No. of vacancies should be notified in Recruitment notification
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W.P.No.16485/2002
D.D. 16.5.2003
The Hon'ble Mr. Justice Bhaskar Bhattacharya
Kazi Abdul Hasen & Others – Petitioners
Vs.
State of West Bengal & Ors. - Respondents
No. of vacancies should be notified in Recruitment Notification
The matter relates to recruitment to fill up the vacancies in the West Bengal Civil Service (Judicial)
on the basis of results of the West Bengal Civil Service (Judicial) Special Examination 2000. In the
recruitment notification, PSC had not declared the number of vacancies. PSC send a list of 57 selected
candidates to the Government for recruitment to the Judicial Department. The petitioners approached the
High Court with the grievance that neither the merit list nor the total number of seats available was
published by PSC. The High Court rejected the contention of the petitioners that the notification should be
quashed as number of vacancies was not notified but considering the fact that the number of vacancies
occurred as on the last date for receipt of application was 78, directed the PSC to send the entire list of
successful candidates to the Government with further direction to the Government to fill up the vacancies as
per the Rules. The High Court also directed the PSC to notify the exact number of vacancies at the time of
giving advertisement for recruitment in future.
Cases referred:
1. 1986) 4 SCC 268 Miss Neelima Shangla vs. State of Haryana and Others
2. AIR 1993 SC 2606 Hoshair Singh vs. State of Hariyana
3. AIR 1994 SC 736 State of Bihar vs. Secretariat Assistant, Successful examinees
Union and others
4. AIR 1996 SC 976 Asok Kumar vs. Chairman, Banking service Recruitment Board and others
5. AIR 1997 SC 3007 State of Hariyana vs. M/s. Ajoy Walia
6. 2002(4) SCC 247 All India Judges Association & Ors. –vs- Union of India & Ors.
JUDGMENT
By this application, the writ petitioners, to whom the Public Service Commission issued interview
letters for personality test along with other successful candidates, have prayed for direction upon the
respondents to declare the number of vacancies which existed for the West Bengal Civil Service (Judicial)
Special Examination, 2000, with a further direction upon the Public Service Commission to publish and
recommend the names of all eligible candidates who came within the limit of qualifying marks fixed in the
examination for appointment. The writ petitioners have further prayed for direction upon the State
respondent to de-reserve eleven vacancies earmarked for Scheduled Tribes categories so that the
petitioners could stand a fair chance for recommendation to those vacancies. The petitioners have prayed
for further direction upon the State respondent to implement the directions given by the Supreme Court of
India in the case of All India Judges Association and Others vs. Union of India and Others reported in
2002(4) SCC 247.
The following facts are not in dispute:
a) Public Service Commission, West Bengal, published an advertisement for holding
examination for the recruitments to the West Bengal Judicial Service for the year 2000 and
he said examination was described as West Bengal Civil Service (Judicial) Special
Examination, 2000. In the said advertisement criteria for appearing in the examination
were mentioned; however, the number of vacancies was not announced and it was
declared that the same would be announced by a subsequent notification.
b) Pursuant to the aforesaid advertisement, the petitioners made applications for appearing in
the said examination and subsequently call letters were issued to the petitioners for the
written examination held from 11th August, 2001 to 20th August 2001. In the
advertisement, the probable time of the examination was however, mentioned as
November-December, 2000.
c) The result of the written examination was published on 25th May, 2002 by press circulation
and thereafter the Public Service Commission issued interview letters for personality test to
the petitioners along with the other successful candidates. Altogether 120 candidates
including the petitioners were called for the personality test and such test was held from
11th June, 2002 to 26th June, 2002.
d) Ultimately, final results prepared on the basis of aggregate of the marks obtained in the
written examinations and the personality test, were published by press circulation on 22 nd
August 2002 and the said list contained the names of only 57 candidates who were
selected and recommended for the recruitment to the Judicial Department of the
Government of West Bengal by the West Bengal Public Service Commission as detailed
below:
i)
General candidates
44
ii)
Backward Class
06
iii)
Scheduled Caste
07
-Total
57
-The petitioners' names did not find place in the final result.
The petitioners complain that neither the merit list for the written examination and/or personality
tests nor the total number of available seats was notified or published by the Public Service Commission. In
this writ application, the petitioners have asserted that they had come to know from enquiries that 156
vacancies were available for the year 2000, but in total disregard to the norms and rules, the State
Government forwarded only 68 vacancies to the Public Service Commission as available vacancies for the
said examination. According to the petitioners, even out of 68 declared vacancies, 11 vacancies which were
kept apart for Scheduled Tribe candidates were not recommended by the Public Service Commission due to
the reason of non-availability of the Schedule Tribe candidate. It is specifically stated that in the list of 120
candidates who were called for the personality test, not a single candidate under Schedule Tribe category
figured.
In paragraph 11 of the writ application it is categorically averred that for the general candidates,
qualifying marks fixed for recommendation by the Public Service Commission was 35% and the last
candidate recommended from the general category had obtained 58%. According to the petitioners they
have all obtained above 35% marks in the examination and as such, the petitioners as the general
candidates will have fair chance for recommendation by the Public Service Commission if all the vacancies
are filled up
In the writ application, the petitioners by relying upon the observation of the Supreme Court in the
case of All India Judges Association and Others –vs- Union of India reported in 2002(4) SCC 247 have
contended that as per direction of the said Court filling of all existing vacancies by March, 2003 is mandatory
and as such, it is the duty of he Government of West Bengal to fill up all vacant posts as on March 31, 2003
from the candidates who have obtained the qualifying marks.
The petitioners thus pray for necessary direction upon the respondents concerned.
This writ application has been opposed by State of West Bengal, the High Court Administration and
the Public Service Commission by filing three separate sets of affidavits in opposition.
The defence taken by the State of West Bengal may be summarised thus:
a) The Public Service Commission took examination of the eligible candidates in accordance
with the provisions of the West Bengal Civil Service (Judicial) Recruitment Rules, 1951
published as pr notification No.1713-J dated March 31, 1951 as amended up to date. For
the said examination age restriction was relaxed to not less than25 years and not more
than 40 years as on January 1, 2000. Upper age limit was made relaxable by five years for
schedule caste and schedule tribe candidates of West Bengal, by three years for backward
classes candidates of West Bengal and upto 45 years for physically handicapped
candidates and by two years for those candidates who have been in Government service
for at least two years.
b) The respondent No.4 as per communication sent under memo no.A/149/PSC(A) dated
August 2, 2002 recommended 57 candidates out of 68 vacancies in the West Bengal Civil
Service (Judicial) on the basis of results of the West Bengal Civil Service (Judicial) Special
Examination 2000 and the names had been arranged in order of merit. It is however stated
that respondent no.4 could not sanction candidates against eleven schedule tribe
vacancies for want of qualified candidates of such category.
c) Steps were being taken in accordance with the provision of Sub-section 2 of Section 6 of
West Bengal Schedule Caste and Schedule Tribe (Reservation for vacancies in service
and posts) Act, 1976 for the purpose of dereservation of 11 vacancies reserved for
Schedule Tribe candidates by referring the matter to the Department of Backward Classes
Welfare, Government of West Bengal.
d) In the event of de-reservation of 11 reserved posts, the same should be filled up from
qualified general candidates to be recommended by Public Service Commission on the
basis of their performance in West Bengal Service (Judicial) Special Examination, 2000.
e) The number of total vacancies in general category plus reserve category at the time of
initiation of the selection process under reference was 68 and as such, the vacancies
occurred subsequently could not be filled up on the basis of the result of the West Bengal
Civil Service (Judicial) Special Examination, 2000.
The defences of the Public Service Commission, the respondents nos.4 to 7 are as follows:
a) Rules relating to recruitment for West Bengal Civil Service (Judicial) Special Examination,
2000 were framed and notified by the State prescribing that the method of recruitment to the
service would be a competitive examination i.e. written test followed by a personality test. It
was also laid down in the rules that the merit of each candidate would be determined on the
basis of total marks obtained in the written examination and in the personality test.
b) It was open to the Commission to prescribe the qualifying marks which the candidates must
obtain at the written test before becoming eligible for personality test. The notification of West
Bengal Civil Service (Judicial) Special Examination, 2000 issued by the Commission was
merely an invitation to candidates possessing specific qualification to the posts concerned. It
did not hold out any promise that the selection would be made or if it was made, the selected
candidates would be appointed. The candidates did not acquire any right merely by applying
for selection or for appointment, after selection.
c) The duty of the Public Service Commission is to make available to the government a complete
list of qualified candidates categorywise i.e. General, Scheduled Caste, Schedule Tribe, etc.
arranged in order of merit taking into consideration the number of vacancies reported by the
State for each category. Thereafter the Government of West Bengal is to make selection
strictly in the order in which they have been placed by the Commission as a result of the
examination conducted by it. The Commission had no right to declare the number of
vacancies in the notification issued by it when the Government had not asked for it.
d) The qualifying marks fixed by the Commission to become eligible for personality test or vivavoce in any competitive examination could not be disclosed to the candidates for the
recruitment and the rules framed by the Government had been followed in the matter of
recommendation.
The High Court Administration in its affidavit has disclosed its role and has dealt with those parts of
the averments which concerned the High Court. It is stated that Special Secretary, Judicial Department by
letter dated 11th August, 2002 requested the Registrar, Judicial Service High Court to furnish with exact
vacancies as on date to be filled on the basis of the result of the W.B.C.S. (Judicial) Special Examination,
2000 and the information as required was duly furnished on 30th September, 2000 disclosing that on 1st
September, 2000 the vacancy position in the lowest rung of the W.B.C.S. (Judicial) stood at 111 and it was
also stated in the said letter of High Court issued on 30th September, 2000 that actual vacancy position
could only be ascertained upon declaration of result by Public Service Commission in relation to the last
examination. The Government appointed 43 officers on the basis of results of W.B.S.C. (Judicial) Special
Examination of 1999. Pursuant to the results of W.B.S.C. (Judicial) Special Examination 2000, the
Government under Judicial Department notification no.62 dated February 1, 2003, appointed 39 officers and
they have been posted for training at different headquarters of the districts. Under Judicial Department's
notification no.895 J dated February 7, 2003, 8 officers have further been appointed by the Government on
the basis of the results of W.B.C.S. (Judicial) Special Examination, 2000. The Government has also
informed the High Court that further communication would follow in due course regarding appointment of 10
candidates recommended by the Commission for appointment as Civil Judge (Junior Division).
It is further stated that as no suitable Schedule Tribe candidate was found during the course of
selection, it is the Government which is the appropriate authority to de-reserve the reserved vacancies and
such vacancies cannot be filled up by any unsuccessful candidate and the petitioners cannot claim right
over such vacancies.
Subsequently, a supplementary affidavit was affirmed by the Registrar, Judicial Service, High Court
clarifying the actual vacancies. In paragraph 4 of such affidavit it is stated that 92 vacancies were available
for the year 1999 and were to be filled up. It appears from the records that the then Registrar (Judicial
Service) by letter dated 4th August, 2000 to the Joint Secretary, Government of West Bengal, Judicial
Department stated that 28 posts were available for filling up for different reasons as mentioned therein. The
Government was requested to appoint 120 candidates including the vacancies for the year 1999.
