the reliefs claimed are identical and also since common
arguments were advanced in all these writ petitions. In writ petition No.89 of 2004 (S/B),
the following prayers are made:
i. To issue a writ, order or direction in the nature of certiorari for quashing/setting aside the advertisement dated 14.3.2004 (Annexure-15 to the writ petition) issued by the Public Service Commission, Uttaranchal at Haridwar. ii. To issue a writ, order or direction in the nature of mandamus to restrain the respondents from interfering in the functioning of the petitioners as Lecturers in their respective subjects in question till such time their case for regularisation is considered in accordance with law. iii. To issue a writ, order or direction in the nature of mandamus declaring the cut off date 30.6.1998 fixed by Rule 4(1) of Uttaranchal Regularisation of Ad-hoc Appointments (On posts within the purview of Public Service Commission) Rules, 2002 as arbitrary and illegal. iv. To issue a writ, order or direction in the nature of mandamus directing the respondents to consider the case of the petitioners for regularisation by treating the cut off date as 7.8.2002 i.e. the date of notification of the said Rules and regularise the services of the petitioners in their respective subjects, subject to their fulfilling the eligibility criterion. v. To issue a writ, order or direction in the nature of certiorari for quashing the Government orders dated 27.1.2001, 12.7.2002 and 10.7.2003 (Annexure No.2, 6 and 8 to the writ petition). vi. To issue a writ, order or direction in the nature of mandamus commanding the respondents to pay salary in the regular pay scale as prescribed for the regularly selected lecturers in the State along with all consequential benefits including the arrears of salary w.e.f. the date of appointment of the petitioners. vii. To issue a writ, order or direction in the nature of mandamus commanding the respondents to pay to all the petitioners their arrears of salary in respect of the period of summer vacation, which has illegally been withheld by the respondents in violation of the judgment of the Apex Court in the State of Haryana Vs Rattan Lal.
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viii. To issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case, so that justice be done between the parties. ix. To award cost of the writ petition throughout to the petitioners as against the respondents. x. To issue a writ, order or direction in the nature of certiorari for quashing the Government order dated 18.7.2001 (Annexure 12 to the writ petition).
2. Basis Facts and the Challenge: All the petitioners are visiting lecturers in various colleges. They were appointed
to these posts on various dates from the year 2001. There were 185 posts of lecturers
lying vacant in 34 Government Degree Colleges and the post Graduate Colleges in the
State of Uttaranchal and, therefore, a policy decision was taken by the State Government
that the vacancies would be filled up vide a Government Order dated 27.1.2001. This
decision was taken as the education system was adversely affected because of the paucity
of lecturers and the possible delay in appointment on these posts and also in public
interest. However, this arrangement was to be only till selection and the availability of
regularly appointed lecturers on the following conditions:
1. That such visiting lecturers should have the qualifications fixed by the U.G.C. i.e. the University Grants Commission and they were to receive Rs.100/- per hour to the maximum of Rs.5,000/-.
2. That the maximum age limit in their case was to be 35 years.
3. That they should be selected by a screening committee consisting of the
Joint Director, Higher Education as its Chairman along with the Subject Expert and the Principal of the concerned College.
4. That the contract of appointment of such a selected candidate would
come to an end on appointment of a regularly selected candidate.
5. That such visiting lecturers would be selected and invited only against such posts, which are full-time vacant posts.
6. That the honorarium paid to such lecturers would be out of Head Non-
plan relating to accepted posts.
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7. Such selected candidate, prior to commencement of his duty, should give an undertaking that on the basis of the selection he/she would not insist for regularisation or, as the case may be, the regular selection.
In pursuance of this decision, an advertisement was published in the newspapers
in the third week of February, 2001 notifying the 185 vacancies. A second advertisement
was published on 17.8.2001. In the first advertisement, the age limit was shown as 35
years and perhaps, as the enough number of candidates were not available, in the second
advertisement, the age limit was increased to maximum of 40 years as on 31.7.2001. In
so far as the qualifications are concerned also, in the second advertisement a slight
change was effected suggesting therein that even the candidates, who had obtained their
Ph.D. by year 2002, were now declared to be qualified. This was in sharp contradiction
to the earlier advertisement, where a candidate had to have the qualifications as fixed by
the University Grants Commission i.e. Doctorate/M.Phil Examination by 1993. As stated
earlier, after the selection the petitioners were appointed to work as lecturers in various
colleges and they all joined their duties. The appointment orders came to be passed in
case of practically all the petitioners in the month of August, 2001. Again, on 12th July,
2002, another Government Order No.624/Higher Education/2002-03(18)/2002 was
issued, whereby such visiting lecturers, who were selected and working in the academic
session 2001-02 were to be continued for the academic session 2002-03 and they would
be nomenclatured as Visiting Lecturers. It is to be seen that in their appointment for the
year 2001-02, the nomenclature of their post was Visiting Faculty. Their appointments
were to be continued for the period of 1.7.2002 to 30.4.2003. They were to be paid
Rs.250/- per hour instead of Rs.100/- per hour and the maximum pay was to be
Rs.8,000/- instead of Rs.5,000/-. Every visiting lecturer had to remain present on all the
working days and they were to get the leave maximum to the extent of 10 days in the
contract period. Every visiting lecturer had to deliver minimum 40 lecturers a month and
had to complete the norms. If, for any reason, the norms were not reached, such norms
had to be completed in the next month. All the petitioners were invited and were directed
by a letter dated 20.7.2002 to report to the concerned Principal. This arrangement
continued till the end of the academic session 2002-03 and the Government, thereafter,
came out with another Government Order dated 10.7.2003, whereby such visiting
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lecturers, who were working in the academic session 2002-03 were to be continued for
the academic session 2003-04 and their contract period was to be between 1.7.2003 till
30.4.2004. It was provided that if after 30.4.2004, there was any necessity, then they
could be continued for the work relating to examinations, for which they were to be paid
at the rate or three lecturers for the examination of three hours. All the lecturers were to
be paid the honorarium of Rs.8,000/- per month (the condition of Rs.250/- per lecture
was not to be found in this Government Order). All the other conditions were to be
identical. It was, however, further provided in the Government Order, that fresh
candidates would not be appointed as visiting lecturers as against the vacant posts and for
such fresh vacancies, retired teachers could be invited. Accordingly, all the petitioners
were intimated by a letter dated 22.7.2003 for reporting to their Principals. It was,
however, informed that if they fail to report, their appointment would be treated as
cancelled. It seems that some of the lecturers were transferred from one College to other
for the academic session 2003-04.
3. It is to be noted that the State Government has framed rules called Uttaranchal
Highr Education (Group A) Service Rules, 2003 [Uttaranchal Uchchattar Shiksha
(Samuh ‘Ka’) Sewa Niyamawali, 2003] under the proviso to Article 309 of the
Constitution of India vide notification No.703/HE/2003-3(14) 2001 dated 25.8.2003.
These were the rules providing for the cadre posts as also providing for the modality for
recruitment to the cadre along with the qualifications and the procedure for selection,
appointment, pay etc. In short, these were the service rules. Under these rules, the term
of ‘visiting lecturer’ has been defined vide Rule 3(n) as under:
“Visiting Lecturer means the invited candidates for teaching in Government Degree Colleges since academic session 2001-02 on contract under G.O. 457/H.R.D./2001-3(6) 2000 dated 27.1.2001.”
Vide Rule 4, the cadre strength is fixed and it provides 883 posts for the
Lecturer/Lecturer, Senior Scale/Lecturer, Selection Grade. Rule 5 provides for the
modality of recruitment and in Category IV(b), it is provided that the lecturer shall be
recruited by direct recruitment through Public Service Commission, Uttaranchal. Rule 8
provides the academic qualifications for the post of lecturer as the qualifications
prescribed by the University Grants Commission and approved by the Government of
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Uttaranchal. Rule 9 is, however, extremely important. It is under the heading
‘preferential qualification’. We are not concerned with Rule 9(a), (b) and (c). Rule 9(d),
(e) and (f) are, however, quoted below in view of their relevance:
“9(d) Candidates working as Visiting Lecturers in Government Colleges of the State shall get maximum five percent bonus marks of the total marks obtained in the Examination/interview provided the candidates working as Visiting Lecturer possesses the minimum qualifications prescribed by the Government for the post of Lecturer; (e) Candidates working as Part-time Lecturer in Govt. College of the State, if eligible, shall get maximum five percent bonus marks of the total marks obtained in the Examination/Interview provided the Part-time Lecturer possesses the minimum qualifications prescribed by the Government for the post of Lecturer; (f) Only those Visiting Lecturers & Part-time Lecturers shall be given preference in case of selection for the post of Lecturer in Government Colleges, who are working as above on or before the date of notification of Service Rules. This is not a permanent provision.”
Rule 10 provides for the maximum and minimum age for the direct recruitment of
lecturers, which is 21 years minimum and 35 years maximum on January 1 of the year in
which the recruitment is to be made. Rule 10(b) is, again, relevant because it concerns
the working Visiting Lecturers like the petitioners and it runs as under:
“10(b) The working Visiting Lecturers and Part-time Lecturers in
Government Colleges of the State who possess prescribed qualifications will be given relaxation in the maximum age limit to the extent needed for the post provided the Visiting Lecturer and Part-time Lecturer were under the prescribed age limit at the time of initial appointment as Visiting Lecturers/Part-time Lecturers.”
In short, these rules recognise the class of Visiting Lecturers and also provide
preferential treatment to them in the matter of their regular selection as against the post of
Lecturer.
4. Even before these Rules came into existence, the State Government on 7.8.2002
has passed The Uttaranchal Regularisation of Ad-hoc Appointments (on posts within the
purview of the Public Service Commission) Rules, 2002 (to be called as ‘regularisation
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rules’ for short). These regularisation rules are in exercise of he powers under Article
309 of the Constitution of India. Rule 4 of the regularisation rules runs as under:
“4. Regularisation of ad-hoc appointments. – Any person who –
(i) was directly appointed on ad-hoc basis before June 30th,1998 and is continuing in service as such on the date of commencement of these rules;
(ii) possessed requisite qualifications prescribed for regular
appointment as the time of ad-hoc appointment; and
(iii) has complete or as the case may be, after he has completed three years service as such, shall be considered for regular appointment in permanent or temporary vacancy, as may be available, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant rules or orders.
(2) In making regular appointments under these rules, reservations,
for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and other categories shall be made in accordance with the orders of the Government in force at the time of recruitment.
(3) For the purpose of sub-rule (1) the appointing authority shall
constitute a Selection Committee. (4) The appointing authority shall prepare an eligibility list of the
candidates arranged in order of seniority, as determined from the date of order of appointment and if two or more persons are appointed together from the order in which their names are arranged in the said appointment order, the list shall be placed before the Selection Committee along with the character rolls and such other records of the candidates as may be considered necessary to assess their suitability.
(5) The Selection Committee shall consider the cases of the
candidates on the basis of their records referred to in sub-rule (4). (6) The Selection Committee shall prepare a list of the selected
candidates, the names in the list being arranged in order of seniority, and forward it to the appointing authority.”
It is needless to mention here that the post of a Lecturer in the Government
Colleges is under the Public Service Commission. Under the above mentioned
659
regularisation rules, as would be clear from the language of Rule 4, which we have
quoted above, the person who was directly appointed on ad hoc basis prior to 30.6.1998
and who was continuing in service on the date on 7.8.2002 possessing the requisite
qualification for regular appointment at the time of his ad hoc appointment and had
completed three years of service or after he completes three years of service, was made
entitled to be considered for regular appointment in available permanent or temporary
vacancy. Such consideration was to be on the basis of his record and suitability for
which purpose, an eligibility list was to be prepared in the order of seniority, in keeping
with Rule 4(4) of the regularisation rules, by a Selection Committee made for that
purpose.
5. As a sequel to the Uttaranchal Higher Education (Group A) Service Rules, 2003,
an advertisement came to be issued on 14.3.2004 for 200 posts of Lecturers. Out of
these 200 posts, 45 posts are reserved for the Scheduled Castes, 1 post for the Scheduled
Tribes, 23 posts of the Other Backward Classes and 131 posts are meant for open
category. It is specifically provided in clause (4) of Preferential Qualification that the
working visiting lecturers would be awarded 5% of the total marks earned by them as
bonus provided such visiting lecturers are qualified and working as visiting lecturers.