It is further stated that Special Secretary, Judicial Department replied such letter with a request to
furnish the Judicial Department with exact vacancy position as on date in the W.B.C.S. (Judicial) to be filled
on the result of W.B.C.S. (Judicial) Special Examination, 2000. It was further stated that prospective
vacancies could not be taken into account unless those vacancies had actually accrued.
The then Registrar (Judicial Service) with reference to the said letter dated 11 th August, 2000
issued a reply dated 30th September, 2000 informing thereby that as on 1st September, 2000 the vacancy
position in the lowest stage of the W.B.C.S. (Judicial) stood at 111. It was also informed that actual vacancy
position could be ascertained upon declaration of the result by the Public Service Commission in relation to
the last examination of 1999.
In paragraph 5 of the said affidavit it is stated that up to July, 2000 i.e. the date of publication of the
advertisement for W.B.C.S. (Judicial) Special Examination, 2000, fourteen vacancies were ascertained to be
available in applying the above principle as a result of retirement of 10 Higher Judicial Service Officers,
elevation of three Higher Judicial Service Officers to the Bench of this High Court and death of one officer of
the rank of Civil Judge (Senior Division). So, the vacancy position stood at 106 (94+14). On August 22,
2000 i.e. on the last date of submission of application of the said examination, two Higher Judicial Service
Officers further retired from service. Therefore, the vacancy position stood at 108. In between 1st
September, 2000 and 31st December, 2000, it was found that nine Higher Judicial Service Officers retired
from service, three new Courts were created, two Courts of Additional District Judge at Barasat and one
Juvenile Court for the District of North Bengal at Cooch Behar. It appears from the letter dated August 4,
2000 of the then Registrar (Judicial Service) that three new Courts of Additional District and Sessions
Judge, one at Malda and two at Barasat were originated. But the Court at Malda was established under
notification no.1340-J dated 11th February, 1999 and two Additional District Judges' Courts at Barasat were
formed under notification no.11811-J and 11913-J dated 24th November, 2000 respectively and Juvenile
Court for North Bengal districts was constituted by notification no.11629-J dated 16th November, 2000 with
effect from 20th November, 2000. But taking into account the creation of three new Courts the vacancy
position as on 1st September, 2000 was reported to be 111 in the letter of the then Registrar (Judicial
Service) on 30th September, 2000. Actually the vacancy position as on 1st September 2000 should be 108.
However, upto 31st December, 2000 the same stood at 120. It is further stated that from the available office
records it appeared that 42 officers in the rank of Civil Judge (Junior Division) were appointed by the Judicial
Department, Government of West Bengal, on the basis of the result of W.B.C.S. (Judicial) Examination,
1999. The High Court has received appointment of 47 Judicial Officers of the rank of Civil Judge (Junior
Division) made by government on the basis of result of W.B.S.C. (Judicial) Special Examination, 2000.
From the aforesaid pleadings the following questions arise for determination in this writ application:
a)
Whether by virtue of the results of the examination in question, all vacant posts
available till March, 2003 can be filled up from the candidates who have obtained
qualifying marks in the examination?
b)
How far the vacant posts can be filled up on the basis of the result of the examination
in question?
c)
Whether the Public Service Commission was obliged to publish the results of all
successful candidates who have obtained the pass marks in the examination in
accordance with the rules prescribed therefore?
d)
Whether process of selection has been vitiated for not declaring the exact number of
vacancies?
e)
What should be the exact number of vacancies to be filled up on the basis of
examination in question?
In the writ application, the grievance of the writ petitioners was that there is no rule framed by the
appropriate authority governing the recruitment to the West Bengal Civil Service (Judicial). It appears that
the said allegation is baseless. As pointed out earlier there are rules for recruitment to the West Bengal
Civil Service (Judicial) called the West Bengal Civil Service(Judicial) Examination Rules and such rules
were published vide notification nos.1713-J, 3753-J, 3674-J and 10487-J dated 31st March, 1951, 2nd May,
1957, 1st May, 1959, and 17th December, 1050. Subsequently, some amendments have also been effected
by virtue of further notifications. It appears from the aforesaid rules that recruitment to the aforesaid posts in
any one year shall be made by conducting an examination in the manner of prescribed therein. It further
appears that age restriction of the candidates fixed by the rule shall be on the basis of their respective age
as on 1st January of the year in which the examination is held. It further appears that according to such
rules there is no separate qualifying marks for the individual subject or for the personality test and merit of
each candidate shall be determined on the basis of total marks obtained by him in all the written papers of
the examination and in the personality test but no candidate who fails to obtain atleast 50% of the marks in
aggregate shall be deemed to be qualified for appointment and that Public Service Commission shall have
discretion to fix the qualifying marks in aggregate. It is further provided that the West Bengal State Service
Recruitment Rules shall also apply to the West Bengal Civil Service (Judicial) to the extent of such
particulars which are common to all other posts and services under State Government provided that the
amendments in all such recruitment rules which may be made from time to time shall be extended to the
West Bengal Civil Service (Judicial) only on previous consultation with High Court, Calcutta.
I now propose to deal with the points formulated above:
Point – (a)
Mr. Pal, the learned Counsel appearing on behalf of the petitioners vehemently contended that in
view of the time limit fixed by the Apex Court in the case of All India Judges Association (supra) reported in
(2002) 4 SCC 247, all vacant posts of Civil Judge (Junior Division) or Judicial Magistrate should be filled up
by March, 2003 and as such, the petitioners who have obtained pass marks in the examination which
according to the petitioners is 35% of the aggregate should get appointment for filling up those posts. Mr.
Pal contends that the respondents are bound to comply with the aforesaid direction of the Supreme Court
and, as such, on the basis of results of the examination in question those posts should be filled up.
Mr. Kargupta, the learned Counsel appearing on behalf of the State respondent and Mr. Ghosh
appearing on behalf of the High Court Administration, on the other hand, have seriously opposed the
aforesaid contention of Mr.Pal and have submitted that on the basis of examination of 2000, posts
subsequently fallen vacant, cannot be filled up, as, in such a case, the candidates who have subsequently
acquired qualifications of appearing at the West Bengal Civil Service (Judicial) Examination will be deprived
of the right to compete for those posts. In support of such contention, they placed strong reliance upon the
following decisions:
1) Hoshair Singh vs. State of Hariyana reported in AIR 1993 SC 2606.
2) State of Bihar vs. Secretariat Assistant, successful examinees Union and others
reported in AIR 1994 SC 736.
3) Asok Kumar vs. Chairman Banking Service Recruitment Board and Others
reported in AIR 1996 SC 976.
4) State of Hariyana vs. M/s. Ajoy Walia reported in AIR 1997 SC 3007.
After hearing the learned Counsel for the parties and after going through the aforesaid decisions it
appears that it is now settled position of law that selection of persons in excess of those notified would
deprive the candidates who were not eligible for appointment on the last date of submission of application
but became eligible subsequently of the opportunity of being considered. The recruitment rules merely
provide that a competitive examination would be conducted by the Public Service Commission for filling in
the vacancy of W.B.C.S. (Judicial). In the present case, as it appears from the nomenclature, the
examination was meant for the year 2000 and, as such, the vacancy which existed or likely to occur as on
31st December, 2000 should be filled up on the basis of such examination. On the basis of the result of an
examination, any vacancy subsequently resulted cannot be filled up as such process of selection will be in
violation of the aforesaid Supreme Court decisions.
The decision of the Supreme Court in the case of All India Judges Association (supra) cited by Mr.
Pal, in my view, does not cast any duty upon the respondent to fill up all subsequent vacancies up to March,
2003 from the result of any examination held earlier. All that has been mandated in that decision is that the
existing vacancies should be filled up at the latest by March, 2003. Therefore, for the purpose of filling up all
subsequent vacancies after the passing of the aforesaid judgment of the Supreme Court a fresh
examination should be held in accordance with rules and the present petitioners by dint of their results in the
examination of the year 2000 cannot claim right to be considered for subsequent vacancy. I thus answer
the aforesaid question against the petitioners.
Point (b)
I have already indicated that the examination in question being an examination for the year 2000,
vacancy that existed on 31st December, 2000 could be filled up from the result of such examination and not
any subsequent vacancy inasmuch as the persons who did not attain qualification to sit for examination on
the last date of submission of application but subsequently gained such qualification would be deprived of
the right to be considered for the subsequent vacancy.
Point (c)
In the rules, it is specifically provided that in order to pass in the examination, a candidate must
obtain at least 50% mark in aggregate. However, the Public Service Commission is given discretion to fix
pass mark. In exercise of such discretion, the Public Service Commission may fix a mark above 50%
having regard to the number of posts, the number of candidates and marks secured by the candidates in
such examination. But Public Service Commission cannot in its discretion, at any rate, fix pass mark below
50% in aggregate. As pointed out by the Supreme Court in the case of Miss Neelima Shangla vs. State of
Haryana and Others reported in (1986) 4 SCC 268, Public Service Commission is required to prepare
complete list of all successful candidates and communicate the same to the Government. It was further
held in the said case that the Public Service Commission cannot withhold names of some of the successful
candidates on the ground of limited number of vacancies. Therefore, in the present case, it was the duty of
Public Service Commission not only to prepare a complete list of all successful candidates and
communicate the same of the Government but also to publish such list. The reason behind such direction is
obvious. In the event some of the selected candidates decide not to join the post, the persons who would
be in the waiting list would get appointment according to their positions and there would also be
transparency in the process of selection. In the present case, it appears that sufficient number of scheduled
tribe candidates being not available, the State Government is taking step for dereservation in accordance
with the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of vacancies in services and
posts) Act, 1976 and consequently, posts reserved for scheduled tribe candidate should for this year be
filled up from general candidates if such dereservation is ultimately made.
I thus find substance in the contention of Mr. Pal that the Public Service Commission acted illegally
in recommending the names of only 57 candidates to the Government for selection. The entire list of
successful candidates, in accordance with the rules and in conformity with the pass mark fixed by Public
Service Commission, should have been forwarded to the Government for appropriate action. The aforesaid
question is thus answered in favour of the petitioners.
Point (d)
It appears from the advertisement itself that although actual number of vacancy was not declared
but it was specifically mentioned that the same would be intimated subsequently. There is no dispute that
ultimately the exact number of vacancy has not been notified. The High Court administration, however,
communicated the number of vacancy as it stood on 15th September, 2000 to the Government of West
Bengal and on the basis of such information, the Public Service Commission was directed to act. I find
substance in the contention of Mr. Pal that the respondent authority had a duty to declare the exact number
of vacancy for which the examination was going to be held. From the affidavits of the parties, it appears that
actual number of vacancies as on 31st December, 2000 was 120 – 42 (already appointed on the basis of
examination of 1999) = 78. Therefore, by virtue of the rules under which the process of recruitment was
conducted, the exact vacancy should be 78. I however, find no substance in the contention of Mr. Pal that
for not declaring such exact number of vacancy in the advertisement, the entire process of selection should
be annulled. The respondents, however, for future examinations, must specify the exact number of vacancy
in the advertisement as is likely to exist on the last day of the year for which the examination is going to be
held.
Point (e)
In view of my discussion above, I hold that there were 78 vacancies required to be filled up by the
examination in question and if the State Government declares dereservation of the posts for non-availability
of the scheduled tribe candidates, in such case, it is the duty of the respondents to select further 21
candidates on the basis of result of examination in question, provided, such number of candidates have
obtained the pass marks fixed by the Rules. While appointing such additional candidates, the respondents
will refix the quota of the entire reserved categories viz. scheduled caste, backward class and scheduled
tribe in accordance with rules as if total number of vacancy was 78 and will fill up the vacancies accordingly
subject to any order of dereservation.
In view of my discussions mentioned above, I dispose of this writ application by directing the Public
Service Commission to publish the result of all successful candidates and to communicate the same to the
Government respondent for filling up 21 additional vacancies in the light of the aforesaid observation. In
future, the respondent should declare the exact number of vacancy at the time of giving advertisement for
the examination.
I make it clear that in the absence of any averment in the writ application that the rules regarding
reservation for scheduled caste, scheduled tribe and other backward category have not been made with
prior consultation with High Court, I have not taken into consideration the submission of Mr. Pal that
reservation for those categories were invalid or illegal and I have also not gone into the question whether
any consultation was really made with the High Court before reservation of those posts for those reserved
categories.
The writ application is thus disposed of.
In the facts and circumstances there will be, however, no order as to costs.
W.P.No.688 (W) of 2003, W.P.No.3903 (W) of 2003, W.P.No.3402 (W) of 2003
Since the points involved in these three writ applications are similar to the one disposed of above,
these are also disposed of with similar directions on the above reasons.
***
Method of Recruitment
SUPREME COURT OF INDIA
AIR 1990 SC 405
P.Mahendra Vs. State of Karnataka
Appointment of Motor Vehicle Inspector – Commencement of process of selection prospective
amendment of Rules meanwhile – Selection process has to be completed in accordance with the law as it
stood at its commencement - Amended rule would not invalidate selection already made.
It is well settled rule of construction that every statute or statutory rule is prospective unless it is
expressly or by necessary implication made to have retrospective effect. Unless there are words in the
statute or in the Rules showing the intention to affect the existing rights the Rule must be held to be
prospective.
AIR 1990 SC 1233
N.T.Bevinkatti Vs. KPSC
A candidate on making application for a post pursuant to an advertisement does not acquire any
vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules
and the terms contained in the advertisement he does acquire a vested right for being considered for
selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived
of that limited right on the amendment of Rules during the pendency of selection unless amended Rules are
retrospective in nature.
AIR 1992 SC 952
Karnataka Public Service Commission Vs. B.M.Vijayashankar
Civil Services Examination – Conduct and Regulation – Instruction not to write role number on
answer book at any place except in the space provided on first page – Commission not subjecting such
answer books for evaluation for breach of such instruction - Action not arbitrary – opportunity of hearing to
candidates need not be given.
(1996) 11 Supreme Court Cases 563
Prakash K vs. State of Karnataka
Service Law – Delay and laches – Appointment of teachers in excess of 50% quota reserved for
backward classes and weaker sections – Select list prepared in November 1993 i.e. subsequent to
announcement of judgment in Indra Sawhney's case – Appointment challenged in June 1995 on the ground
that reservation in excess of 50% quota was unconstitutional – Tribunal declining to interfere with the
appointment on ground of laches as by the time the challenge was made, all the appointments had already
been made and incumbents were working – Supreme Court confirmed the order of the Tribunal holding no
interference was called for by the Supreme Court.
MYSORE/KARNATAKA HIGH COURT
1965 (2) Mysore Law Journal 404
Narayana Singh Vs. State of Mysore
Held – Delegation by the Governor of the power to prescribe the particulars relating to the method of
recruitment including details of test and interview was permissible under Art. 309 of the Constitution and
was valid.
Where the petitioner sat for written examination and also attended the interview, he must be held to
have acquiesced in the actions taken by the Public Service Commission and if he failed to secure selection,
he cannot be permitted to challenge the selection and the notification.
In the absence of allegations of facts furnishing the basis for the contention, a petitioner cannot be
allowed to raise the plea of infringement of equality under Art. 16 of the Constitution.
Gopivallabha Iyengar, J. made the following:
ORDER
Under the Rules called the Mysore General Service (Development Branch) Recruitment Rules,
1959 framed on 14.7.1959 by the Governor of Mysore under the proviso to Art. 309 of the Constitution of
India, the Governor provided for recruitment to the posts of Block Development Officers. The Rules
pertaining to the said posts are marked as Ex.A. These Rules were amended on 16.11.1960 providing for
the recruitment of Deputy Block Development Officers also. The method provided is direct recruitment by
selection on the basis of a test and an interview prescribed by the Public Service Commission. Pursuant to
this provision, the Public Service Commission issued a Notification dated 24th March 1961 (a true copy of
which is marked Ex.B) setting out the Rules for the selection of persons to the posts of Block Development
Officers and Deputy Block Development Officers. (The approximate number of vacancies in the cadre of
Block Development Officers was 17 and the number in the cadre of Deputy Block Development Officers was
50). In the said Notification, the Public Service Commission stated qualifications for admission to the
examinations, the syllabus and the rules relating to the examination. Candidates were required to submit
their applications on or before the 1st May 1961. In response to the said Notification, the petitioner made an
application for admission to the examination. The written test was held on 30.7.1961 and the interview was
held on 15.10.1961. As the result of the test and the interview held by the Public Service Commission, 17
persons were selected for the posts of Block Development Officers and 63 for the posts of Deputy Block
Development Officers. The list of selected candidates was published on 30th Nov. 1961. Respondents 3 to
19 were selected as candidates for the posts of Block Development Officers and Respts. 20 to 82 were
selected for the posts of Deputy Block Development Officers. A copy of the said list is marked as Ex.C.
The petitioner, not being one of the candidates selected by the Public Service Commission, feels aggrieved
and by this application he prays for the issue of, (i) a writ of certiorari or any other appropriate writ or order
quashing the selections made by the Public Service Commission under Ex.C and also (ii) for the issue of a
writ of quo warranto to declare that respondents 3 to 10 have no authority to hold the office of the Block
Development Officers and similarly respondents 20 to 82 have no authority to hold the office of Deputy
Block Development Officers in the Development Department of the first respondent. The State of Mysore is
impleaded as the first respondent and the Public Service Commission as the second respondent.
Several contentions have been raised by Sri G.S.Ullal, the learned Advocate appearing for the
petitioner. His first contention is that the Governor ought to have prescribed all the particulars relating to the
method of recruitment, including the details of the test and interview (referred to in Ex.A). He submits that
by providing in Ex.A that the recruitment shall be by selection on the basis of a test and an interview
prescribed by the Public Service Commission, the Governor has abdicated his powers under Art. 309 of the
Constitution of India. In support of this contention Sri. Ullal places reliance on the decision of this Court in
Chandrasekhara v. State of Mysore (1). The question concerned in the aforesaid decision was the
appointment of Munsiffs, a matter governed by the provisions of Art. 234 of the Constitution. It was held that
Art. 234 of the Constitution, on its true construction makes it a special duty and responsibility of the
Governor to himself make a rule about the qualifying marks and that power cannot be delegated to any
other authority. The said decision was with reference to the language of the said Article. Art. 234 of the
Constitution reads as follows:
"Appointments of persons other than District Judges to the judicial service of a
State shall be made by the Governor of the State in accordance with rules made by him in
that behalf after consultation with the State Public Service Commission and with the High
Court exercising jurisdiction in relation to such State."
It will be noticed that the above article does not provide for the delegation by the Governor of his
constitutional responsibility of making the Rules, to any one else. But such is not the case in Art. 309 of the
Constitution which reads as follows:
"Subject to the provisions of this Constitution, Acts, of the appropriate Legislature
may regulate the 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.
Provided that it shall be competent for the President or such person as he may
direct in the case of services and posts in connection with the affairs of the Union, and for the
Governor of a Stat or such person as he may direct in the case of services and posts in
connection with the affairs of the State to make rules regulating the recruitment, and the
conditions of service of persons appointed, to such services and posts until provision in that
behalf is made by or under an Act of the appropriate Legislature under this article, and any
rules so made shall have effect subject to the provisions of any such Act."
It will be noticed that under the proviso to Art. 309, it is specifically provided that the Governor of a State or
such person as he may direct, may make rules regulating the recruitment and the conditions of service of
persons appointed. Therefore, the aforesaid decision of this Court relied on by the Petitioner's Counsel,
cannot be of any help to him in view of the specific provision under the proviso to Art. 309 permitting the
Governor to delegate his power to make rules to such person as he may direct. When he has been
endowed with such plenary competence to delegate his power in the matter of making the Rules, there can
be no valid objection if the Governor has directed the Public Service Commission to prescribe the test and
interview referred to in Ex.A. Therefore this contention of the petitioner fails.
The second contention is that the scheme prescribed by the Public Service Commission (Ex.B)
does not contain the particulars necessary for a test and is arbitrary. It is pointed out that no difference is
made in the mode of selection of the Block Development Officers and the Deputy Block Development
Officers. It is further pointed out that the Public Service Commission has not prescribed the minimum marks
required to pass the examination though the Note in para 5 of the Notification Ex.B specifically makes a
reference to the candidates passing the written examination and therefore it was obligatory on the part of
the Public Service Commission to prescribe the minimum marks for the written examination. Para 5 and the
Notification referred to by Sri Ullal are as follows:
"The written examination and the viva voce will be conducted by the Mysore Public
Service Commission and shall consist of:
Subject
Maximum Marks
(a) A written paper
100
General Knowledge
Note:- General Knowledge includes knowledge of current events and of such
matters of every day observation and experience in their Scientific aspects which an
educated person shall be able to answer without special study. The paper will also include
questions on Indian History and Geography, the Constitution of India, the Five Year Plans
and the Community Development and General Principles of Public Administration.
(b) A Viva-Voce
100
Note:- Such of the candidates as are declared by the Commission to have passed
the written examination will be admitted to the viva voce.
The object of the viva voce will be to assess the suitability of the candidates for
appointment as Block Development Officers and their caliber including intellectual, social and
moral traits of personality, such as critical powers of assimilation, clear and logical exposition,
judgment, variety and depth of interests and capacity for leadership."