Significantly enough, it is after this advertisement is issued that the petitioners have
come out to file the present writ petitions challenging the aforementioned regularisation
rules and more particularly, Rule 4 therein, which provides for the consideration of the
ad hoc appointments made prior to 30.6.1998 for the purpose of regularisation.
6. Challenge of the petitioners and the rival claims of the respondents:
i. The petitioners say that the fixation of cut off date as 30.6.1998 is arbitrary as
firstly, there was no rhyme or reason and also there was complete absence of material as
to why this date was fixed and thus, it offends Article 14 of the Constitution of India.
Shortly stated, their strategy appears to be that if this date is found to be arbitrary, then
the date on which the regularisation rules came into existence, namely, 7.8.2002 would
be the cut off date and thereby, all of them would get a right to be considered against the
permanent or temporary vacancies on the basis of their record and suitability before any
regular appointment is made in such vacancies.
660
ii. The second leg of the challenge is that these rules have been passed by the State
of Uttaranchal, which, itself, came into being on 9.11.2000 in pursuance of the U.P.
Reorganisation Act. If on 30.6.1998, the State of Uttaranchal, itself, was not there, then
it could not have fixed a date prior to its creation as a cut off date.
iii. It is also the challenge that in providing the service conditions of the employees,
who were the employees of the erstwhile State of U.P., the rules have an extra-territorial
legislation and are bad for that reason.
7. With this challenge to the regularisation rules, the petitioners have also
challenged the aforementioned advertisement dated 14.3.2004 on the ground that it is in
complete derogation to the percentage of reservation in as much as it is not in keeping
with the percentage provided by the U.P. Reservation Act, 1994 nor is it in conformity
with the reservation policy fixed by the State of Uttaranchal. It is pleaded in this behalf
that there is a Government Order passed on18.7.2001, whereby the State of Uttaranchal
had fixed the following quota for the different categories, that was:
Scheduled Castes - 19%
Scheduled Tribes - 4%
Other Backward Classes - 14%
Total - 37%
The contention of the petitioners is that before the reorganisation of the State of
Uttar Pradesh, the provisions of U.P. Reservation Act, 1994 were applicable in the
territories now comprised within the State of Uttaranchal and by virtue of
U.P.Reorganisation Act, 2000, the said Act was still applicable so long as it is not
repealed by the successor State of Uttaranchal. They, therefore, contend that, firstly, the
State of Uttaranchal could not have passed the Government Order dated 18.7.2001
without passing the Legislation on the subject. It is pointed out that the different
percentages, then the once covered under the U.P. Reservation Act, 1994, could not have
been effected by merely issuing a Government Order under Article 162 of the
Constitution of India without passing a proper Legislation. In support of their
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contention, the petitioners heavily rely on Section 86 of the U.P. Reorganisation Act and
suggest that a change in the reservation policy could have been effected only by
legislature and not by an executive order. Thus, as if this is not sufficient, the
petitioners, further, argued that even if the Government Order dated 18.7.2001 was valid,
the advertisement was not in keeping with the percentages therein in respect of the
reservations. In short, the petitioners want to thwart the efforts on the part of the
Government to fill up the posts by regularly selecting and appointing the lecturers and
instead, claimed a writ for their own regularisation on the basis of the regularisation
rules.
8. The petitioners do not stop here and claimed that though they had agreed to work
on lesser salary by applying the principle of equal work equal pay, they should have
been paid the salary of a lecturer in the regular scale and should have also been aid the
salary for the summer vacations. It is contended that merely because the petitioners
were not in a position to bargain with the Government owing to their unemployedness,
they could not be coerced into working as lecturers and doing the identical job of the
lecturers on much inferior service conditions. The petitioners, therefore, prayed for the
direction to the Government for payment of their salary at the rate of regular scale made
applicable to the petitioners along with the summer salary etc. on the basis of the
principle of Equal Work Equal Pay.
This, in short, is the scope of the writ petitions as they are filed. It is at the fag
end of the arguments that the petitioners also prayed for quashing the Government Order
dated 18.7.2001 relating to the reservation policy applicable to the State of Uttaranchal.
This was necessitated because during the arguments, it was pointed out that there was no
challenge to the validity of that Government Order.
Shortly stated, the petitioners have the following prayers:
1. To quash clause (4) of the aforementioned regularisation rules and consequently regularise the services of the petitioners as lecturers.
2. To quash the Advertisement dated 14.3.2004
662
3. To quash the Government Order dated 18.7.2001
4. To direct the Government to pay their arrears of salary to be calculated on the basis of the regular pay scale of the lecturers.
9.i. As against this, the respondents very vehemently contend that the petitioners,
who were employed as visiting faculty to begin with and were continued as visiting
lecturers, are a definite class as contemplated and defined under the Uttaranchal Higher
Education (Group A) Service Rules, 2003 (from hereinafter called as ‘Education Service
Rules’ for short) and they could not possibly claim the status of ad hoc lecturers. It is
pointed out that none of the petitioners was an ad hoc lecturer in the erstwhile State of
U.P. and they have all been employed only after the State of Uttaranchal came into being
on 9.11.2000 and as such, regularisation rules were not meant for the persons like the
petitioners and in fact, those rules were made only for the persons in ad hoc services. It
is pointed out that while the Education Service Rules are meant specifically for those in
education service, the regularisation rules are the general rules meant for all the services
coming under the purview of Public Service Commission. As a sequel to this argument,
it is contended that the petitioners have no locus whatsoever to challenge the
regularisation rules as they are meant for a totally different class. The further argument
of the respondents is that if the petitioners are not to be governed by the regularsiation
rules at all, they could not possibly find any fault with Rule 4 therein and claim
consideration for regularisation on the basis of that Rule. The respondents want to nip
the petitioners’ case in the bud by saying that they cannot have any possible challenge
against the regularisation rules. It is further reiterated that the regularisation rules and
more particularly, Rule 4 by its plain language, itself, provides that it is meant only for
persons, who were appointed in the erstwhile State of U.P. by way of ad hoc
appointments. The respondents point out that there is an essential difference between
the ad hoc appointments and the contractual appointments. Relying on the definition of
visiting lecturers in the Education Service Rules, the respondents submit that all the
petitioners, who were appointed on contract in the year 2001, would by themselves make
a class not comparable to the class of ad hoc employees. For that matter, it is contended
that there was no ad hoc lecturer available in the State of U.P.
663
ii. It is then contended by the respondents that there are definite reasons and
material available to fix a cut off date at 30.6.1998. It is, then pointed out that by reason
of Section 74(2) of the U.P. Reorganisation Act, the State of Uttaranchal has its
sovereign legislative powers as also the executive powers to pass the rules applicable to
such employees, who have become or would become the employees of the State of
Uttaranchal shedding of their character as the employees of the State of U.P. and merely
because the State of Uttaranchal came into being on 9.11.2000, it cannot be said that it
has no power to provide a cut off date prior to its coming into being. It is also contended
by the respondents that there will be no question of cut off date being arbitrary and more
particularly, there cannot be a comparison between the two separate classes and that is
how the State wants to repel the challenge under Article 14 of the Constitution of India.
iii. It is then contended by the respondents that there will be no question of any
extra-territorial legislation as the employees, in respect of whom these regularisation
rules have been framed, had already shed-off their character as the employees of the
State of U.P. and they, for all the practical purposes, would become the employees of the
State of Uttaranchal.
Even at the cost of repetition, the State Government makes a basic challenge to
the petitions on the ground that these rules were not applicable to the petitioners at all.
10. Regarding the challenge to the advertisement, it is pointed out that because of the
rosters and the availability of the posts as also the number of the reserved candidates
being already in services, the particular number of posts, alone, were put in the reserved
category.
Respondents, further, submit that there cannot be a challenge to the Government
Order dated 18.7.2001 merely on the ground that it is not passed by the legislature. The
respondents heavily rely on Section 86 of the U.P. Reoganisation Act and submit that
there will be no question of amending the U.P. Reservation Act, 1994 by the
Government Order dated 18.7.2001 and the State of Uttaranchal has total authority to
decide upon their policies of reservation as also to adopt the modalities to effectuate
664
those policies. It is, therefore, contended that the Government Order dated 18.7.2001 is
a perfectly valid instrument.
11. Respondents, further, urged that there was no comparison between the
contractual lecturers and the regularly appointed lecturers in so far as their appointments,
responsibilities, selection or the nature of duties are concerned and, therefore, the claim
for the regular scale is unsustainable. The respondents point out that there is no
application of the principle of Equal Work Equal Pay in this case because visiting
lecturers (contractual lecturers), like the petitioners, are a separate class by themselves
not comparable to the regularly selected lecturers.
12. The State, as an additional contention, also contends that, in fact, the State has
titled in favour of the said visiting lecturers like the petitioners in providing the
preferential treatment to them in the Education Service Rules and they can legitimately
compete with others on the basis of that preferential treatment and instead of assailing
the advertisement and thwarting the attempts on the part of the State Government to
appoint regularly selected lecturers, it would be better if they took part in the selection
process introduced by the advertisement. On this ground also, the State repels the
challenge to the advertisement.
13. The following questions, therefore, fall for consideration:
(1) Do the petitioners have any locus standi to challenge the Uttaranchal Regularisation of Ad hoc Appointments (on posts with the purview of Public Service Commission) Rules, 2002 and more particularly the Rule 4 thereunder?
(2) Is the cutoff date fixed by Rule 4 arbitrary and is the Rule hit by the
contravention of Article 14 of the Constitution of India on that account?
(3) Are the rules bad as they amount to extra territorial legislation?
(4) Is the impugned advertisement dated 14.3.2004 bad on account of percentage of reservation therein being in variation to the U.P. Reservation Act, 1994 and is the Government Order dated 18.7.2001 bad on account of the fact that it amounted to an amendment of legislation (U.P. Reorganisation Act, 2000) by way of executive order?
665
(5) Was the State Government justified in requiring the petitioners to work
on fixed salaries and refusing them to regular pay scales of Lecturer?
(6) Can any relief be granted to the petitioners?
Question Nos.1, 2 and 3:
14. These three questions can be conveniently considered together as they pertain to
the validity of the Regularisation Rules. We have already pointed out earlier that the
strategy in challenging the Rule appears to be to get the cut off date of 30.6.1998
quashed and then as a sequel to the quashing of the date, claim the said date to be
7.8.2002, when the petitioners entered into the contract of service. In short, the
petitioners’ strategy appears to be, that if the cut-off date is quashed, then there would be
no cut of date and at any rate the cutoff date would be starting from the date of the
services of the petitioners and they would be then entitled for consideration for
regularisation. Therefore, before venturing to test the constitutionality of these Rules in
general and Rule 4 in particular, it has to be seen whether the petitioners have any
concern or nexus with these Rules.
15. A mere glance on these Rules suggest that these Rules are meant only for the
employees who were serving with the erstwhile State of U.P. and who eventually were
made over to the State of Uttaranchal under the provisions of the U.P. Reorganisation
Act, 2000. The basic fact, which cannot be forgotten is, for the applicability of these
rules, the concerned employee must have been employee of erstwhile State of U.P. and
he should have been in service on 30.6.1998. It is again an admitted position that none
of the petitioners in all these writ petitions was an employee in the State of Uttar
Pradesh. In fact none of these petitioners had even started their career in the State of
U.P. and each one of the petitioners entered in service only in the newly constituted State
of Uttaranchal. If this is the situation, then one fails to understand as to how the
petitioners could be allowed to challenge the Rules, which were made for regularisation
or for consideration of regularisation of the erstwhile employees in the State of U.P. It
cannot again be forgotten that the Rules were meant for regularisation of the employees,
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who were appointed as ad hoc employees on the post, which came within the purview of
the Public Service Commission. Again, rules were not meant exclusively for the
Education Department and there are distinct and separate Rules for the Education
Department, which are called Uttaranchal Higher Education (Group A) Service Rules,
2003. One fails to understand as to how the petitioners, who were not even in the
existence in the erstwhile State of U.P., could be allowed to challenge these
Regularisation Rules, which were meant only for the ad hoc employees appointed in the
State of U.P. and who were in service on 30.6.1998. There is an inherent contradiction
in the challenge because, firstly the petitioners were not employees in the State of U.P.
and secondly they were also not ad hoc employees. Once this factual position is
obtained, the very basis of the challenge falls down. We are, therefore, of the clear
opinion that since the petitioners were not erstwhile Uttar Pradesh employees and since
the Regularisation Rules were meant only for those who were erstwhile U.P. ad hoc
employees, there would be no question to permit the persons, like petitioners, to
challenge the Rules.