The failure to prescribe the minimum marks, it is submitted, is a defect which renders the entire selection
invalid. In answer to this contention, the Government Pleader does not deny that the Public Service
Commission has not adhered to that portion of the Note aforementioned. But, it is submitted by him that an
adherence to the Note by prescribing minimum marks for passing the written examination and excluding
such candidates as had not passed therein from the viva voce, would have been against the method of
recruitment prescribed by the Governor in Ex.A. It is contended that when Ex.A requires that the selection
should be on the basis of a test and an interview, the performance in the test and the interview must be
taken together to judge the suitability of the candidate and therefore it was incumbent on the part of the
Public Service Commission to allow every candidate to participate in the test as well as the interview; no
candidate could have been excluded from the interview on the ground of poor performance in the written
test. The Government Pleader contends that it is for this reason that the Public Service Commission rightly
ignored that portion of the Note to Rule 5 referred to above. There is much force in this contention. Such
adherence to the Note would have been contrary to the method of recruitment prescribed in Ex.A. The
Public Service Commission has acted correctly in not excluding any candidate from the interview. The
prescription of the minimum marks for the written test for the purpose of excluding candidates from the
interview, would have been contrary to the method of recruitment provided under Ex.A. What has been
done, being in accordance with Ex.A, there is no force in the contention of the petitioner that the failure to
prescribe the minimum marks for the test, renders the selection invalid. Further, the admission of all the
candidates, to the interview, has been caused any prejudice to the petitioner, in view of the fact that none of
the selected candidates has obtained less marks than he petitioner in the written test. It may be salutary to
prescribe minimum marks to be secured in the examination, as it would enable the elimination of candidates
who re wholly unfit and would thereby be conducive to the selection of efficient candidates; but we cannot
agree that unless minimum marks are prescribed, there cannot at all be a proper selection of suitable
candidates.
Another contention of the petitioner's Counsel is that the test and the interview prescribed in Ex.A
are the same as a competitive examination governed by R.3 of the Mys. Public Service Commission
(Functions) Rules, 1957.
But, the argument of the Government Pleader is that the test and interview
conducted by the Public Service Commission under the scheme embodied in Ex.B, is only for the purpose
of selection of suitable candidates for being appointed to the posts concerned and it is submitted that the
Public Service Commission has proceeded, in this case, under Rule 4 of the Mysore Public Service
Commission (Functions) Rules, 1957. (It may be stated that in view of the decision in Govindarajulu v. State
of Mysore (2), the Mysore Public Service Commission (Functions) Rules, 1957, to the extent they deal with
the topic of regulating recruitment to Civil Services under the State, must be regarded as having been made
in the exercise of the power under the proviso to Art. 309 of the Constitution). The method of recruitment in
respect of these posts, as provided in Ex.A, is not competitive examination; but selection on the basis of a
written test and interview. It would be Rule 4 that would be applicable and not Rule 3 which relates to
competitive examinations. Therefore, reading Rule 4 as supplementing what is provided for in Ex.A as to
the method of recruitment, the Public Service Commission has, in accordance with it, considered all
applications received in response to Ex.B, held that test and the interview and as a result of such test and
interview has forwarded the list of candidates whom the Commission has considered most suitable for
appointment, that list being arranged in the order of preference according to heir performance in the test and
interview.
In paragraph 19 of the affidavit filed on behalf of the State, it is mentioned that candidates not
possessing the required qualification have been selected. The minimum qualification for the purpose of
recruitment is set out in Col.3 of Ex.A.
It is only those candidates that possessed the said minimum
qualification that were admitted to the test and interview prescribed by the Public Service Commission and
have been ranked on the basis of the marks obtained by them in the test and interview. In these
circumstances, there is no basis for the allegation that the selection for the posts of Block Development
Officers and Deputy Block Development Officers is arbitrary or otherwise invalid.
In para 22 of the petitioner's affidavit with the amendment made subsequently, it is set out that
Respondents 9, 25, 30, 31, 45, 49, 53, 56, 57, 59, 60, 67, 68, 71, 72 and 74 are not qualified for being
appointed as either Block Development Officers or Deputy Block Development Officers, as they do not
possess the requisite qualifications for appointment to the said posts. No details are set out in support of
the said allegation. This allegation is countered by the State by stating in para 19 of its affidavit that
candidates not possessing the required qualification have not been selected. But, in the affidavit filed by the
petitioner in support of I.A. No. IV on 24.2.1965 seeking permission of the Court to file an affidavit in reply to
the counter filed by respondents 1 and 2, a few additional grounds are stated. The Government Pleader
objects to the petitioner being permitted to file the reply affidavit as the application has been made at a late
stage and the Respondents had no opportunity to counter the fresh allegation made therein. We do not
propose to take into consideration such allegations made in the reply affidavit as have not already been
mentioned in the affidavit filed in support of the writ petition. We, now refer to the allegations made in
respect of respondents 45, 56 and 57 in the affidavit filed by the petitioner in support of the writ petition. The
allegations are of a very vague nature to the effect that they and several other respondents do not possess
the required qualification for appointment to the posts in question. Respondent 45 has filed a counter
affidavit and in para 17 of the said affidavit he denies the allegations made against him by the petitioner. It
is stated that this respondent was appointed as an Extension Officer on 5.1.1958 and has put in a service of
3 years, 3 months and 25 days as an Extension Officer. Similarly in para 7 of the counter affidavit filed by
the 56th respondent it is stated that on 1.5.1961 he had served for a period of 3 years and 10 months as
Extension Officer and he has the requisite qualification. The 57th respondent has also sworn that he has
served as an Extension Officer for 3 years and 3 months by 1.5.1961 and he has the requisite qualification.
In paragraph 9 of the affidavit filed in support of the application I.A.No.IV, it is alleged that
respondent 52 is a non-graduate, not an Extension Officer who has put in 5 years of service as such but has
put in only 3 years of service and therefore her application ought not to have been entertained. We have
seen the application form submitted by her. From the details mentioned therein it appears that she has
served as n Extension Officer for Social Education – Mukhya Sevaka – for 3 years, 9 months and 5 days.
The application submitted by these candidates bear a certificate by the Head of the Department through
whom the applications have been submitted, that the entries made in the application have been verified with
reference to the relevant records kept in his office and that they are found to be correct. The petitioner has
overlooked the Note in Col.3 of Ex.A corresponding to the Block Development Officers posts which is as
follows:
"Note:- In the case of candidates who have worked as Extension Officers the
minimum service qualification shall be three years."
In view of this Note and the details mentioned in the applications, the allegations made as against
Respondents 45, 52, 56 and 57 are baseless. No material is placed before the Court to substantiate the
allegations made against the other Respondents.
With regard to Respondent 79, it is stated on behalf of the State that he belongs to the Scheduled
Castes and he was selected for one of the reserved posts. Therefore his case stands on a footing different
from that of the Petitioner and the petitioner cannot have any grievance against him or his appointment.
The learned Government Pleader brings to our notice several circumstances to support his
contention that the petitioner is not entitled to any relief in this Petition. He submits that the selection made
by the Public Service Commission was notified on 30th of November 1961 and this petition is filed by the
petitioner challenging the said selection on 31.7.1962 and therefore the petition is highly belated.
The learned Government Pleader also submits that the Notification of the Public Service
Commission Ex.B is issued on the 24th March 1961 and is published in the Gazette dated 30th March 1961.
The petitioner sat for written examination held on 30.7.1961 and also attended the interview on 15.10.1961.
Therefore it is contended that the petitioner has acquiesced in the action taken by the second respondent in
pursuance of the Notification Ex.B and took a chance of being selected for the post of Block Development
Officer or Deputy Block Development Officer; having failed to secure selection in accordance with the said
Notification, the petitioner is now attempting to attack the entire selection and he cannot now be permitted to
challenge the said Notification. We find that there is much force in both these contentions.
The Government Pleader further submits that the petitioner has not been prejudiced in any manner
whatever. The petitioner has secured 37½ marks in the written examination and 37 marks in the interview,
the total marks obtained by him being 74½. No person who has secured less than 99 marks has been
included in the list of selected candidates. Therefore, the petitioner had no chance of being selected for the
post concerned. The petitioner's learned Counsel required a scrutiny of the cases of respondents 3, 30, 45
and 55. We have looked into the relevant records to satisfy ourselves, if there is any basis for the
allegations made by the petitioner. We have seen the answer books of all the said candidates and also the
register containing the entries of the marks obtained by all these candidates. We are satisfied that there is
no substance in the allegation made that respondents 3, 30, 45 and 55 were given any special treatment as
alleged by the petitioner in para 13 of his reply affidavit.
In para 21 of the petitioner's affidavit he states that the Public Service Commission has made the
selection in direct violation of equality of opportunity guaranteed under Art. 16 of the Constitution. No facts
are stated furnishing the basis for this contention. The petitioner has not mentioned as to how the failure to
fix the minimum has resulted in violation of equality of opportunity guaranteed under Art. 16. Relying on
observations of the Supreme Court in V.S.R. & Mills v. State of A.P. (3) with reference to Art. 14 of the
Constitution which apply with equal force to Art. 16 also and which are as follows:
"When a citizen wants to challenge the validity of any statute on the ground that
it contravenes Art. 14, specific, clear and unambiguous allegations must be made in that
behalf and it must be shown that the impugned statute is based on discrimination and
that such discrimination is not referable to any classification which is rational and which
has nexus with the object intended to be achieved by the said statute."
The Government Pleader contends that in the absence of specific averments, the petitioner should not be
permitted to raise the aforesaid contention. We agree with this contention of the learned Government
Pleader.
The Government Pleader also advanced an argument that the petitioner is not entitled to any relief
by way of issue of a Writ of Quo-warranto as that relief is not available in law in respect of a post such as
that of the Block Development Officer or that of the Deputy Block Development Officer. He bases his
contention on several grounds viz., (a) that the post is temporary and that in respect of temporary posts Writ
of Quo-warranto is not to be issued; (b) that the Office of the Block Development Officer or that of the
Deputy Block Development Officer not being a statutory post, a Writ of Quo-warranto cannot be issued. It is
unnecessary for us to consider these contentions, in view of the fact that we have come to the conclusion
that the selection made as per Ex.C is valid and the petitioner is not entitled to a Writ of Certiorari quashing
the impugned list of the selected candidates for the posts of Block Development Officers and Deputy Block
Development Officers.
In view of the foregoing conclusions, his petition fails and is dismissed with costs.
***
Recruitment Rules
Writ Petition (C) No.1056(AP)/2001
D.D. 13.6.2002
The Hon'ble Mr. Justice I.A.Ansari
Dr.Abu Taba & Ors. – Petitioners
Vs.
State of Arunachal Pradesh & Ors. – Respondents
Recruitment to the post of Medical Officer (Allopathy) and Junior Dental Surgeons was started by
P.S.C. by issuing advertisement dated 8.2.2001 under Arunachal Pradesh Health Services Rules 1990.
PSC sent the list of selected candidates on 3.12.2001. Before that the Rules were amended and came into
force from 1.8.2001. Petitioners who were unsuccessful in the recruitment challenged the selection on the
grounds, firstly, the Rules under which the selection was made were already replaced by Amended Rules
and secondly, some of the selected candidates who are arrayed as respondents are closely related to the
Chairman and Members of the Commission.
Held – As the recruitment was started under the unamended Rules, the recruitment is governed by
the said Rules. However as some of the selected candidates are related to the Chairman and Members of
the Commission, the High Court has upheld the allegation of bias and quashed the whole selection process.
Cases referred:
1. AIR 1970 SC 150 AK Kraipak and others Vs. Union of India and Others
2. AIR 1986 SC 1043 Om Prakash Shukla –vs- Akhilesh Kumar Shukla
3. AIR 1987 SC 454 Ashok Kumar Yadav & Ors. Vs. State of Haryana and Ors.
4.1990 (i) GLT 412 Nagaland AssemblySecretariat Staff Association –vs- State of
others
5.1995 (3) SCC 486 Madanlal & Others –vs- State of Jammu & Kashmir
6. AIR 2001 SC 152 Praveen Singh –vs- State of Punjab & Others
Nagaland and
JUDGMENT
1.
Challenging not only the legality but also fairness and transparency of the selection process for the
recruitment of Medical Officer (Allopathy) and Junior Dental Surgeons adopted by Arunachal Pradesh Public
Service Commission (hereinafter referred to as "The Commission"), the petitioners have approached this
Court with the present application made under Article 226/227 of the Constitution of India seeking issuance
of appropriate write(s) on the Respondents.
2.
In a nutshell petitioners' case runs thus: By and advertisement published on
08-08-2001, in
Eohe of Arunachal Pradesh an English Daily, in the State of Arunachal Pradesh, the Commission invited
applications for filling up of 20 (twenty) posts of Medical officer (Allopathy) and 4 (four) posts of Dental
Surgeon under Arunachal Pradesh Health and Family Department (here-in-after called " The said
Department"). The advertisement mentioned that selection would be made through viva-voce test/interview.
The petitioners, who, too, had applied for the said posts, were called for the said viva-voce test/interview
conducted by the Commission. The respondents No.6 to 28 were, eventually, declared successful. The Writ
petitioners were amongst unsuccessful candidates. The said selection was made on the basis of Arunachal
Pradesh Health Services Rules, 1990(here-in-after) called "Service Rules of 1990". However, at the time of
making the said selection, the Service Rules of 1990 already stood superseded by a new set of Rules
known as Arunachal Pradesh Health Service Rules 2000 (here-in-after referred to as "Services Rules of
2000"). The Rules of 2000 clearly lay down that Selection of the Medical Officer shall be made by direct
recruitment on the basis of written examination to be conducted by the Commission followed by interview.
Under these Rules as far as recruitment for the post of Junior Dental Surgeon is concerned, the same shall
be made either by written examination, to be conducted by the Commission, which is to be followed by
interview or on the basis of interview only. In the present case, the selection was made on the basis of vivavoce/interview, which gave scope for manipulation to the persons constituting the Commission. Selection
having, thus been conducted contrary to the provisions of Services Rules 2000, entire Selection Process is
illegal and ineffective, because it allowed the Commission to adopt a method of pick and choose of their
near and dear ones. In fact, Dr.Tana Jeshi Tara and Dr. Tana Natung namely, Respondents No.14 and 8
respectively are closely related to Chairman of the Commission and Respondents No.6, 7, 9 to 13 and 15 to
28 are closely related by Member of the Commission and of other political high ups and they have been
found placed in the selected list not because of their merit and experience, but by manipulations of the
procedure of the interview /viva-voce in gross violation of the rules. The whole selection suffers from gross
partiality, discrimination and favoritism. The selections so made, thus, need to be quashed.
3.
Repelling the above allegations, respondent Nos.2 and 3, namely, the Commission, represented by
its Chairman and the Secretary of the Commission have filled their affidavits-in-opposition, their case being,
briefly stated, thus: As per requisition received by the Commission from the Government vide letter
No.MEST-9/194 Dated:02-07-2001, and subsequent letter, dated:01-08-2001 the said department had
forwarded the service Rules of 1990 (Notified vide No.MEST-77/150, dated 12-01-1990) for recruitment to
the posts of Medical officer (Allopathy), Dental Surgeons and Junior specialist. Accordingly, the
Commission, as per the laid down norms, conditions and terms of the said rules, issued advertisement for
filling up the posts. Service Rules of 2000 had not been requisition. The Commission was not aware that the
recruitment rules so, received had already been repealed and, hence, the interview was conducted as per
the Service Rules of 1990. The total marks kept for the interview was 100. In the entire process of
recruitment, the Department had, at not stage, highlighted the existence of the new rules nor forwarded a
copy of the same to the Commission. Name of the candidates had raised the issue and the petitioners are
raising the issue after the results have been declared, because the results are not palatable to them. The
Commission had conducted the interview on the basis of the Service Rules of 1990, which allows selection
on the basis of viva-voce only. The Commission received altogether 94 (ninety four) applications and out of
the same, 12 application were rejected and the rest 82 candidates were called for the interview. The
Commission has selected the candidates as per merit and not be manipulation of the procedure of the
interview as allotted.
4.
As far as State Respondents, No.1, 4 and 5 are concerned, their case, in brief, is that the
Department concerned submitted a representation to the Commission for selection of candidates to fill up
the posts of M.O.(Allopathy)/Dental Surgeon on 02-07-2001 by Government Letter No.MES-97/94/1001,
dated 02-07-2001 as per existing service rule of APHS-1990. Subsequently, another requisition was
submitted to the Commission vide Letter No.MEST-97/94/1067, date Itanagar 1st August 2001. After
submission of requisition on the Commission on 1st August, 2001, the relevant Services Rules were
amended and the said amended Service Rules came into force with effect from 3rd August, 2001, from the
date of its publication in the official Gazette, but the syllabus for the written examination was yet to be
finalised. The Government of Arunachal Pradesh received the list of selected candidates, on 03-12-2001,
from the Commission vide letter No.PSC/R/27/2000, dated:28-11-2001. Because of pendency of this Writ
Petition, the Government could not issue appointment orders to the selected candidates, whose services
are urgent needed, because there is shortage of doctors in the Medical Department for deputing them to
serve at primary Medical Health Centers in various districts specially in the remote areas. The Commission
has rightly acted upon the requisition sent by the Department for recruitment of 41 numbers of Group 'A'
post under the Department as per Service Rules of 1990. Since the new Service Rules came into effect
after requisition was already submitted to the Commission by the Department, the Selection are held. The
unsuccessful candidates, who had already participated, cannot claim any relief in this Writ Petition, because
they have no discus standing to challenge the recruitment.
5.
By their affidavit, respondents No.6 to 28 who are the successful candidates, have also contested
this case contending, inter-alia, that the writ petitioners having participated in the process and having been
rejected due to their poor performance cannot, now, challenge the legality of the selection process or its
fairness. As the selection process had started before coming into force of Service Rules of 2000, the
selection made on the basis of the Service Rules of 1990 is a selection.
6.
The Respondents No.12, 13, 25 and 26, who had applied for the post of Junior Dental Surgeon,
have contested this case on the ground, inter-alia, that even under the Service Rules of 2000, recruitment
for the post of Junior Dental Surgeon can be made either on the basis of written examination to be followed
by interview or on the basis of interview alone and, hence written examination for recruitment of Junior
Dental Surgeon was not mandatory. The selection does not suffer from any illegality or infinity. The writ
Petitioners, being unsuccessful candidates, cannot challenge the legality or fairness of the selection process
or of the selection made.
7.
I have perused the relevant records. I have heard Mr.T.Son, learned counsel for the petitioners, Mr.
R.H.Naban learned Additional Senior Government Advocate, who was appeared on behalf of respondents
No.1, 4, & 5 Mr. M. Pertin learned standing counsel for the Commission, who has appeared on behalf of
Respondent No.2 & 3 and Mr.T.Michi, learned counsel, who has appeared on behalf of the remaining
respondents.
8.
Shorn off lengthy and immaterial details and legal rhetories, what emerges from the allegations and
counter allegations levelled by the parties against each other is that the petitioners have challenged the
entire selections process on two ground, namely, (a) section was not held in accordance with the Service
Rules of 2000, which were in force at the relevant time of selection and (b) successful candidates, namely,
respondents No.6 to 28 were close relatives of the Chairman/Members of the Commission and other high
up and, hence, the selection process suffers from not only illegality but also fairness and bias inasmuch as
the selection made on the basis of interview alone was not only in contravention of the relevant rules of
2000, but that it also provided the Commission with vast scope for manipulation and nepotism.
9.
In support of his contention that the recruitment ought of have been made under the Service Rules
of 2000 and the same having not been adhered to by the Commission entire process of selection is wholly
illegal, Mr, T.Son, had placed reliance on Nagaland Assembly Secretariat Staff Association –Vs-State of
Nagaland and others 1990 (i) GLT 412.
10.
It is also contended by Mr. T. Son that selection on the basis of the interview alone leaves vast
scope for manipulation of results and selection made on the basis of interview alone is highly improper and
should not be allowed. In support of this submission, Mr. T.Son has placed reliance on Praveen Singh-VsState of Punjab & Others, AIR 2001 SC 152
11.
Controverting the above submissions made on behalf of the petitioners, Mr. R.H. Nabam, learned
Addl. Senior Govt. Advocate, has pointed out that from the undisputed materials on record, as reflected from
the affidavit of the Commission and also of the Government, it clearly transpires that the requisition was sent
by concerned department to the Commission for making selection for the purpose of filling up of 20 (twenty)
posts of Medical Officer (Allopathy)/Dental Surgeons, on 02-07-2001, when the Service Rules of 1990 were
still in force. Even when the requisition was repeated by another letter of the department concerned, the
date issuance of the letter was 01-08-2001, whereas now Service Rules of 2000 came into force on its
publication in the Gazettee with effect from 03-08-2001. Thus, the process of selection already stood
initiated before the new Service Rules of 2000 came into force. So contends Mr. Nabam. It is also pointed
out by Mr. Nabam that since there are shortage of doctors in the Medical Department to serve at Public
Health Center in remote areas and preparation of syllabus for written examination (as envisaged in the new
Rules of 2000) was yet to be finalised, the recruitment has to be held under the service Rules of 1990 and
the recruitments so made are valid recruitments.
12.
It is also submitted by Mr. Nabam that the petitioners have no locus-standi to challenge the legality
of the selection process on the ground that the same was not in conformity with the Service Rules or 2000,
because they have become unsuccessful, they cannot challenge the validity of the recruitment process on
the ground of its having been held under the service Rules, of 1990 which had ceased to be in force on the
date of selection. In support of this contention, Mr, Nabam has relied on Mandalal & Others-Vs-State of
Jammu & Kashmir 1995 (3) SCC 486
13.
Let me, first, deal with the question as to whether the petitioners have locus-standi to challenge the
selection process on the ground that it was conducted under the Service Rules of 1990, which had ceased
to be in existence on the dated of making of the selection?
14.
Without entering into the merit of the submission, made on behalf of the State, tat since the
recruitment process had started before the Service Rules of 2000 came into force, the selection held under
the old Rules of 1990 is not illegal, suffice it to mention here that consistent view of law is that the candidate,
who has fully participated in a selection process and failed to qualify the same, cannot turn around and
challenge the legality of the selection process on the ground that it was not held as per relevant rules.