16. Once this position is obtained, there would be no question of our considering
further challenge as to whether this amounted to legislation of extra-territorial nature. In
our considered opinion, it could not be by any stretch of imagination held to be a
legislation of extra territorial nature. After all, when these Rules came into being, they
covered the employees who essentially were erstwhile U.P. employees, but had been
made over to the Uttaranchal permanently. At the time when the Rules were framed i.e.
on 7.8.2002 the State of Uttaranchal was passing the Rules for its own employees, who
had cut their ropes and burnt their boats in so far as their return to U.P. is concerned.
Once the U.P. employees appointed on ad hoc basis came to Uttaranchal, the State of
Uttaranchal had all the authority and legislative potency to decide as to whether such
persons should be regularised or not and that is precisely what has been done by these
Rules. Therefore, their objection regarding the extra territorial operation also has to fall.
17. A lengthy debate went on to suggest that these petitioners could be termed as the
ad hoc employees and nor merely contractual employees. In our opinion such a debate
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is completely unnecessary. Even if, we hold the present petitioners to be ad hoc
employees, the fact that the matter is that they were not ad hoc employees in the State of
U.P. and it is only for the ad hoc employee appointed in the State of U.P. who were
made over to the State of Uttaranchal that the present rules had been brought into
existence. We shall immediately show that these petitioners were not ad hoc employees
at all for the simple reason that an ad hoc employee draws a regular pay scale and
admittedly these petitioners did not draw any such regular pay scale. Their service was
purely on contractual nature and because of this they were described as Visiting
Lecturers in their appointment orders. We have deliberately referred to the rules called
Uttaranchal Higher Education (Group A) Service Rules, 2003. Under these Rules vide
Rule 3(n), there is specific mention of the persons like petitioners. We have already
quoted definition of ‘Visiting Lecturer’ vide this Rule in para 3 of the judgment. We
have deliberately quoted in the same paragraph Rule 9(d), (e) and (f) to suggest that a
specific and distinct category of Lecturers was contemplated by these Rules, who as a
result of their continuing from the session 2001-2002 on contract under
G.O.No.457/HRD/2001-3(6)2000 dated 27.1.2001, were given a favourable treatment as
compared to others competing for the Lecturers post through their selection by the
Public Service Commission. Under Rule 9(d), such candidates are to get five percent
bonus marks of the total marks obtained in the examination/ interview provided of
course that while working as Visiting Lecturers, they had the minimum qualification
prescribed by the Government for the post of Lecturer. There can be no dispute that the
petitioners had such minimum qualification because otherwise they could never have
been appointed as Visiting Lecturers at all. We have already pointed out that these
Visiting Lecturers had to have the qualification fixed by the University Grants
Commission for being appointed as such on contract basis under the aforementioned
Government Order dated 27.1.2001. This preferential treatment was shown even to the
part-time Lecturers, subject of course of their having minimum qualification. Rule 9(f)
provided that only those Visiting Lecturers and Part-time Lecturers could be given such
a preference, who were working on or before the date of notification of the Service
Rules. The notification of the service Rules came on 25.8.2003 and without a doubt, all
the Lecturers were working on that date as contractual Lecturers or as the case may be
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Visiting Lecturers. The last sentence of the said clause 9(f) is extremely telling i.e.
“This is not a permanent provision”. Thereby, these Lecturers were treated as a specific
and distinct class and it is for such Lecturers class alone that the State had tilted the
balance in their favour by providing a preferential treatment of getting five percent
bonus marks on and above their score. This dispels all the doubts about these Lecturers
that they were never treated as ad hoc lecturers. They were of course treated as a
separate class and, in our opinion government had rightly made a provision for
safeguarding their interest perhaps taking into consideration their three years of service
on the fixed salary. Therefore, these Lecturers could never to be treated as ad hoc
Lecturers.
18. A very heavy reliance was placed by the petitioners to suggest that they were ad
hoc employees on the reported decision in Rudra Kumar Sain and others Vs. Union of
India and others reported in (2000) 8 Supreme Court Cases 25 and more particularly in
para 19, where the Apex Court has explained the significance of the ad hoc appointment.
The Supreme Court therein was considering the significance of the term “ad hoc” as also
the term “fortuitous” and “stop gap”. The following contents were heavily relied upon:
“The meaning to be assigned to these terms while interpreting the provisions of the service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose, it will be necessary to look into the purpose for which the posts were created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as “ad hoc” or “stop gap”. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature, then the appointment of such a post can aptly be described as “fortuitous” in nature. If the appointment is made to meet the contingency arisen on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then and to meet this contingency, an appointment is made, then it can appropriately be called a “stopgap” arrangement and appointment in the post as “ad hoc” appointment.”
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From this, the petitioners say that since their appointment was made as a large
number of posts were remaining unfilled and that was affecting the education scenario in
the Colleges, their appointments were “ad hoc” in nature, though such appointments
were for a particular period provided by the contract. The contention is undoubtedly
attractive. However, in our opinion, Rudra Kumar Sain’s case will not apply for more
than one reason. In the first place, there the Supreme Court was considering the question
of inter se seniority between the person who were appointed by way of ad hoc
appointment and some others. Such is not the question here. We are concerned with the
rights of the petitioners to be regularised and to put it more correctly for being
considered for regularisation in that appointment. This is not a case where some posts
are created to meet a particular situation. On the other hand, this is a case where a
number of posts had remained vacant and undoubtedly there would have been a delay in
the appointment of these posts and as such the said appointments were made by a
contract for specific period of one year and these Lecturers were then allowed to
continue for two more years. They were not provided regular scale of Lecturer. On the
other hand, they were provided with fixed salary. We further point out that their duties
were also not identical with regular Lecturers as these Lecturers had no liability to work
in the summer vacations and if they were required to work in the summer vacations, they
were to be separately paid. Normally, an ad hoc appointment would draw some salary
and the regular scale meant for that post, which is obvious from the facts in Rudra
Kumar’s case. Such is, however, is not the case here. Again, the observations which
were relied upon are being read out of context because immediately thereafter the
Supreme Court holds that “It is not possible to lay down any straight-jacket fomula nor
give an exhaustive list of circumstances and situation in which such an appointment (ad
hoc, fortuitous or stopgap) can be made. As such, this discussion is not intended to
enumerate the circumstances or situations in which the appointment of officers can be
said to come within the cope of any of these terms. It is only to indicate as how the
matter should be approached, while dealing with the question of inter se seniority of
officers in the cadre” (emphasis applied). This would clearly explain that the
observations made by the Supreme Court quoted above would not apply to the present
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case where the question of inter se seniority is not for consideration. We, therefore, do
not think that the observations are of any help to the petitioners.
19. Three other Supreme Court judgments were heavily relied upon, they being
Central Inland Water Transport Corporation Limited and another Vs. Brojo Nath
Ganguly and another & Central Inland Water Transport Corporation Limited and another
Vs. Tarun Kanti Sengupta and another reported in (1986) 3SCC 156 and Khagesh
Kumar and others Vs. Inspector General of Registration and others reported in 1995
Supp (4) SCC 182 as also Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress
and others reported in AIR 1991 SC 101. We are afraid none of the aforementioned
judgments is apposite to the present controversy.
In Central Inland Water Transport Corporation Limited and another Vs. Brojo
Nath Ganguly’ case (supra), the question was of unconscionable contract between the
workers and the employer which was held to be so and, therefore being opposed to
public policy, it was held void under Section 23 of the Contract Act. The Supreme Court
scoffed at obvious inequality of bargaining power between the parties and held that
Courts would not only not enforce such contract, but when called upon to do so, strike
down the unfair and unreasonable contract. It also held that while considering such
contract, all the provisions of the Contract Act must be taken into consideration, which
principle was in consonance of the objective to ensure social and economical justice and
also keeping in line in spirit of Article 14 of the Constitution. The Court, however, said
that cases such as these cannot be enumerated nor illustrated and the Court must judge
each case on its on facts and circumstances. Here, it is the contention of the petitioners
that they were unemployed educated persons and had no option except to put signatures
on the dotted lines, though the contract of service was unconscionable. It was tried to be
suggested that, therefore, it was the duty of the Court to strike down such a contract and
secure a regular pay scale available to the Lecturers. In the background of the present
facts, we do not think that such factual scenario is available in this case. All the
petitioners are highly educated persons. Majority of them hold doctorate. They have
signed the contract with the open eyes, which was only for one year to begin with and
was extended to three years. They also accepted extension and they were paid Rs.8000/-
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per month in the third year of their service, which was commensurate with the regular
pay scale, if not equal to it. It is not as if that they could not have secured employment
elsewhere. That is not the case pleaded and it indeed cannot be. Once these Lecturers
had accepted the contract with the open eyes, they cannot turn back and say that they
were a weaker party, had no bargaining power, therefore, had to put their signatures on
the contract and that they should be regularised even if they were appointed only for a
particular period. We do not think that such approach is reasonable and possible.
Again, we cannot ignore the fact that these three years of service has given them
additional advantage of 5 per cent bonus marks of the marks earned by them in the
matter of their selection by the Public Service Commission under the Education Rules,
to which we have already made reference. Every employee needs a job. If we take such
a view even in case of these Lecturers, it would amount to hold that each other employee
is a weaker section vis-a-vis an employer and, therefore, every such contract of service
would become unconscionable and liable to be struck off. The case of Central Inland
Water Transport Corporation Vs. Brojo Nath Ganguly, which was fall out of Delhi
Transport Corporation Vs. D.T.C. Mazdoor Congress and others (supra), therefore, had
to be read as per the law declared by the Supreme Court that every contract must be
judged independently in the light of the available facts. If that exercise is done, the
contention raised by the petitioner loses its potency.
In the Khagesh Kumar’s case (cited supra) the question of regularisation of the
clerks, who were on daily wage basis. The petitioners therein claimed the regularisation
on the basis of the sporadic ad hoc appointments. The Supreme Court on the basis of the
available rules held that where an employee was appointed on daily wages basis prior to
1.10.1986 and had put in three years’ service excluding the breaks, he would be entitled
to seek regularisation under Rule 4(1) OF Regularisation Rules provided he fulfilled the
requirement of qualification under clause (ii) of the said Rule. For that purpose, he was
given liberty to move appropriate authority for such regularisation. This case is heavily
relied upon as words of said Rule 4(1) are almost identical except the date mentioned
therein. This Rule appears in para 15 of the judgment of the Supreme Court. The
Supreme Court referred to the Regularisation Rules in U.P. and observed that if the
recruitment was made on the post of Registration Clerks on regular basis such
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employees should be given an opportunity of being considered for such appointment and
they should be given relaxation in age requirement provided for such appointment under
the Rules. So also during the process of selection weightage be given to their experience
to the post of Registration Clerks and suitable guidelines be framed for that purpose. It
is precisely that, it has been done in this case also. Such Lecturers, who have put in three
years of service and were on the service, have actually been given weightage of 5
percent bonus marks and they were also given relaxation of their age as would be
evident from Rule 9 of the Education Rules, to which we have already made reference.
This is how such view was taken by the Supreme Court in a reported decision Uttar
Pradesh Mahavidyalaya Tadarth Shikhak NiyamitikaranAbhiyan Samiti, Varanasi Vs.
State of U.P. and others reported in AIR 1987 SC 1772. This is also not a case where a
blanket relaxation was given by the Supreme Court. In fact the case of Khagesh Kumar
would be more beneficial to the respondents than the petitioners because these Lecturers
have been offered this opportunity by ways of impugned advertisement. We do not find
anything in Khagesh Kumar’s case to support the contention of the petitioners that they
are ad hoc workers. We have already clarified that merely using the magic term ad hoc
worker does not clothe the petitioner with any rights in view of the peculiar wordings
and language of the impugned Regularisation Rules. We are, therefore, of the clear
opinion that in the first place, the petitioners could not be said to have any nexus with
these rules as the impugned rule were not meant for the persons like the petitioners who
were entirely a different class. If they are held to be a different class altogether, there
will be no question of finding any discrimination against them, much less on account of
fixation of cut off date 30.6.1998.