Reference made by Mr. R.H.Nabam, in this regard, to the case of Madanlal-Vs-State of Jammu & Kashmir
(Supra) is not misplaced inasmuch as the Apex Court has, on the above crucial subject, succinctly laid down
the position of law as follows:
" Before dealing with this contention, we must keep in view the silent 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 too a chance to get themselves selected at
the said oral interview. Only because they did not find themselves to have emerge
successful as 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 take a
calculated chance and appears at the interview, then, only because the result of the
interview is not palpable him, he can not turn round and subsequently centend that the
process of interview was unfair of the selection Committee was not properly constituted.
In the case of Om Prakash Shukla Vs 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 file a petition challenging the said examination, the High Court should not
have granted any relief to such a petitioner."
(Emphasis is added by me)
14.A.
I am also guided to adopt the above view from the law laid down in Om Prakash Shukla-Vs-
Akshilesh Kumar Shukla (AIR-1986 1043) wherein it has been laid down as follows:
" Moreover, this is a case where the petitioner in the writ petition should not have been
granted any relief. He had appeared for the examination without protest. He filed the
petition only after he had perhaps realised that he would not succeed in the examination.
The High Court itself has observed that the setting aside of the results of examinations
held in the other districts would cause hardship to the candidates who had appeared
there. The same yardstick should have been applied to the candidates in the district of
Kanpur aslo. They were not responsible for the conduct of the examination."
(Emphasis is added by me)
15.
Because of what have been discussed above, it becomes clear that petitioners are not, now,
entitled to challenge the validity of the selection of the process on the ground that the same was not held as
per law in force on the date of selection. Viewed from this angle, reference made by Mr.T.Sen to the case of
Nagaland Secretariat Staff Association (Supra) and Praveen Singh (Supra) are wholly misplaced.
16.
Now, coming to the second ground on which the petitioners have impugned the selection process,
merely, that the selection process was unfair and manipulated for extraneous consideration, it is worth
noticing that out of altogether 94 applications received by the Commission, 12 applications were rejected
and the rest 82 candidates were called for the interview.
17.
I have very clearly scrutinised all the affidavits filed by contesting respondents, but I do not fid that
any of the respondents have specifically denied or disputed the allegations made by the petitioners as
regards the relationship between the Private respondents and Chairman/Members of the Commission. To a
pointed query made, in this regard, by this Court, Mr. Pertin as well as Nishi has, though reluctantly,
conceded that there is no specific dental on record responsible for, and interverently associated with, the
entire selection process.
18.
Situated thus, one has no escape from the conclusion that respondents Nos. 8 and 14 are closely
related to the Chairman of the Commission and Respondents Nos.6,9,10,11,16,17,18,19,20,22,27 and 28
are closely related to the Members of the Commission . Since the averments in the affidavit are not
controverted, this Court has to proceed on the basis that averments stand admitted. (Smti. Naseen –VsState of Up & others may be referred to).
19.
In view of the fact that two of the selected candidates are, admittedly, closely related to the
Chairman of the Commission and as many as 12 number of candidates are closely related to the members
of the Commission, the likelihood of bias adversely affecting the process of selections cannot be boldly and
confidently ruled out. When a selection made is brought for scrutiny before a Court of law on the ground of
bias and unfairness, the selection has to withstand the test of fairness and impartiality. If reasonable
possibility of bias or nepotism exists, such a selection procedure cannot, by any means, be allowed to stand
good on record. When a member of a Selection Committee has an interest of his own, then, even if such a
member welfare he may be interested in yet the fact remains that while judge in merit of the others, whose
interest obviously clash with the interest of the candidate concerned, possibility cannot be ruled out of bias
affecting the judgment/assessment of the selector, even while assessing the merit of the others. As
indicated in AK Karipak and others Vs. Union of India and other (AIR 1970 SC 150), the real question is not
whether such a person was bias, because it is difficult to prove the state of mind of a person. When the
Court has to judge as to whether there is reasonable ground for believing that he was likely to have been
bias, this bias can be inferred by taking into consideration human probabilities and ordinary course of
human conduct.
20
Since the present selection was made by State Public Service Commission, the case is squarely
covered by the landmark judgment of the Apex Court in Ashok Kumar Yadav & Ors. Vs. State of Haryana
and Ors. (AIR 1987 SC 454). It has been clearly laid down in this case that when a close relative of a
member of Public Service Commission appears for interview, such member must be dropped from
participation in the interview, of the candidate and must not take part in any discussion with regard to the
merits of the candidate and even marks/credits given to that candidate should not be disclosed to him.
21.
In the case at hand, from the available materials on record, I do not find even semblance of
assertion on the part of the contesting respondents that when the respondent Nos. 8 & 14 were interviewed,
Chairman of the Commission, who was admittedly a relative of the two candidates, had withdrawn from
participation in the interview and/or that the marks obtained by respondent Nos. 8 & 14 had not been not
disclosed to the Chairman. Similarly, these is not even an iota of assertions any where in the record that the
numbers of the commission had withdrawn, whenever their relative had partnerships at in the interview
and/or that the marks obtained by such candidates were kept withheld from the member, whose relative was
interviewed.
22.
Situated thus, this Court is constrained to hold that reasonable personality of likelihood of bias
creeping in and adversely affecting the entire selection process, hold for recruitment to the post of Medical
Officer (Allopathy) and in Dental Surgeon, cannot be confidently ruled out. Selections made on the basis of
such selection process cannot, therefore, allowed to stand good on record.
23.
On behalf of the respondents Nos. 12,13,25 and 26 who are applicants for the post of Junior
Dental Surgeon, it has been submitted that since even the Service Rules of 2000 provide making of
recruitment on the basis of the written examination to be followed by interview or on the basis of interview
alone, the Commission, in effect, acted, within the ambit of Service Rules of 2000, by choosing to make
selection on the basis of interview alone. In this regard, suffice it mention that I have already held that since
the petitioners have participated in the selection process, they cannot, now, turn around and challenge
legality of the selection process, as held above, is marred by strong possibility bias, the selection made in
the basis of such a process cannot be allowed to stand good on record.
24.
I may pause here to point out that in Pradhan Singh (Supra), the Apex Court had disapproved the
choice of making recruitments on the basis of interview alone, because the scope for manipulation giving
the tactics of manipulations façade of interview is not impossible. I am guided to adopt this view from the
law laid down in Praveen Singh (Supra) in the following words:“while it is true that the administrative or quasi Judicial authority clothed with the
power of selection and appointment ought to be left unfettered in adaptation of
procedural aspect but that does not however mean and imply that the same would
be made available to an employer at the cost of fair play, good conscience and
equity. This Court in the case of J.P. Kulshreshtha Vs. Chanceller, Allahabad
University, AIR 1980 SC 2141:(1980 Lab IC 692:1980 All LJ 571) did recognize
the undetectable manipulation of results being achieved by remote control tactics
and masked as viva voce test resulting (in) the sabotaging of the purity of
proceedings. This Court held “interviews as such are not had but polluting it to
attain all estimate ends bad”.
What does Kulshreshtha’s case (Supra) depict? Does say that interview should be
only method of assessment of merits of the candidates? The answer obviously
cannot the affirmative. The vice of manipulation, we are afraid cannot be ruled
out. Though interview undoubtedly a sign cant factor in the matter of
appointments. It plays a strategic role but it also allows creeping in of a lack
rendering the appointments illegitimate. Obviously, it is an important factor but out
not to be the sole guiding factor since reliance thereon only may lead to a "sabetal
purity of the proceedings".
(Emphasis is added by me)
25.
It needs to be borne in mind that when the Service Rules 2000 provides the Commission with
option of making recruitment of Dental Surgeon on the basis of either written examination, to followed by
interview, or on the basis of interview alone, the Commission has to satisfy the Court, if the fairness of the
selection is challenged, as to why it chose to make recruitment on the basis interview only and did not resort
to holding of written examination be followed by viva voce test/interview. The affidavit filed by the
Commission is, as already indicated above, completely silent in this regard.
26.
Coupled with the above it is immense importance to note to though it is true that the requisition for
making recruitment was a sent by the said department to the Commission initially on 02.07.2001 and then,
repeated on 01.08.2001, yet the fact remains that the Service Rules of 2000 came into force barely two
days thereafter i.e 03.08.2001. It is difficult to believe that the Department concerned on publication of
Gazette notification on 03.08.2001 did not come know that the new recruitment rules had already come into
force and selection, if any, should be made on the basis of new recruitment rules. In fact, the State
respondents do not deny their knowledge of the changes that had taken place. This becomes crystal clear
from the fact that in the affidavit, the state respondents have contended to the effect that since syllabus for
written examination was yet to be finalised and posting of doctors at primary Health Centers was necessary
the selection was made on the basis of the Rules of 1990. However, materials has been placed before this
court to show that any serious study was done either by the Department concerned or by the Commission to
ascertain if in view of the change in the relevant recruitment written examination should be held before
calling candidates (mean post of Dental Surgeons) for viva voce or interview. Far from this, the Commission
had expressed its complete ignorance by a it did not know that the recruitment Rules stood change syllabus
for any written examination, to be conducted by a Public Service Commission, is to be prepared, it has to be
really prepared by the Commission, because it is the Commission, which knows what it need to test in a
candidates to determine his/her suitability for the post for the recruitment has to take place.
27.
In the face of the fact that the Commission nowhere claims that it made by any effort to finalise the
syllabus for written examination, one can not readily believe the assertions of the State respondents that as
finalisation of syllabus would have taken time, recruitment was held under the Service Rules of 1990. I am
not questioning here the legality o making of recruitment on the basis of Service Rules of 1990 was aimed at
making recruitment has till of some persons already chosen for the post advertised. Viewed from this angle,
not holding of written examination and making of selection based entirely on interview, fairness of which is
vigorously shaken, one has no option, but to held that the selection made smashes of bias and favoritisms.
28.
In short, attempting to make selection on the basis of interview alone coupled with the fact that the
entire selection process is found to smack of bias, the recruitment made, with the help of such process,
cannot but be interfered with Court in exercise of power under Art. 227 of the constitution of India.
29.
In the result, an for the reasons discussed above, this writ petition secedes. The entire selection
process a well as selection of he private respondents, namely, respondent Nos. 6 to 28 and the
appointment, if any, already made, in consequence of such selection, shall stand set aside and quashed as
a whole.
30.
No order as to costs.
***
W.P.(C) No.1042/2002 & W.P.No(C)No.1933/2002
D.D. 13.6.2002
The Hon'ble Mr. Justice J.N.Sarma
Dr.Muhi Kanta Hazarika & Anr. - Petitioners
Vs.
State of Assam & Ors. - Respondents
Selection to the post of Director of Health Services, Assam
Recruitment advertisement prescribed qualification and experience not as per Assam Health
Services Rules, 1995 – Hence selection made by P.S.C. as per the advertisement has been quashed with a
direction to Government to lay down the qualifications and experience as required under the Rules and to
hold selection afresh.
Cases referred:
1. (1990) 3 SCC 655 District Collector & Chairman, Vizianagaram Social Welfare Residential School
Society Vs. M.Tripura Sundari Devi
2. (1998) 3 SCC 381 Upen Chandra Gogoi Vs. State of Assam & Ors.
JUDGMENT
Both these applications have been filed challenging the legality and validity of the select list dated
29-12-2001 prepared by the Assam Public Service Commission (hereinafter referred to APSC) and
communicated by its Secretary by which Dr. Bipul Ch. Goswami and Dr. Paresh Ch. Battachaarjee were
selected to fill up the post of Director of Health Service, Assam in pursuance to the advertisement dated 1010-2001. It may be stated that Dr. Bipul Ch Goswami was placed at SL.NO.1 in the select list and Dr.
Paresh Ch. Battaacharjee was placed at SL.NO.2 in the Select list. The authority, however, after receiving
the list came to a decision that Dr. Bipul Ch. Goswami is not qualified to hold the post as he did not have the
requisite experience as per the advertisement and as such, the post is now being held by. Dr. Kalyan Das
as in-charge Director pursuant to an interim order of this Court.
2.
The brief facts are as fallows:-
On 10-10-2001 an advertisement was issued to fill up the post of Director of Health Services, Assam
and the qualification mentioned were as fallows:“Qualification: Atleast M.B.B.S. Degree or an equivalent Degree of a recognized University.
Experience (a) Atleast 4 (four) years practical and administrative experience in the post of other
Chief Medical and Health Officer or Additional Chief Medical and Health Officer or combining both, the
experience together or equivalent or in a higher post.
(b) Experience in Medical Public Health and Family Welfare works
(a)
Preference will be given to the candidates having experience in administering large Health
Service Programmes including Family Welfare programme and Hospital administration.
(b)
A post graduate degree of diploma in Public Health will be treated as a preferential
qualification.
(c)
3.
Candidates must be from Health (A) Deptt. Only.
There is a set of Rules framed under Article 309 of the Constitution of India and that Rules is
known as Assam Health Services Rules, 1995 which came into effect from the date of its publication in the
official Gazette and it was published on 26th September, 1996. Rule 6 of that Rules provides for direct
recruitment. Rule 6 (1) is as fallows:6(1) Direct recruitment to the cadre of Director of Health Service and also in the cadre of M & HOI
of the service shall be made by the Governor in accordance with the procedure. The other part of the Rules
namely 6 (1) (a), (b), (c), (d) and (e) are with regard how to fill up the post by the Public Service
Commission. Rule 7 provides for qualification for direct recruitment. Rule 8 (i) vides for academic
qualification. Rule 8 (ii) provides as follows:“ 8 (ii) Academic qualification of a candidate for direct recruitment for the post of the Director of
Health Service shall be as prescribed by the Governor from time to time. The qualification and experience
prescribed as on the date of commencement of those rules are given in Schedule-IV.’’
A bare look at Schedule-IV will show that it prescribes qualification only for Medical & Health Officer and
nothing has been prescribed with regard to Director. There is no notification also in the name of the
Governor prescribing the academic qualification and experience. What the authority did in this was that
after the selection was made by the APSC on 4-2-2002 a note was put up by the commissioner and
secretary, Health to the Chief Secretary, Minister of Health and Chief Minister seeing their approval. That
note produced by Mr. B.P Bora, learned Sr. Govt. Advocate was approved by the Chief Minister on 15-42002. That is quoted below:“Chief Secretary
Minister, Health
Chief Minister.
The matter had been put up to seek approval of the Honorable CM for appointment
of the Director of Health Service. In this connection, the Hon,ble CM has stated that
he would like know the rule position. As per rule 5 of the Assam Health Service the
recruitment to the post of DHS is to be done by direct recruitment through
commission (APSC). The procedure for direct recruitment has also been given in
rule 6 of the Assam Health Service Rules.
The academic qualification and experience are normally prescribed by the
Government from time to time. Accordingly, this time the qualification and
experience was prescribed by the State Government which was similar to the
prescription given in the previous 2 occasions. The prescribed qualification and
experience is as given below:Qualification:- At least MBBS degree or equivalent degree of a recognized
university.
Experience:
(a)
At least 4 years administrative experience as Chief
Medical & Health Officer or Addl. Chief Medical & Health Officer or combining
both experience or experience in an equivalent or in a higher post.
(b) Experience in Medical & Health and Public Family Welfare Works.
(c) Preference will be given to the candidates having experience in administrating
Health Service programmes including family welfare programmes and Hospital
administration.
(d) A post Graduate Degree or Diploma in Public Health will be treated as a
preferential qualification.
(e) The candidate must be from Health (A) only.
The Government has followed procedure as prescribed in the rules and the
APSC has given the recommendations. As already indicated in the note at page
119-121, the first person recommended by APSC does not fulfill the minimum
criteria required for consideration. The officer does not have adequate experience
at the appropriate level and hence his candidature cannot be accepted. The
Government as per rule position has to make the appointment by direct recruitment
through APSC. Since the APSC has given two names in order of merit and the
Government is unable to accept the candidature of the number one nominee for
very valid reasons there should be no bar in accepting the 2nd nomination.
It is further suggested that the whole matter regarding issue of experience
certificate by Dr. P.K. Deka, PD IPP IX to Dr. B.C. Goswami fraudulently should be
inquired into by the vigilance through Anti-corruption Branch. C.S. may kindly obtain
CM’s approval for taking up a vigilance case.
Sd/- Commissioner & Secretary. Health
Hon’ble Chief Minister,
This is regarding appointment of Director, Health Service, Assam as per
APSC’s select list. Hon’ble C.M. vide his order at page 121/N wanted to know the
Rules position Commissioner & Secretary, Health was furnished the Rules position
at office note from prepage. C.M. may kindly peruse the same and pass necessary
order to appoint Dr. Paresh Battacharjee, the 2nd nominee for the post of Director
Health Services.
Regarding “X” above, explanation may be called from Dr. P.K Deka, P.D.,
Assam Area Project first for taking appropriate action.
Submitted for approval.
Sd/- Minister, Health
Approved
Sd/- C.M.
The note which has been quoted above will have bearing on the argument advanced by the learned
Advocate for the petitioners. From this it will be crystal clear that at the time of issuing advertisement as
quoted above there was no qualification prescribed by the Government as required under the Rules with
regard to academic qualification and experience. It appears that the authority while issuing advertisement
adopted its own approach as yardstick and laid down the qualification and experience as was done in the
past. It further appears that the APSC also adopted a mechanical approach instead of looking to the
qualification as required to be prescribed it issued advertisement with the qualification as suggested by
Government. The commission adopted an approach which cannot be accepted. The experience prescribed
in the advertisement was of Chief Medical and Health Officer or Additional Chief Medical and Health Officer
or Bearing both experience together or an equivalent or higher post Mr. Bipul Chandra Goswami is MBBS
and subsequently he also passed MD in Gynecology. Dr. Goswami joined in the service as Assistant
Surgeon on 18-10-73. He became Senior Medical & Health Officer on 9-1-73. He became Superintendent
of Civil Hospital (rank of S.D.M. & H.O.) on 1-8-94. He was not promoted to the rank of Chief Medical and
Health Officer or Additional Chief Medical and Health Officer. Thereafter, he went on deputation to Assam
Area Project under Word bank and there he was posted as Junior Consultant (HMD). That was a
deputation vacancy and not a cadre post as prescribed in the Rules. The post of Junior Consultant is not a
cadre post under Rule 3(iii) of the Rules of 1995. The cadre posts are provided in the Rules. The learned
Advocate for Mr. Goswami produces before me a set of Regulation framed by the Society for
implementation of Assam Area Project and in that regulation framed by the society it is provided that the
post of Junior consultant (HMD) shall be equivalent to Joint Director of Health Service of the State of
Assam. The qualification which is required to fill up the post of Junior Consultant is as follows:“ Any officer from Assam Health Service not below the rank of Joint
Director/ Associate Professor/Asstt. Professor with at least 8 years experience in
HMD Back ground in organizing training/ seminar atleast for 04 years or any officer
holding an equivalent post under the State Government or a retired Government
servant who has retired from services from a similar post.’’
So, even he was not qualified to be a Junior Consultant. Be that as it may, he was sent on deputation. Now
the question is that as he holds the post of Junior Consultant whether that can be deemed to be equivalent
to Joint Director of Health Services. An equivalence made/ created by another body certainly shall not bind
the Government to make it equivalent to a post provided in its own cadre. In the cadre the post of Joint
Director is above the post of Chief Medical and Health Officer and Additional Medical and Health Officer.
But that equivalence has been created by a society and it shall not give a person a right to claim that he is
holding cadre posts. Before the APSC a certificate was produced by the Govt. Advocate issued by the
Project Director, Assam Area Project which reads as follows:“ TO WHOM IT MAY CONCERN”
This is to certify that Dr. Bipul Chandra Goswami of Assam Health Service
(A) is wording as Assam Area Project, Indian Population Project –IX since 5th
February, 1997. The Assam Area Project IPP-IX. Lunching from 1994 is the
World Bank funded project under department of Health and Family Welfare, Govt.
of Assam and providing multi purpose health care and Family Welfare Services in
the State of Assam including MCH Services. Dr. Goswami holding the post of
Junior Consultant (HMD) which is equivalent to Jr. Director of Health Services,
Assam. During tenure of his 4 years 9 months services, he look after training.
IEC activities and logistic management field works. He is sincere, hard working
and work satisfactory upto entire satisfaction of higher authorities.
He bears good moral character.
I wish him success in life.
Sd/- Dr. P.K. Deka,
Project Director,
Assam Area Project IPP-IX.’’
It was on the basis of holding of this post and the certificate issued, this officer PC Goswami claims
to have the experience and accordingly he applied and his application was considered. It may be stated
herein that during the pendency of this writ application, this certificate has been withdrawn by the Project
Director, Assam Area Project stating that it was issued by mistake. So, the question is that whether Dr.
Goswami was qualified to apply and considered for the post in terms of the advertisement. As will be sent
from the facts stated above, he did not satisfy the requirements of experience etc. as laid down in the
advertisement and he was not eligible to the considered for the post.
4.
I have heard Mr. H. N. Sarma and Mr. A.M. Maxumdar, learned Advocates for the writ petitioners. Sri
C.K. Sarma Baruah, learned Advocates for the Respondent No. 3, Dr. Bipul Ch. Goswami. Mr. T.C. Chutia,
learned Advocates for
APSC, Mr. B.P.Bora, learned Sr. Govt. advocate for official respondents and
Mr. B.K.Sharma, learned Advocates for the Respondent No.4 Dr. P.C. Battacharyya.
5.
The learned Counsel for the petitioners places reliance of two decisions to argue that Dr. Goswami
did not have the experience and his case was illegally considered by the APSC. It is submitted by Mr. H. N.