20. Much clamour was made as to how the State Government fixed this cut off date
and that fixation of that cut off date itself was arbitrary act. We have already pointed out
that the petitioners cannot challenge this aspect being a different class altogether. They
were not on the scene on 30.6.1998 and the objective of the rule was entirely different.
The persons to be benefited by those rules were also altogether different class. As
regards the material available the State Government justified the same for fixing the cut
off date. The State Government claims that they have done it as in the erstwhile State of
U.P. also the same date was taken. We do not find anything unreasonable in fixing that
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date because after all the employees for whom the benefit of consideration of
regularisation was being contemplated by the rules were the ad hoc employees of
erstwhile U.P. There is nothing wrong if the State of Uttaranchal, therefore, took the lead
from the State of U.P. in fixing that date. Even at the cost of repetition we again
reiterate, our finding that the petitioners being the entirely different class and being
entirely unconnected with the rules, have no locus to challenge the fixation of cut of date
in these rules, which was not meant for them.
21. This bring us to the last consideration that the rule amounted to extra territorial
legislation. We have already held above that there is no question of these rules being
held as extra territorial legislation. True it is that employees contemplated under the
rules were the U.P. employees, but it cannot forgotten that admittedly they were made
over to the State or Uttaranchal and the State or Uttaranchal had accepted them with
open arms. In the wake of finding that they have cut their ropes and burnt their boats in
so far as their return to the U.P. is concerned, the State of Uttaranchal has every right to
decide their fate. We are not, therefore, prepared to strike down the rule, which was a
piece of a beneficial legislation on the ground that it amounted to extra territorial
legislation. This disposes the first three questions framed by us.
Question No.4:
This question cannot be gone into atleast in case of these petitioners because
none of them has claimed any status of the reserved category. All of them are of open
category. However, since we found that the advertised posts were not keeping with the
reservation percentage even shown in G.O. dated 18.7.2001 passed by the State of
Uttaranchal, we posed a query to the Government counsel as to how the advertisement
and more particularly reservations there, could be justified. As a sequel to the query the
Government pleader has come out with an affidavit, wherein in para 5, it is reiterated by
the Deputy Secretary, Higher Education, Government of Uttaranchal, Dehrdun that the
State Government vide its letter No.824/XXIV(1)/2004 dated 27.9.2004 has sent a
requisition to the Public Service Commission for filling up the remaining 239 posts of
Lecturers after calculating the number of posts available in the reserved category on the
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basis of the total strength and also taking into account backlog of the reserved categories
posts earmarked for the reserved category, so as to fulfill the admissible quota as per the
Government Policy. It is pointed out that out of the 239 posts, 129 posts have been
reserved for the Scheduled Caste, 37 for the Other Backward Classes and 35 posts for
the Scheduled Tribes have been earmarked. Thus, the posts of reserved categories
advertised in the impugned advertisement together with the posts of reserved categories
earmarked in the Government requisition make full quota of the reserved categories on
the basis of the cadre strength of 974. The Government has reiterated that instead of
issuing a corrigendum to the advertisement, the Government has decided to fill up the
remaining vacancies so that the reservation policy can be strictly implemented on the
total strength of the cadre. It is for this purpose that the Government has suggested that
it would not issue a separate corrigendum and would proceed with the interviews as the
exercise is extremely important in view of the fact that students are suffering on account
of paucity of Lecturers. We find this exercise to be bonafide and would expect the
Government to come up with the advertisement for 239 posts immediately. For this
purpose we are fixing the time limit of two months. If that is so, the challenge to the
advertisement must necessarily go.
23. It was faintly murmured that before the reorganisation of Uttar Pradesh, the
question of reservation was governed by the U.P. Public Service Services (Reservation of
Scheduled Caste, Scheduled Tribes and Other Backward Classes Act, 1994. It is then
contended that since the Government of Uttaranchal has adopted the said Act, the
provisions of reservation must be governed by that Act. Our attention was invited to
section 3, wherein the percentage of reservation for the Scheduled Caste 21%, for the
Scheduled Tribes 2% and for the other backward classes 27% is provided. It was pointed
out that by passing the Government Order dated 18.7.2001, this percentage is varied.
Heavily relying on Section 87 of the Uttar Pradesh Reorganisation Act, 2000, it was
contended that once the U.P. Act was adopted, unless it was specifically altered, amended
or repealed by a competent Legislature, the Government could not have effected a change
in the percentage of reservation by simply passing a Government order. Heavy reliance is
placed on the language of section 87 and, therefore, we are quoting the section as below:
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“87. Power to adapt laws: For the purpose of facilitating the application in relation to the State of Uttar Pradesh or Uttaranchal of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.”
In our opinion, the argument is completely untenable. Even if it is presumed that
the Act was adopted, as it is (for which no evidence is placed before us), we completely
fail to understand as to why would it be necessary to specifically amend or repeal or alter
the provisions of the Act. That is not the scheme of the Section, nor can this be a proper
interpretation. Now if the Government Order is passed by way of alteration of the
provisions of the U.P. Act by a competent authority, it would be perfectly in order. Here,
in this case it is not the case of the petitioner that the aforementioned Government Order
has been passed without any authority. What the petitioners contend is that by operation
of Section 87, the Uttaranchal Government had adopted the whole Act. In the first place,
we do not see any support by way of any evidence before us. The contention then is that
the amendment must come only through the legislation. In our opinion, the section cannot
be read narrowly. What the section mandates is that the appropriate Government, and in
this case, the Uttaranchal Government may within two years from 9.11.2000 pass an order
for making such adaptations or modifications of the law as may be felt necessary or
expedient. Now if the Government order is passed on 18.7.2001, it is within two years
from the date when the Uttaranchal Government came into existence and, therefore,
Uttaranchal Government, is perfectly justified in making adaptations or modification in the
law by simply passing an order and that is precisely what it has been done. The language
of the section further provides that these adaptations or modifications would continue to
apply so long as they are not altered, repealed or amended either by the competent
Legislature or other competent authority. We do not, therefore, see anything wrong in
Uttaranchal Government passing the Government order making its own adaptation by
changing the reservation percentage. We do not, therefore, see any force in the contention
of the petitioners that the Government order dated 18.7.2001 is in any way defective or
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illegal or in contravention of section 87 of the U.P. Reorganisation Act, 2000. The
contention is, therefore, rejected. The question is disposed of accordingly.
Question Nos. 5 and 6:
This leaves us with the last contention that the petitioners should have been given
salaries as regular lecturers and that they should be given regular time scale.
While considering the question of regularisation, we have already gone into the
subject and we have held that the petitioners are not entitled to regularisation and they
cannot rightfully claim the same. What goes for regularisation would also go for payment
of salaries. In our opinion, the petitioners have been paid salary of Rs.8000/- per month,
which may not be identical with the scale of lecturers, but is commensurate to the salary of
the lecturers, who are regularly appointed. The learned counsel Dr. R.G.Padia, however
very seriously urged that this Court had passed an order on 27.4.2004. The said order is as
follows:
“Heard Mr.R.G.Padia, learned counsel for the petitioners. Admit. Notices have been accepted by learned Chief Standing Counsel on behalf of the respondents no.1, 2 and 4 and by Mr.U.K.Uniyal, Advocate on behalf of the respondent no.3, who pray for and are allowed three weeks time to file a counter affidavit. List on 27.05.2004. Until further orders of this Court, services of the petitioner shall not be terminated in view of the fact that the Uttaranchal (under the purview of the Public Service Commission) Regulation of Ad hoc Appointment Rules, 2002 were enforced on 7th August, 2002 and the cut off date for regularisation is 30th June, 1998 when the State was not in existence. The employees who were appointed prior to 9th November 2000 were employees of the State of U.P., therefore, prima facie, we are of the opinion that the fixing the cut off date is 30th June, 1998 is arbitrary. Office is directed to supply the copy of his order today.”
On that basis, Dr.Padia said these teachers would continue to be in service or
would at least be deemed to be in service and, therefore, they should be paid salaries at
least till the decision of the writ petitions. We do not tend to agree with the contention
entirely because obviously these teachers are not working as such. Thereafter, on
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20.7.2004, the Court had issued notices to the respondents to show cause as to why the
orders had not been complied with. In fact it is because of that, the matter was taken up
for hearing. In the first place, the Government alone cannot be blamed for the pendency of
these writ petitions because after the petitions were filed they were extensively amended
by filing fresh affidavits, though the specific permission to amend the petitions was not
taken. After fresh affidavits were filed by the petitioners from time to time, the
Government side also took some time in filing the counter affidavits. Therefore, we do
not blame the Government. The arguments also went on for a considerable long time.
Under these circumstances, we are of the opinion that the petitioners would be entitled to
get the salary only upto the end of the session 2003-2004, and not further salary. We are
aware that we are passing this order causing financial burden to the Government, but if the
order of the Court was continuing and that order was not varied by the Court, then these
teachers would be entitled to get the salary till the end of the Session 2003-2004. That is
the only relief that can be given to the petitioners.
24. All the writ petitions are, therefore, dismissed except for the last relief that we have
granted.
25. Under these circumstances, we see no reason to order costs.
26. No other contention was raised before us except the one, which we have
considered in this judgment.
***
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IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No.448 of 2005 (M/B)
D.D. 6.5.2005
Hon’ble Cyriac Joseph, C.J. & Hon’ble M.M.Ghildiyal, J. Arshad Jamil ... Petitioner Vs. State of Uttaranchal & Ors. ... Respondents Reservation: Caste Certificate issued to the petitioner was cancelled as per order dated 2.3.2005 after holding an enquiry - The petitioner challenged the same on the ground that before cancelling the Caste Certificate no notice was issued to the petitioner and no opportunity was given to file his objections – The High Court rejected the contention of the respondent–State Government that notice was given at the time of holding the enquiry which led to the cancellation of the certificate. Held: That even though if the petitioner had participated in the enquiry which was held after issuing notice to the petitioner wherein it was held that he was not domicile of Uttaranchal the petitioner was entitled to a notice containing the proposal to cancel the Caste Certificate already issued giving him an opportunity to file his objections if any - However liberty was reserved to the respondent – Government to issue notice to the petitioner proposing to cancel the caste certificate already issued and to pass fresh order in accordance with law after considering the objections if any of the petitioner.
ORDER The petitioner was given a caste certificate by the then Tahsildar, Roorkee, District
Haridwar on 29.6.2002. On the basis of a complaint received about the right of the
petitioner to get the said caste certificate, an enquiry was conducted and on the basis of the
finding in the enquiry, the caste certificate dated 29.6.2002 has been cancelled by the third
respondent Tahsildar Roorkee as per Annexure 1 Order dated 2.3.2005. Aggrieved by the
said order of cancellation of the caste certificate the petitioner has filed the writ petition.
2. We have heard Mr.Sudhanshu Dhuha, Senior Advocate assisted by Mr.D.S.Pathi,
Advocate for the petitioner and Mr.K.P.Upadhyaya, learned Standing Counsel for the
State of Uttaranchal who accepted notice for respondents No.1 to 3.
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3. The main ground of attack against Annexure 1 Order is that it was passed in
violation of the principles of natural justice. It is contended that before cancelling the
caste certificate issued to the petitioner, the third respondent did not issue any notice to the
petitioner and give him an opportunity to state his objections, if any to the proposal.
Annexure 1 Order also shows that no such notice was issued to the petitioner and no
opportunity was given to him to state his objections to the proposal. Learned Sanding
Counsel appearing for the respondents submitted that Annexure 1 Order was issued on the
basis of the finding in an enquiry conducted by a committee into the allegation that the
caste certificate was wrongly issued to the petitioner and that the Government had issued
notice to the petitioner before deciding that the petitioner is not a domicile of Uttaranchal
and therefore, it was not necessary to issue notice to the petitioner again by the third
respondent before issuing Annexure 1 Order.
4. We do not agree with the above contention of the learned Standing Counsel. Even
if the petitioner had participated in the enquiry stated to have been conducted by a
committee and even if a finding was entered by the Committee against the petitioner and
even if the State Government had, after issuing notice to the petitioner decided that he is
not a domicile of Uttaranchal, the petitioner was entitled to a notice containing the
proposal to cancel the caste certificate already issued and giving him an opportunity to
state his objections, if any, to the proposal. If the petitioner was given such a notice, he
would have got an opportunity even to assail the finding of the committee and to state why
the findings of the committee should not be acted upon by the third respondent or why the
decision of the Government cannot call for cancellation of the certificate already issued.
Therefore, we are of the view that Annexure 1 Order passed in violation of the principles
of natural justice and hence is liable to be quashed on that ground. We make it clear that
we have not considered any other contention raised by the petitioner and Annexure 1
Order is being quashed only on the ground of violation of the principles of natural justice.
5. In the above circumstances, Annexure 1 Order dated 2.3.2005 is quashed. It will
be open to the third respondent to issue notice to the petitioner proposing to cancel the
caste certificate already issued to him and giving him reasonable opportunity to state his
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objections, if any, to the proposal and to pass fresh order in accordance with law after
considering the objections, if any, submitted by the petitioner.
6. The Writ petition is disposed of as above.
***
681
UTTAR PRADESH PUBLIC SERVICE COMMISSION
682
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD CIVIL MISC. WRIT PETITION NO.16082 OF 1986
D.D. 14.8.1987
THE HON’BLE MR. JUSTICE S.K.DHAON AND
THE HON’BLE MR. JUSTICE R.P. SINGH Ram Naresh ... Petitioner Vs. U.P. Public Service Commission ... Respondent Validity of Pay Scales:
The employees of U.P. P.S.C. and the employees of the Secretariat of the corresponding rank are being selected on the basis of same advertisement, same written test and interview – The Government as per order dated 10.6.1982 directed Special Allowance to the employees of the Secretariat without extending that benefit to the employees of U.P. P.S.C. of the same rank – Employees of U.P. P.S.C. claimed the Special Allowance on the basis of equality doctrine – The High Court allowed the Writ Petition holding that once the parity in the scale of pay is granted to the employees of the Commission with that of the corresponding employees of the Secretariat it is not open to the State Government to disturb that parity by directly enhancing the emoluments payable to the employees of the Secretariat. Held: That the persons performing same kind of work and similar duties are to be paid identical salaries and emoluments and that no discrimination that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments.
Cases referred:
1. A.I.R. 1982 SC 879 – Randhir Singh v. Union of India & Ors. 2. 1986 U.P. L.B.E.C. 254 – Dhirendra Chamoli & Anr. V. State of U.P. 3. A.I.R. 1986 SC 284 – Surendar Singh & Anr. V. The Engineer in Chief C.P.W.D. &
Ors.
JUDGMENT
By means of this writ petition the petitioners have prayed for a writ of mandamus
directing the respondents to pay the special allowance to the members of Uttar Pradesh
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Lok Seva Ayog Karmachari Sangh, Allahabad in accordance with the Government Order
dated 10.6.1982 as is payable to the employees of the Secretariat of the State Government
and thus have based their claim on the equality doctrine embodied in the Constitution of
India which according to the petitioners is attempted to be flouted by the respondents of
this case and thus denying the petitioners by way of special allowance what is being paid
to the employees of the Secretariat of the State Government. The claim of the petitioners
is that they are discharging similar duties and responsibilities as are discharged by the
employees of the Secretariat of the State Government of the corresponding rank and
hence on the basis of parity, they are also entitled to the benefit as in available to the
Secretariat staff under the Government Order issued on 10th June, 1982.
As long back as on 25.9.86 time was granted to the Standing Counsel to file a
counter affidavit. Again on 7.1.1987 time was granted to file a counter affidavit and later
on, on 4.8.87 it was ordered that the writ petition shall be listed for admission on 11th
August, 1987 peremptorily and it was ordered that the petition will be decided finally on
that date. No counter affidavit has been filed by the learned standing counsel and the
learned counsel for the Commission also did not file any counter affidavit and hence we
proceed on the assumption that the averments made in the writ petition which are
uncontroverted, are correct. We have heard the learned counsel for the parties and
proceed to dispose of the writ petition finally.
The petitioner No.1 i.e. Uttar Pradesh Lok Seva Ayog Karmachari Sangh
Allahabad is a registered association which is comprised of all the members of class III
and class IV services of the U.P. Public Service Commission, hereinafter referred to as
the Commission. The petitioner No.2 is the President of the aforesaid association and is a
lower division assistant in the office of the Commission in the grade of 470-735
corresponding to the same grade of lower division assistant in the office of the Secretariat
of the State Government, Lucknow, hereinafter referred to as the Secretariat. The
petitioner No.3 is the upper division assistant in the office of the Commission in the grade
of 570-1100 corresponding to the same grade of the upper division assistant in the office
of the Secretariat. The petitioner No.4 is the personal assistant in the office of the
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Commission in the grade of 570-1100 corresponding to the same grade of personal
assistants in the office of Secretariat. The petitioner No.5 is the librarian in the office of
the Commission in the grade of 515-840 corresponding to the same grade of librarian in
the office of the Secretariat. Petitioner No.6 is technical assistant in the office of the
Commission in the grade of 625-1240 corresponding to the same grade of Technical
Assistant in the office of Secretariat. Petitioner No.7 is the punch verifier operator in the
office of the Commission in the grade of 430-685 corresponding to the same grade of
Punch verifier operator in the office of the Secretariat. The petitioner No.9 is security
guard driver in the office of the Commission in the grade of 330-490 corresponding to the
same grade of security guard/driver in the office of the Secretariat. The petitioner No.10
is cycle-operator/Jamadar/Daftari/Tubewell operator/Attender Jamadar in the office of
the Commission in the grade of 315-440 corresponding to the same grade of cycle-
operator/Jamadar/Daftari/Tubewell operator/Attender Jamadar in the office of the
Secretariat and petitioner No.11 is peon in the office of the Commission in the grade of
305-395 corresponding to the same grade of peon in the office of the Secretariat. Thus
according to the allegations in the writ petition all the employees in different grades in
the Commission are performing similar duties as are performed by the employees of the
Secretariat of the State Government of the corresponding rank and it is further averred
that the employees of the Commission and the employees of the Secretariat of the
corresponding rank are mutually transferable. Thus, a parity between the employees of
the Commission and the employees of the Secretariat has been established from the very
inception of the Commission in the State i.e. from 1937 and it is further averred that the
employees of the Commission have always been paid their salary in the same grade with
the same increment as the employees of the corresponding rank of the Secretariat.
The petitioners have in support of their case shown parity between the employees
of the Commission and the Secretariat of the corresponding rank. They have also quoted
the extract of the U.P. Pay Rationalisation Committee of the year 1964-65 that employees
of the Commission and the employees of the Secretariat have been placed in one group.
It reads as under:
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Chapter No.XI Ministerial Services
The last Pay Committee though it is extremely difficult to bring all the offices in the State on the same level in respect of pay of the ministerial staff as the volume, if not the nature, and to some extent the standard, of work varied from office to office and the method of recruitment was also different in some cases, they divided the ministerial services into the following four main groups: (i) Secretariat, office of the Public Service Commission, Offices of the Legislative Council and Legislative Assembly Departments, Governor’s Secretary’s office and Military Secretary’s office;
The learned counsel for the petitioner urged that the salaries and allowances paid
to the employees of the Commission are at complete par with those of the employees of
the Secretariat of the corresponding rank but now by G.O. dated 10.6.1982 a special
allowance of varying rates is sought to be given only to the employees of the different
categories of Secretariat and the employees of the Commission of the corresponding
ranks have been clearly excluded from the benefit of the said Government Order and
thereby the equality doctrine, embodied in the Constitution of India, has been violated by
the respondents under the cover of an artificial division without any justification and
denying the employees of the Commission the benefit of the special allowance as
contemplated by the G.O. dated 10.6.1982 which has been given only to the employees of
the Secretariat alone. It is urged that the petitioners and other employees of the
Commission have repeatedly met the Chairman of the Commission with the request that
they are also entitled to the special allowance in the same manner as is admissible to the
employees of the Secretariat but the Chairman expressed his inability on the ground that
he has no jurisdiction to extend the benefit of the same to the employees of the
Commission. It has been averred that the petitioners repeatedly went to Lucknow and
met the officers concerned in connection with their demand for the special allowance
which is being paid to the employees of the Secretariat along but of no avail.
The learned counsel for the petitioners strenuously urged that equal pay for equal
work is an important directive principle under Article 39(d) of the Constitution of India,
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that non payment of the said special allowance to the employees of the Commission
amounts to discrimination against the employees of the Commission which violates
Articles 14 and 16 of the Constitution. It was submitted that since the employees of the
Commission have always been treated on complete parity with the employees of the
Secretariat of the corresponding rank in matters of their duties, functions and payment of
emoluments and allowance and hence the petitioners are entitled to the special allowance
which is being paid to the employees of the Secretariat alone vide Government Order
dated 10.6.1982. Thus the contention of the learned counsel for the petitioner is that the
payment of equal salary and allowance for the employees performing similar duties and
functions in the State is an important directive principle of our State Policy as enshrined
in the preamble, Articles 37, 39 and 40 of the Constitution of India. It is stated that in
fact the appointment process of the employees of the Commission and the employees of
the Secretariat of the corresponding rank is the same and generally the employees of the
both are being selected on the basis of the same advertisement, same written test and
same interview and they are posted according to the option of the candidates and their
merits.
Learned counsel for the petitioner invited our attention to recent decision of this
Court in Civil Misc. Writ Petition No.643 of 1983. J.P.Upadhya and others vs. State of
U.P. and others, whereby the employees of this Court and of the office of the Advocate
General of the State of U.P. have also been ordered to be paid the same special allowance
as is payable to the employees of the Secretariat vide Government order dated 10th June,
1982 on the ground of parity in the terms and conditions of the employees of the
Secretariat with that of the employees of the High Court and of the office of the Advocate
General of the State of U.P. In Writ Petition No.643 of 1983 decided by a Bench of this
Court on 31.3.1986 after dealing with the parity in the conditions of service of the
employees of this Court and of the office of Advocate General of the State of U.P. with
that of the corresponding employees of the Secretariat, this Court held in a detailed
judgment that it stands concluded by a series of Supreme Court decision that the person
performing same kind of work and similar duties are to be paid identical salaries and
emoluments and that no discrimination can be made between two set of employees on the
687
ground and that they belong to different offices and hence allowed the writ petition
holding that it was not open to the State Government to disturb that parity by indirectly
changing the emoluments payable to the Secretariat employees by issuing the impugned
G.O. dated 10th June 1982 under which special allowance was payable to the employees
of the Secretariat alone.
We are in respectful agreement with the decision given by this Court in writ
petition No.643 of 1983 In Randhir Singh vs. Union of India & others (A.I.R. 1982 SC
879) their Lordships of the Supreme Court observed as under:
“Equal pay for equal work’ is not a mere demagogic slogan. It is a Constitutional goal capable of attainment through constitutional remedies, by the enforcement of constitutional rights. So the petitioner claims; so the petitioner asserts. Article 39(d) of the Constitution proclaims, as a Directive Principle, the Constitutional goal of ‘equal pay for equal work for both men and women’. Articles 14 and 19 guarantees respectively the fundamental rights to equality before the law and equality of opportunity in the matter of public employment and art. 32 provides the remedy for the enforcement of the fundamental rights................”
“It is true that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them very, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.”
This Rule of equal pay for equal work has been again reiterated by the Supreme Court in
Surendar Singh and another Vs. The Engineer-in-Chief C.P.W.D. and others (A.I.R. 1986
SC 584) and Dhirendra Chamoli and another Vs. State of U.P. reported in (1986 U.P.
L.B.E.C.254). It will be noticed that it is not the case of the State Government or the
Commission that the employees of the Commission are not entitled to the identical scales
of pay as the corresponding employees of the Secretariat. Once the parity in the scale of
pay is granted to the employees of the Commission with that of the corresponding
employees of the Secretariat, it is not open to the State Government to disturb that parity
688
by directly enhancing the emoluments payable to the employees of the Secretariat by
issuing the impugned G.O. dated 10th June 1982 under which the special allowance is
made available to the Secretariat employees only.
In view of what has been stated above, the writ petition is accordingly allowed
and writ in the nature of mandamus is issued to the respondents directing them to pay to
the petitioners and other employees of the U.P. Public Service Commission of the same
grade the special allowance as is payable under the Notification No.Va-Aa-2128/Das-
1982-42-M-80 of the State Government dated 10.6.1982 with effect from the date of
issuance of the Notification dated 10.6.1982 as part of their salary as is payable to the
employees of the Secretariat of the State Government.
There will, however, be no order as to costs.
***
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WEST BENGAL PUBLIC SERVICE COMMISSION
690
IN THE WEST BENGAL ADMINISTRATIVE TRIBUAL BIKASH BHAVAN, SALT LAKE, KOLKATA- 700 091
Case No. 0A-646/2001 D.D. 2.1.2004
Justice Mr. R.K.Mazumder, Hon’ble Chairman Mr. S.K.Ghosh, Hon’ble Member (A)
Manas Ranjan Mazumder & Ors. ... Applicants Vs. State of West Bengal & Ors. ... Respondents Qualification – Experience qualification: Applicants were candidates for recruitment to the posts of Principal in Government Colleges – Apart from educational qualification experience for 15 years in research work was prescribed – As the applicants did not have the experience for the number of years prescribed they were not called for interview – The Tribunal upheld the contention of P.S.C. that 15 years experience in research work should be gained after obtaining Ph.D. degree dismissed the applications. Held: Where experience of a number of years is prescribed as an item of qualification, this would mean only experience/research experience gained in full time employment/research after acquiring the minimum requisite educational qualification.
ORDER
The case of the Applicants was in brief that the P.S.C, West Bengal, being
Respondent No.3, published an Advertisement being Advertisement No. 15/2000 dated
18/9/00 inviting applications for filling up the posts of Principal in Government Colleges
in the West Bengal in the Senior Education Services. All the applicants possessed
necessary essential qualifications and hence they applied for the said posts. But
unfortunately the applicants were not called for interview. Hence, they contacted the
Secretary, PSC for information in the matter. It was informed by the PSC authorities that
since the applicants did not fulfill the essential qualifications, they were not called for
interview. Being aggrieved by such stand. The applicants sent representations for
consideration by the authorities, but in vain. Hence the case.
691
The Public Service Commission, West Bengal being Respondent No.3 contested
this case by filing a Reply. The case of this Respondent was that in response to the
advertisement NO.15/2000 dated 18/9/2000 inviting applications for the posts of
Principal in Govt. Colleges under Senior Education Service, 112 candidates applied for
the said posts. On proper scrutiny of the applications, 71 candidates were not called for
interview on the ground that they did not fulfill the essential qualification as to
experience in research/teaching for 15 years obtained after acquiring Ph.D. degree, which
was the minimum required essential academic qualification. It was also the case of this
Respondent that the Commission being a Constitutional independent body, it never acted
with “bias” or “prejudice”. On the other hand, the Commission acted fairly and bonafide
to get the best talented persons for public service. This Respondent, therefore, prayed for
dismissal of this case.
The Applicants filed Rejoinder controverting the contentions made in the Reply
by the Respondent No.3.
Both the parties filed written notes of arguments in support of their respective
cases.
The only question requiring consideration was whether the Respondent authorities
concerned should be directed to call the applicants for interview for the posts of Principal
in Govt. Colleges in the West Bengal in the Higher Education Services as prayed for or
not.
At the time of hearing Ld.Counsel for the applicants vehemently submitted that
his clients possessed all the essential qualifications, namely, (i) Master degree with
prescribed percentage of marks, (ii) Ph.D. degree or equivalent, (iii) Experience for 15
years in research work, and (iv) Good power of expression in Bengali and Nepali, But
none-the-less they were not called for interview on the alleged ground that they did not
possess the necessary experience for 15 years after obtaining the Ph.D.degree. It was
further submitted by him that the PSC Respondents misinterpreted the Recruitment Rules
692
and also the advertisements as published in certain Newspaper by way of saying that
those documents never mentioned that the experience in research for 15 years should be
counted from the date of getting the Ph.D. degree. According to him no such condition as
to experience for 15 years after obtaining the Ph.D. Degree was stipulated. It was also
submitted that all the applicants had had the research experience for long 15 years in the
total and hence they were qualified for the said posts and were eligible to be called for
interview, but PSC Respondent stood in the way and was insisting illegally that the
applicants should have experience in research work for 15 years after obtaining the Ph.D.
degree.
Ld.Counsel for the PSC Respondent submitted, on the other hand, that 15 years
experience in teaching/research after obtaining Ph.D. degree or equivalent was essential
which the applicants did not possess. It was also submitted by him that PSC acted
bonafide in the matter. As the applicants did not fulfill the essential conditions by way of
having 15 years experience after obtaining the Ph.D. degree, they were not called for in
the interview for the said posts. In that connection it was also submitted that the PSC was
a Constitution authority and it acted bonafide in the matter without any “bias” or
“prejudice” against any applicant. Hence, the instant application was liable to be
dismissed.
According to the Ld.Cousel for the Respondent, PSC., the experience of
teaching/research should be counted from the date, the candidates obtained their
respective Ph.D. degrees. In support of such contentions Ld. Counsel for the PSC drew
our attention to the note as on record as appended below:-
“The advertisement that the prescribed essential qualifications were the minimum and mere possession of the same did not entitle the candidates to be called in for the interview”. In that connection he also interalia drew our attention to the note contained in the Advertisement, which ran as follows:- “Where experience of a number of years is prescribed as an item of qualifications, this would mean only experience/research experience gained in full time employment/research after acquiring the minimum requisite educational qualifications”.
693
Ld.Counsel for the PSC argued that minimum requisite educational qualification was
Ph.D. and hence the experience of a candidate in teaching/research in
Universities/Colleges etc. should be counted from the date Ph.D. degree was obtained by
a candidate. He further submitted that since the applicants of this case did not possess
such experience for 15 years counted from the date of their getting Ph.D. degree, the
Respondent PSC had no other alternative but to refuse their prayer for appearing before
the Interview Board. He further argued that the Respondent PSC was an independent
Constitutional Body and it acted strictly in terms of the reference made by the State Govt.
under Article 309 of the Constitution of India in Notification NO.465-EDN(A)/4A-15/99
dated 2/6/2000. It was also submitted by him that PSC, being the expert Independent
Body, it acted bonafide and nurtured no “bias” or grudge or ill-feeling against anybody. It
was his candid submission that since the applicants did not fulfill the essential
qualifications as to experience obtaining the degree of Ph.D. their candidature could not
be considered by way of giving them an opportunity of appearing before the Interview
Board. He, therefore, prayed for dismissal of this case on merit.
On the other hand, it was the submission of the Ld.Counsel for the applicants that
the essential qualifications as to experience in research for 15 years should be courted not
from the date of their obtaining the Ph.D. degree but that the whole experience for 15
years could be counted from a date before the candidate obtained his Ph.D. degree. In
other words, it was the submission that the total period of experience for 15 years should
be counted by taking into considerations the experience gathered by the candidate not
only in respect of the period from the date of their obtaining Ph.D. degree but also by
taking into consideration the experience they obtained from before the date of their
getting Ph.D. degree. To be specific, it was their contention that the required experience
in research should be counted covering the whole period of their experience whether
gained before obtaining the Ph.D. degree or thereafter.
Admittedly, the Respondent No.3, PSC published an advertisement being
Advertisement No.15/2000 in the leading Newspapers dated 18/9/2000 for appointment
694
to the posts of Principal in Govt.Colleges in West Bengal. Admittedly also all the
applicants applied for the said posts. Admittedly also all the applicants hold the M.Sc.
degree with prescribed percentage of marks and also the Ph.D. degree or equivalent. But
the whole dispute revolved round the question as to whether the Applicants fulfilled the
qualification as to 15years research experience after obtaining the Ph.D. degree or not.
A copy of the Advertisement as published in Newspapers is on record. According
to this Advertisement, the essential qualifications were prescribed as follows:-
“QUALIFCATIONS ESSENTIAL – (i) Master degree with at least 55% marks or an equivalent grade of “B”=Good, Grade point : 3.50 – 4.49, percentage equivalent – 55.64 in 7-point scale as stipulated by the University Grants Commission, at the Master degree level in the relevant subject, (ii) Ph.D. or equivalent, (iii) 15 years experience of teaching/research in University/Colleges and other Institutions of Higher Education, (iv) Good power of expression in Bengali Nepali.”
It also appears from the notes appended below the said Advertisement that on the
question of experience, it prescribed as under:-
“Where experience of a number of years is prescribed as an item of qualification, this would mean only experience/research experience gained in full time employment/research after acquiring the minimum requisite educational qualification”.
According to the Applicants, this experience of 15 years in research should be
counted not form thee date of getting the Ph.D. degree but from the date prior to the date
of getting the Ph.D. degree. On the other hand, the contention of the PSC was that this
experience of 15 years should be counted from the date of getting the Ph.D. degree and
not from any date prior to the date of getting the Ph.D. degree. A close scrutiny of the
Advertisement as published made it abundantly clear that the experience of 15 years is to
be counted from the date of getting the Ph.D. degree, which was the minimum required
essential academic qualification. That being the position, the PSC did not rightly allow
the applicants to appear before the Interview Board as they did not possess the 15 years
experience in research after getting the Ph.D. degree. We, therefore, find no merit in the
present application. Hence the case is dismissed.
***
695
IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction
W.P.S.T.No.496(W) of 2004 D.D. 18.8.2004 Hon’ble Mr. Justice Aloke Chakrabarti Hon’ble Mr. Justice S.P.Talukdar
Debabrata Bandyopadhyay ... Petitioner Vs. The State of West Bengal & Ors. ... Respondents Examination : Review of answer scripts as well as review of marks given in the personality test: Petitioner a candidate for West Bengal Civil Services (Judicial Examination) 1997, alleged that even though he performed well he was given less marks in Mohammedan Law and Civil Procedure Code and given only 5 marks out of 100 marks in the personality test – Aggrieved by the same the petitioner approached West Bengal Administrative Tribunal which dismissed the application – As against that the petitioner filed this writ petition it was also dismissed. Held: Revaluation of answer script, even if not provided with the relevant rules and regulations may be made in certain situations. And it is found that the said answer scripts were produced before the Tribunal and according to the Tribunal marks have been rather liberally allotted by the Examiner. In such backdrop there can be no further scope for grievance. True, mere fact that Interview Board comprised of eminent personalities does not make it unassailable. But bias must be proved. Cases referred: 1. 1997 SCC (L&S) 1674 – Madhya Pradesh Public Service Commission Vs. Om Prakash Gupta & Anr. 2. AIR 1998 SC 162 – State of U.P. Vs. Rafikuddin & Others
ORDER
S.P.Talukdar, J.: This relates to an application under Article 226 of the Constitution.
This is directed against Order dated 5th January, 2004 passed by the West Bengal
Administrative Tribunal, hereinafter referred to as ‘the Tribunal’ in O.A.No.6547 of
1999.
696
The present petitioner, as applicant, approached the Tribunal with the following
grievances:-
He appeared in the W.B.C.S. (Judicial Examination), in 1997 with Roll No.”44”.
He secured 473 marks out of 1100 marks in the written examination. He qualified for the
personality test where he could secure only 5 marks out of 100. He missed the qualifying
marks for the final selection by 2 marks only in the aggregate. Besides having grievances
over the marks given to him in subjects like Mohammedan Law and Civil Procedure
Code, he alleged that his performance was not properly appreciated in the personality
test. He was just 2 marks short of the qualifying 480 marks out of total 1200 being 100
marks for each of the 11 subjects for the written examination and 100 for the personality
test. After publication of the result he applied for review but to no effect. He, therefore,
prayed for a direction upon the respondents for review of his answer scripts in respect of
the said two subjects, i.e., Mohammedan Law and Civil Procedure Code as well as for
review of the marks given in the personality test.
The Opposite Party/PSC as respondent No.2 contested the case by filing reply. It
was stated that all the answer scripts were evaluated by a single examiner in order to
maintain uniformity. The Interview Board was constituted with eminent persons and
marks were awarded by the Members unanimously. The applicant having failed to secure
the qualifying standard was not considered for being included in the merit list.
Learned Tribunal after taking into consideration of both sides, by order dated 5th
January, 2004 dismissed the application.
Learned Counsel for the petitioner, Mr.A.Sanyal, submitted that the petitioner was
deliberately left out and there could be no reason for denial of his prayer for review of the
answer scripts and giving him 5 out of 100 marks in the personality test. Mr.Sanyal
relying the decision in the case of Madhya Pradesh Public Service Commission Vs. Om
Prakash Gupta & Anr., reported in 1997 SCC, (L&S) 1674 submitted that this Court in
697
response to an application and in exercise of its writ jurisdiction can very well direct re-
evaluation of the answer scripts.
In the said case the correctness of the evaluation of the answer script was the
subject matter of a writ application filed earlier. In response to the contention that answer
papers were not correctly assessed, the High Court directed the PSC to appoint an Expert
Committee to re-evaluated the paper of the writ petitioner. The writ petitioner, thus,
benefit of the re-evaluation and took the opportunity of being selected by appearing at the
interview. In such background, the Apex Court in response to an appeal filed by Madhya
Pradesh Public Service Commission set aside the order of the High Court on the ground
that the subsequent contention sought to be raised by way of amendment after disposal of
the earlier writ petition was barred by the principles analogous to res judicata. The facts
and circumstances of the present case are, however, different.
Mr.Sanyal referring to the decision in the case of Ashok Kumar Yadav &
Ors.Vs.State of Haryana & Ors. As well as other matters, reported in AIR 1987, SC, 454
submitted that justice must be shown to have been done. He contended that justice is not
the function of the Courts alone; it is also the duty of all those who are expected to decide
fairly between contending parties. The Apex Court in connection with the said case gave
certain guidelines in the matter of conducting of examination as well as viva voce test.
But, noting could be placed before this Court in order to show that there had been any
violation of the aforesaid guidelines in connection with the holding of the West Bengal
Civil Service(Judicial) Examination which is now under consideration.
Learned Counsel, Mr.Sanyal, categorically asserted that recruitment to service, no
doubt, regulated by the statutory rules and it must be made in accordance with the rules
and any appointment made in breach of the same must be held to be illegal. Reference
was made also to the decision in the case of State of U.P. Vs.Rafikuddin and other
matters reported in AIR 1988. SC, 162 in support of the contention that even eminent
persons constituting the Board for taking interview cannot have any authority to disregard
any rules.
698
In the present case, the first grievance of the petitioner that the answer scripts of
the petitioner for the papers Mohammedan Law and Civil Procedure Code were not
properly examined and evaluation was not made correctly could not be substantiated by
any valid reason. The fact that the present petitioner got 32 and 27 marks respectively in
the said papers does not necessarily lead to the presumption that the answer scripts for the
papers were not properly examined.
According to the Mr.Sanyal, the fact that the petitioner was given only 5 out of
100 marks in the personality test was not only shocking, it goes a long way to suggest
that the authority concerned did not act in proper manner and was biased in its decision.
After giving due regard to the facts and circumstances of the case it appears that
the petitioners grievances are essentially centered around alleged wrong evaluation of the
answer scripts for Mohammedan Law and Civil Procedure Code and unreasonable
manner in which he was given just 5 out of 100 in personality test.
Re-evaluation of answer scripts, even if not provided with in relevant rules and
regulations, may be made in certain situations. And it is found that the said answer scripts
were produced before the Tribunal and according to the Tribunal “marks have been rather
liberally allotted” by the examiner. In such backdrop there can be no further scope for
grievance. True, mere fact that Interview Board comprised of eminent personalities does
not make it unassailable. But where is the material to even indicate ‘bias’?
Nothing could be placed or shown so as to suggest that the petitioner was
arbitrarily given 5 out of 100 in the personality test.
Is it not strange that the Public Service Commission could not recommend the
requisite number of candidates to even fill up the advertised vacancies? Mere allegation
of arbitrariness is not enough. It sounds more like a cry of despair and incompetence. The
fact that the petitioner has missed the qualifying standard by only 2 marks does not bring
699
about any change in complexion. As discussed earlier, this could not justify lowering of
standard in order to accommodate those who failed to qualify.
Considering all such facts and materials, we find that the order under challenge
does not suffer from any such infirmity or impropriety which calls for or justifies any
interference by this Court.
Accordingly, the present application being W.P.S.T.No.496 of 2004 be dismissed.
The order under challenge being Order dated 05.01.2004 passed by the West
Bengal Administrative Tribunal in O.A.No.6547 of 1999 stands affirmed.
There is no order as to costs.
***
700
IN THE HIGH COURT AT CALCUTTA Constitutional Write Jurisdiction
W.P.S.T.No. 648 of 2004 D.D. 22.12.2004
The Hon’ble Mr. Justice Aloke Chakrabarti The Hon’ble Mr. Justice S.P.Talukdar
Sri Susanta Bhattacharya ... Petitioner Vs. The West Bengal Public Service Commission & Ors. ... Respondents Examination : Revaluation of answer scripts: The petitioner appeared for various examinations in the West Bengal Civil Service Examination 1993 – Petitioner was unsuccessful in the written examination – Petitioner approached Administrative Tribunal which was dismissed – Against that this writ petition was filed – In view of the fact that no complaint was made by the petitioner that some of the answers in his answer scripts were not valid at all and that his complaint was that the marks assigned to him does not reflect proper assessment of his quality – The High Court dismissed the writ petition. Held: Considering the aforesaid judgments, it appears that in appropriate case the Court can interfere in respect of a written examination in connection with the selection process only when such superintendence is found required and reasonable in the facts involved. In the present case in view of recording by the learned Tribunal that the learned Tribunal had gone through the records produced by the respondent PSC for examination by the Tribunal, there is no occasion to presume that all relevant records were not produced before it.
Cases referred: 1. AIR 1972 Cal. 348 – Mehboobur Rahman Vs. Public Service Commission West Bengal 2. AIR 1979 SC 429 – Manager, Government Branch Press vs. D.B.Beliappa 3. AIR 1990 Patna 196 – Sheodhari Prasad Sah vs. State of Bihar 4. 1992 Supp (2) scc 118- Krishan Yadav vs. State of Haryana 5. AIR 1993 Cal 1 – University of Calcutta vs. Sm. Gopa Chakraborty 6. 1995 Supp (1) SCC 325 – Subash Candra Verma vs. State of Bihar 7. 1995 (4) SCC 73 – A.K.Kaul Vs. Union of India 8. 1997 WBLR (Cal) 210 – Ashutosh Ghosh Vs. University of Calcutta 9. 1997 (6) SCC 674 – Rajesh Kumar v. Institute of Engineers 10. 2000 (1) CHN 375 – University of Calcutta vs. Sk. Monir 11. AIR 2004 SC 163 – U.P. Public Service Commission vs. Subhash Chandra Dixit 12. 2004 (6) SCC 714 – Pramad Kumar Srivastava vs. Chairman, Bihar P.S.C.
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ORDER
Aloke Chakrabarti, J. – Petitioner appeared in the West Bengal Civil Service
Examination, 1993 from Calcutta Center for all the groups namely A,B,C and D
Minimum qualifying marks for written examination was fixed for declaring a candidate
eligible to appear in personality test examination fixing 30 marks for each paper with
minimum aggregate number at prescribed percentage. Petitioner stated in the written
petition that he performed in the written examination to his satisfaction and that petitioner
should obtain more marks than the qualifying aggregate marks in written examination.
But when result in written examination was published only names of selected candidates
for personality test of groups A, B and C were displayed in the notice board.
As the petitioner could not find his name in the list of selected candidates though
he was confident that he got good marks he made a representation to the Chairman,
Public Service Commission requesting him to look into the matter personally and give
reply to the petitioner without delay. No reply came and being aggrieved, petitioner
moved an original application before West Bengal Administrative Tribunal which was
dismissed by the impugned judgment of the learned tribunal.
Heard Mr.Saktinath Mukherjee, learned senior counsel for petitioner and
Mr.Bikash Ranjan Bhattacharyya, learned counsel for respondent nos. 1 to 3 being the
authorities of public service commission.
Only contention made by the petitioner is that answer scripts of the petitioner be
directed to be brought to court and in spite of such direction given on three occasions by
the learned tribunal, authorities failed to bring the said answer scripts and only some
records including the tabulation sheet were produced and surprisingly the learned tribunal
dismissed the petition only considering the tabulation sheet without insisting for
production of answer scripts. It is the contention of the petitioner that though evaluation
of answer scripts can not be directed by the tribunal/court but scrutiny of answer scripts
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for finding out whether all the answers given by the candidate have been evaluated and
taken into consideration for finding the total marks in each subject, should be directed
when a candidate challenges the examination. In support of his contention Mr.Mukherjee
relied on the judgments in the case of Manager, Government Branch Press vs.
D.B.Beliappa reported AIR 1979 SC 429, Mehboobur Rahman vs. Public Service
Commission, West Bengal reported in AIR 1972 Cal 348, Subash Chandra Verma vs.
State of Bihar reported in 1995 Supp (1) SCC 325, U.P. Public Service Commission vs.
Subhash Chandra Dixit reported in AIR 2004 SC 163, A.K.Kaul vs. Union of India
reported in 1995 (4) SCC 73. On the question of examining answer scripts, reliance was
placed on the judgment in the case of University of Calcutta vs. Sk.Monir reported in
2000 (1) CHN 375, Sheodhari Prasad Sah vs. State of Bihar reported in AIR 1990 Patna
196, Ashutosh Ghosh vs. University of Calcutta reported in 1997 WBLR (Cal) 210,
Rajesh Kumar vs. Institute of Engineers reported in 1997 (6) SCC 674, University of
Calcutta vs. Sm Gopa Chakraborty reported in Air 1993 Cal 1 and Krishan Yadav vs.
State of Haryana reported in 1992 Supp (2) SCC 118.
On behalf of respondents, heard Mr.B.R.Bhattacharyya, learned counsel, who
contended that in terms of tribunal’s direction records were produced and such
production of records was noted in the impugned order of the learned tribunal.
Contention of the petitioner that answer scripts were not produced is on presumption and
surmises and in case on non-production of such answer scripts in spited of directions, the
tribunal would have recorded the said fact. Mere mentioning of tabulation sheet, does not
indicate that answer scripts were not produced. In such circumstances, it is contended by
Mr.Bhattacharyya, learned counsel appearing for the respondents there is no ground for
interference by this court when records were perused by the learned tribunal and
impugned order was passed there. In support of his contention, learned counsel referred
to the judgments in the case of Pramad Kumar Srivastava vs. Chairman, Bihar Public
Service Commission, Patna reported in 2004 (6) SCC 714. It is contended by
Mr.Bhattacharyya that the fact that records were produced including the answer scripts
before the learned tribunal will also be supported from the fact that petitioner has not
made any effective complaint in any representation that answer scripts did not contain
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evaluation in respect of each answer given by petitioner or that answer scripts are not
available. It is the argument of Mr.Bhattacharyya, that in the facts and circumstances of
the case there is no reason for giving direction for production of records including the
answer scripts any further. It is further argument of the respondent that a candidate is not
entitled to maintain application asking for production of answer scripts of such
examination as a matter of right.
It is further contended by Mr.Bhattacharyya that there is no pleading made by the
petitioner even before the learned Tribunal which justified the relief prayed for by
petitioner.
After considering the aforesaid respective contentions, it appears from pleading
available and contents of various representations made by petitioner available on records
that there was no complaint on the part of the petitioner that some of the answers in his
answer scripts were not evaluated at all by the examiner. Nature of complaint was that
petitioner had performed very well in the examination and therefore, marks assigned to
him did not reflect the proper assessment of his quality. Said complaint cannot be made a
ground either before the tribunal or in the writ court in respect of such examination. It
also appears that learned tribunal thrice directed production of records and it is also
available from the order sheet that records were produced. From the order it does not
appears that answer scripts were not produced in compliance of direction of the learned
Tribunal. In such circumstances, there is no material to hold that answer scripts were not
produced before the learned Tribunal. Therefore, after the impugned judgment was
passed and there being no recording by the learned Tribunal that answer scripts were not
produced in spite of direction of the learned tribunal, we don not find any ground for
giving any further direction for production of answer scripts.
With regard to the law in this regard, we find that number of judgments were cited
by the respective parties and the position in law is clear. In the case of D.B. Beliappa
(supra) the question involved was protection of Articles 14 and 16(1) whether is available
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to a temporary government servant if he has been arbitrarily discriminated against. This
judgment does not directly help deciding the matter in our hands.
The case of A.K.Kaul (supra) was cited for showing the law as regards power of
judicial review and its extent.
The case of Mehboobur Rahman (supra) dealt with a case wherein the Public
Service Commission’s action was held to be arbitrary and in that background power of
writ court to interfere was upheld. In this case the allegation against the commission was
of exclusion of a candidate arbitrarily and wrongfully.
The case of Subash Chandra Verma (supra) dealt with evaluation of answer
sheets. It was held in the said judgment that Public Service Commission is made
autonomous in order that functions could be carried on independently, fairly and
impartially. But as the facts and questions involved therein are different from the present
one, the said judgment does not help either of the parties in present proceeding.
In the case of Subash Chandra Dixit (supra), it was held that the power conferred
on the Public Service Commission shall not be used arbitrarily.
The case of Sk.Monir (supra) decided by a Division Bench of this court dealt with
the facts wherein answer scripts were destroyed during pendency of the litigation and it
was held that this fact justifies drawing of an adverse presumption that had answer scripts
been produced before the court that would go against the university. In view of the
findings on facts recorded hereinabove, this judgment also does not help the petitioner.
Similar were the facts in the case of Sheodhari Prasad Sah (supra) and therefore,
the same also does not help the petitioner.
The case of Shri Ashutosh Ghosh (supra) also dealt with the facts involving non
production of the papers in spite of direction by the court and therefore, justifying
drawing adverse inference.
705
The facts involved in the case of Rajesh Kumar (supra) also are different from the
facts involved in present case.
The case of Sm Gopa Chakraboty (supra) is also in the facts of loss of papers of
the candidate by the university which is different from present case.
The judgment in the case of Krishnan Yadav (supra) also does not apply in
present facts.
As against this, on behalf of respondents reliance was placed on the judgment in
the case of Pramad Kumar Srivastava (supra) wherein it was held that in absence of a
specific provision conferring a right upon an examinee to have his answer books
reevaluated, no direction can be given for reevaluation of the answer books.
Considering the aforesaid judgments, it appears that in appropriate case the court
can interfere in respect of a written examination in connection with the selection process
only when such superintendence is found required and reasonable in the facts involved.
In the present case in view of recording by the learned Tribunal that the learned Tribunal
had gone through the records produced by the respondent for examination by the tribunal,
there is no occasion to presume that all relevant records were not produced before it.
Apparently such relevant record includes answer script for which direction was earlier
given. In such background, only because in the judgment, tabulation sheet was discussed
separately, there is no ground for drawing presumption that answer scripts were not
produced. Moreover, the petitioner did not make out any case at any contemporaneous
point of time making any complaint of no evaluation of his answer script or any
particular answer in the answer script. The representation of the petitioner as also his writ
petition make the position clear and there is no reason in such background of pleadings
which justifies drawing of an inference that answer scripts or answers to any particular
question or questions of the petitioner were not evaluated. Therefore, the contention of
the petitioner advanced on the basis of present material do not justify and interference on
the present writ application and the same is hereby dismissed.
***
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IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION
M.A.T. No.491 of 2005 D.D. 21.4.2005
Hon’ble Mr. Chief Justice V.S.Sirpurkar Hon’ble Mr. Justice A.K.Ganguly
Somak Das ... Appellant Vs. The State of West Bengal & Ors. ... Respondents Reservation for Physically Handicapped persons: Petitioner who was unsuccessful for the post of West Bengal Civil Services (Judicial) 2003 alleged that he being a physically handicapped person he ought to have been selected in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and full participation) Act, 1995 - The writ petition filed by him was rejected by the High Court – In this appeal the Division Bench in view of the fact that 135 candidates were selected as against 141 vacancies and also the marks secured by the petitioner and similarly situated candidates with physical disabilities allowed the Appeal with a direction to select the petitioner and such candidates. Cases referred: 1. 1986 SCC (Supp.) 285 – Omprakash Shukla vs. Akhilesh Shukla 2. (1995) 3 SCC 486 - Madan Lal Vs. State of J&K 3. (1997) 9 SCC 527 – Raj Kumar & Ors. Vs. Shankti Raj & ors. 4. (1998) 3 SCC 694 – Union of India Vs. N.Chandrasekharan
ORDER
Heard finally with consent of parties.
1. This matter pertains to the selection and appointment of petitioner for the post of
West Bengal Civil Services (Judicial) 2003. The writ petitioner appeared for the
necessary tests and admittedly cleared them. However, there was one more factor, which
he had reported while applying for the candidature. He had pointed out that he was
suffering from physical disability and he was a physically challenged candidate. He was
not selected and, therefore, he approached the Court by way of a writ petition wherein he
pointed out that there was no reservation provided in terms of Section 33 of the Persons
with Disabilities Equal opportunities, Protection of Rights and full participation) Act,
1995. The learned Judge took the view that the petitioner had appeared at the selection
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test, succeeded and thereafter was called for interview but he was not selected. It was
clear that he had participated in the selection process as a general candidate and did not
succeed and, therefore, he could not turn back and find fault with the selection process.
The learned Judge dismissed a few other petition with which we are not concerned today.
The learned judge accordingly dismissed the writ petition.
2. The appellant now is before us by way of this appeal. The learned counsel for the
appellant points out it was an admitted position that the concerned appellant was a
physically challenged person and that there was in reality no reservation made for the
physically challenged persons.
3. The learned Counsel for the appellant drew our attention to section 33 of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 and contended that it was imperative under that Act for every
government to appoint in establishment such percentage of vacancies not less that 3% for
persons or class of persons with disability, like (i) blindness or low vision; (ii) hearing
impairment; (iii) locomotor disability or cerebral palsy, as provided in that provision. We
are not concerned with the proviso in the circumstances of this case. Relying on that
section the counsel averred that there ought to have been reservation for the handicapped
persons.
4. The learned counsel argues that such reservation for the physically challenged
persons not being there in the present selection the whole selection process was rendered
illegal on that score. The learned Counsel has invited our attention to the advertisement
and from that it seems that there was no reservation for the physically challenged
persons. There are 141 vacancies shown, out of which 103 were for general category, 13
for scheduled caste, 10 for scheduled tribes and 7 for backward classes. Beyond these,
there does not appear to be any reservation. Our attention was also invited by the learned
Counsel to the contents of the advertisement which suggest that for the physically
handicapped candidates having disability 40% above the age limit shall be released upto
45 years. We are taken through the application form wherein it is suggested that the
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petitioner/appellant Somak Das had claimed to be belonging to general category and had
also tick-marked the entry under ‘PH’ (physically handicapped). Therefore, it was
obvious that the petitioner/appellant had pointed out that he was a physically handicapped
person but had not claimed for any relaxation of age on that account. It is, no doubt, true
thereafter he appeared for the written test and cleared the same and as a result of that he
was called for the personal interview also.
5. The learned Counsel for the appellant/petitioner has thereafter taken the pains to
point out that a select list of 135 persons was released, wherein the name of the
appellant/petitioner did not figure.
6. The learned Counsel also relied on a letter dated 14th October, 2004 (Annexure
P/5 to the writ petition) which seems to suggest that the appellant/petitioner was required
to bring a Certificate suggesting that he was a physically handicapped person. That is
apparent from paragraph 3 of the said letter.
7. There can be no dispute with the proposition that once a person chooses to take
part in the selection, he cannot turn back and call the names to the selection process. This
principle is settled in Madan Lal-Vs- State of J & K. reported in (1995) 3 SCC 486,
Omprakash Shukla – vs- Akhilesh Shukla reported in 1986 SCC (Supp.) 285, and Union
of India vs. N.Chandrasekharan, reported in (1998) 3 SCC 694. However, where there
has been an error which would go to the very root of the selection the Constitutional
Courts are not debarred from interfering. That is the ratio of the Supreme Court in Raj
Kumar & Others Vs. Shakti Raj & Ors. Reported in (1997) 9 SCC 527.
8. In the aforementioned decision, the Supreme Court observes in paragraph 16 as
follows:
“ …. It is true, as contended by Sri Madhava Reddy, that this Court in Madan Lal vs. State of J& K and other decisions referred therein 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
709
this case, the Government have committed glaring illegalities in the procedure to get the candidates being examined under the 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. …”
9. Similar is the situation here. In not reserving any posts for physically disabled
candidates as per the mandate of Section 33 of The Persons with Disabilities (Equal
Opportunities. Protection of Rights & Full Participation) Act, 1995, a glaring procedural
irregularity has crept in Not only this, but it has to be realized that the challenge is not to
the constitution of the Selection Board or the method of selection. The challenge is
regarding the very availability of the post for the disabled persons. Here was an
advertisement where we do not find any reservation for the physically handicapped
person and as such, reservation not being there, it was undoubtedly a basically defective
advertisement. However, the fact cannot be ignored that the appellant/petitioner did not
challenge the advertisement and instead chose to appear.
10. We do not find anything wrong in the view taken by the learned Judge under
circumstances. However, we find that the learned Judge did not address on the issue as to
whether the selection process suffered from inherent defects. We have gone through the
judgment very carefully. The only ground on which the learned Judge rejected the
petition was that the appellant/petitioner had taken part in the selection process and
having found himself unable to succeed in the same had turned to challenge the selection
process. That undoubtedly is true. However, in our opinion, the learned Judge should
have also addressed himself on the issue as to whether there was any inherent error in the
selection process. We find that non-reservation for the category ‘physically handicapped
persons’ would amount to an inherent error.
11. When we confronted this the learned Government Pleader very frankly admitted
that the advertisement was erroneous. We appreciate the fairness on the part of the
Government Pleader who makes no bones about the aforementioned inherent error, which
had crept, in the said advertisement. We also confronted this to the learned Counsel
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appearing for the Public Service Commission who, however, contended that the
advertisement was issued on the basis of the requisition of the Government and that
strictly in terms of the requirement of the Government and the Recruitment Rules. There
can be no doubt that Public Service Commission, which published the advertisement,
would undoubtedly be guided by the communications of the Government. However, that
would not absolve either the Government or the Public Service Commission if the
advertisement is inherently incorrect. The question is, therefore, as to what is the course
to be taken under the circumstances.
12. It is reported before us that 135 candidates have already been selected though
vacancies were for 141 candidates. It is also reported in terms of the selection such
candidates have also joined in their posts. None of them was a party to this writ petition
or to this appeal. It will not, therefore, be possible to upset the whole selection process if
any via media can be found out to allay the grievances of the petitioner/appellant. In that
view we asked the Government Pleader as to whether any post was available for being
filled up. The learned Government Pleader reports to us that 6 posts made for the S.T.
have not so far been filled up. Besides that, he points out that some 2/3 persons who were
initially selected have not chosen to join leaving those posts vacant. Specific question
was put to the learned counsel for the Public Service Commission, as to whether there
was any benchmark for the written test and also for oral interviews. The learned counsel
very frankly admitted that the petitioner had scored above the benchmark so far as the
written test and the oral interviews were concerned. The learned counsel pointed out that
the candidate had to score 40% for being included in the merit list and we find that the
present candidate has scored more than that and his score being 47%. The position of the
candidate in the merit list is at 166. We also tried to gather from the learned counsel, for
the respondent as to how many physically handicapped persons had cleared the
examination and the interview. We were told that there are only 2 candidates they being
(1) Shri Subhasis Bhattacharya who had scored 598 and his position is 114 in the general
standard list and the petitioner/appellant who scored 564 marks and was placed at 166
positions in the general standard list. It is needless to mention that had there been any
reservation provided, then the two persons namely, Subhasis Bhattacharya and Somak
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Das, would have found their names in the select list as of right on the basis of their score
in the written test as well as in the oral interview. Under these unusual circumstances, we
feel that complete justice would be done in the two physically handicapped persons if a
direction is given to include their names in the select list and further to offer them an
appointment in the post sought for.
13. Accordingly we set aside the judgment of the learned Single Judge and allow this
appeal with a direction as we have already mentioned above. In this manner Subhasis
Bhattacharya has not challenged the selection process nor is he before us. However a
direction will have to be given in his favour also as otherwise the petitioner appellant
cannot succeed and according to us, he is entitled to succeed in law. It is for this reason
the appeal, treating the same as on days list, must succeed and the respondents are
directed to act according to the directions issued.
14. The application for injunction (CAN 1473/05) also stands disposed of.
15. No order as to costs.
16. If urgent Xerox certificate copy of this judgment and order is applied for, the
same be supplied to the applicant upon compliance of all the formalities.
***
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