Sarma, learned Advocate for Dr. Mani Ram Hazarika that if it would be known to him that the person, having
lesser experience than that mentioned in the advertisement could have been considered he also would have
been in a position to apply for the post. On the other hand, Mr. B.K.Sharma points out that Dr. Ananda
Narzary appeared in the interview but he failed to qualify and now he cannot turn back and question the
selection. It is the further contention of Mr. B.K.Sharma that his client is the only candidate who fulfills all
the qualifications laid down in the advertisement and as such, he should be allowed to enjoy the benefit of
selection as decided by the Government. It is further submitted by Mr. B.K.Sharma that when Rules are
silent with regard to qualification and experience, Government in its own wisdom by executive instruction or
otherwise can prescribe necessary qualification and experience. But the records produced by the Govt.
advocate do not show that any such decision was taken by the Government before the requisition was sent
to the APSC by the Govt. lying down qualification etc. No doubt, in the rule earlier to 1995 qualifications
were laid down, but in the present rule, it is to be prescribed in the schedule and as indicated above, in the
schedule the qualifications have not been laid down.
There was also no decision with regard to
qualifications etc. before issuing the advertisement.
6.
Mr. H. N. Sarma, learned Advocate for the writ petitioner relies on two decisions. (i) (1990) 3 SCC
655 (Direct Collector & Chairman, Vizianagaram Social Welfare Residential School Society Vs. M.Tripura
Sundari Devi) where in paragraph 6 the law has been laid down as follows:“ 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 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 persons with
inferior qualifications are 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 the Tribunal lost sight of this fact.’’
That is what has happened in the instant case. Dr. Goswami was selected disregarding the qualifications
laid down in the advertisement and the Supreme Court further issued a caveat stating that no court should
be a party to the perpetuation of the fraudulent practice. The next case relied on by Mr. Sarma is (1998) 3
SCC 381 (Upen Chandra Gogoi Vs. State of Assam and Others). That was a case from Assam and there
the situation was more interesting. The person concerned drafted the Rules to suit himself. There was a
selection and that was challenged and a Division Bench of this court quashed the selection and his
appointment. In that particular case the Supreme Court observed that even if the Rules which provides the
qualifications at a later point of time and validate the appointment of person, yet that rule cannot be applied
to a selection which was held at an earlier point of time and the Supreme Court pointed out as follows:“Be that as it may, the subsequent Rule cannot affect the qualifications
prescribed for the post of OSD under the advertisement of 18-6-85. The
appellant was appointed pursuant to this advertisement. He had to meet
the qualifications prescribed. The appellant has drawn our attention to
Rule 38 of the Assam Legislative Assembly Secretariat Rules, 1986.
Under which all orders made or actions taken before these rules came
into force shall be deemed to have been made or taken as if these were
made or taken under these rule. Rule 38 can apply only to orders lawfully
made or action lawfully taken before these Rules came into force. It
cannot validate an action which was not lawful at inception.”
The question which now shall arise is that whether the entire selection should be scrapped and the matter
should be sent back to the Government to laid down the qualifications and experience as required under the
Rules or we should uphold the selection of Dr. Battacharjee. I have applied my mind to the factual matrix as
well as to the law. I find it will be just and proper to scrap the entire selection and to send back the matter to
the Government to lay down the qualifications and experience as required under the rules as indicated
above and thereafter to hold the selection. In the meantime, the Government may allow the continuance of
the person holding the post by virtue of the interim order of this court. If Government thinks otherwise, the
Government may deem fit and proper to give charge to another person who is senior and better qualified to
the person now holding the post. A person junior to the person holding the post shall not be brought in
during the interval as in charge of the post. It is needles to say that Dr. Ananda Narzary who earlier failed to
qualify in the interview shall also be eligible to apply in terms of the fresh advertisement when issued. The
contention that the case of Dr. Ananda Narzary was not considered is not correct inasmuch as the records
produced by the learned Sr. Govt. advocate show that the petitioner appeared in the interview conducted by
the APSC, but he did not qualify in the interview nor he had the experience as pointed by the Commission.
It may be stated herein that after Dr. Goswami now on expiry of deputation has been reverted back to his
parent department. Dr. Goswami now has been appointed as SDMO and PHC in the office of the Joint
Director of Dhubri which is a post below the rank of Chief Medical and Health Officer or Additional Medical
and Health Officer. It is needless to say that whole process of selection shall be completed by the
Government within a period of three months.
Both the Writ applications are disposed of accordingly.
***
SUPREME COURT OF INDIA
Civil Appeal No.1397 of 2001
D.D. 21.2.2001
The Hon'ble Mr. Justice S.Rajendra Babu
The Hon'ble Mr. Justice S.N.Phukan
Buddhi Nath Chaurdhary & Ors. … Appellants
-vsAbahi Kumar & Ors.
… Respondents
Selection of Motor Vehicles Inspectors made by Bihar Public Service Commission on the basis of
qualification and experience as per the Recruitment Rules in 1989 was challenged by unsuccessful
candidates on the ground that selected candidate did not possess the requisite qualification and experience.
Bihar High Court directed the Transport Commissioner to verify whether the selected candidates
(appellants) possess the required qualification and experience. In this Appeal the Supreme Court has
deprecated the said direction of the High Court as under:
"We fail to understand as to how the matter of selection and
appointment to a post could have been entrusted to the Transport
Commissioner when the Commission had been specifically entrusted
with such a job and such Commission, which is an autonomous
authority having a constitutional status, has selected the candidates
whose appointments were in challenge. If the selection of these
candidates was improper the same should have been set aside with
appropriate directions to redo the process of selection or at best, the
High Court could have directed the Government, which is the appointing
authority, to take appropriate steps in the matter."
The Supreme Court has found that all the applicants possess the requisite qualifications or
equivalent qualification. For the lack of experience the Supreme Court considering the fact that appellants
have worked more than 10 years after their appointment has held that the lack of experience is now made
up. On equitable consideration following its earlier decisions in Ram Sarup vs. State of Haryana & Ors.
1979 (1) SCC 168 and other cases has held that the appointment of the applicants need not be disturbed.
Cases referred:
1) Ram Sarup vs. State of Haryana & Ors. 1979 (1) SCC 168
2) District Collector & Chairman, Vizianagaram Social Welfare Residential School Society,
Viziangaram & Anr. Vs. M.Tripura Sundari Devi 1990 (3) SCC 655
3) H.C. Puttaswamy & Ors. Vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore & Ors.
1991 Supp. (2) SCC 421.
JUDGEMENT
Leave granted.
In these cases the appellants were selected by the Bihar Public Service Commission [hereinafter
referred to as 'Commission'] for appointment as Motor Vehicle Inspectors pursuant to an advertisement
issued by the Commission on 12.05.1989. The advertisement indicated that candidates possessing the
following qualification and experience are eligible for appointment to the said post:
"Qualification":- (Required minimum technical qualification- educational
qualification).
(Ka) Matriculation
(Kha) Diploma in Automobile Engineering or Mechanical Engineering after
completing three years course would be necessary from a recognized
Institution/Board/University.
(G) The diploma holder or post diploma holder in Automobile Engineering would
be preferred.
Note:- Such candidates, who have mechanic level qualification related to Motor
trade would not be competent.
Experience:(Ka) For the candidates, who after completing three years course of Automobile
Engineering have obtained diploma, must possess three years practical
experience in an Automobile Engineering Workshop registered under the
Factories Act.
(Kha) Such candidates, who have obtained diploma in Mechanical Engineering
after completing three years course compulsorily, must possess five years
practical experience in an Automobile Engineering Institution registered
under the Factories Act.
(Ga) Candidates having post diploma in Automobile Engineering compulsorily
possess two years practical work experience in a workshop of Automobile
Engineering institution registered under the Factories Act. ".
When the process of selection was pending, a new rule was introduced in Recruitment Rules
requiring the person to be selected as a Motor Vehicle Inspector to possess a driving licence. Pursuant to
the selection made by the Commission, the appellants were appointed as Motor Vehicle Inspectors in the
years 1991 and they have continued to hold the said posts till date.
On the ground that the selected candidates do not possess the qualification of experience in
appointment in an appropriate automobile institution registered under the Factories Act, 1948 or they did not
possess driving licence, their appointments were challenged by some of the candidates who were not
selected in several writ petitions. The learned Single Judge of the High Court who dealt with these writ
petitions did not examine the contentions raised on behalf of the writ petitioners in the necessary detail with
reference to each selected candidate but directed the Transport Commissioner to do that exercise. On
appeal, the Division Bench of the High court set aside the report sent by the Transport Commissioner
pursuant to the order made by the learned Single Judge which was received during the pendency of the
appeal and directed fresh consideration of the matter by the Transport Commissioner.
We fail to understand as to how the matter of selection and appointment to a post could have been
entrusted to the Transport Commissioner when the Commission had been specifically entrusted with such a
job and such Commission, which is an autonomous authority having a constitutional status, has selected
the candidates whose appointments were in challenge. If the selection of these candidates was improper
the same should have been set aside with appropriate directions to redo the process of selection or at best,
the High Court could have directed the Government, which is the appointing authority, to take appropriate
steps in the matter. However, in the facts and circumstances of this case, we need not dilate on this aspect
nor do we need to examine various elaborate contentions addressed by either side. Suffice to say that all
the selected candidates, who are in employment, except one, possess necessary qualification and in regard
to that one excepted candidate, it cannot be disputed that he possesses equivalent qualification. Thus the
dispute narrows down to one aspect, that is, the selected candidates may not possess necessary
experience which is now required to be examined by the Transport Commissioner.
The selected candidates, who have been appointed, are now in employment as Motor Vehicle
Inspectors for over a decade. Now that they have worked in such posts for a long time, necessarily they
would have acquired the requisite experience. Lack of experience, if any, at the time of recruitment is made
good now. Therefore, the new exercise ordered by the High Court will only lead to anomalous results.
Since we are disposing of these matters on equitable consideration, the learned counsel for the contesting
respondents submitted that their cases for appointment should also be considered. It is not clear whether
there is any vacancy for the post of Motor Vehicle Inspectors. If that is so, unless any one or more of the
selected candidates are displaced, the cases of the contesting respondents cannot be considered. We
think that such adjustment is not feasible for practical reasons. We have extended equitable considerations
to such selected candidates who have worked in the post for a long period, but the contesting respondents
do not come in that class. The effect of our conclusion is that appointments made long back pursuant to a
selection need not be disturbed. Such a view can be derived from several decision of this Court including
the decisions in Ram sarup Vs State of Haryana & Ors. 1979 (1) SCC 168; District Collector & Chairman,
Vizianagaram Social Welfare Residential School Society, vizianagaram & anr. Vs. M. Tripura Sundari Devi,
1990 (3) SCC 655; and H.C. Puttaswamy & Ors. Vs. The Hon'ble Chief Justice of Karnataka High Court,
Bangalore & Ors., 1991 Supp. (2) SCC 421. Therefore, we must let the matters lie where they are.
In the special features of this case, we set aside the order of the High Court and dismiss the writ
petitions. The appeals are, therefore allowed No costs.
***
Operation of reserve List
D.B.Civil W.P.No.1514/2001 and
D.B.Civil W.P.No.2376/2001
D.D. 6.8.2002
Hon'ble Mr. Justice Arun Kumar, Chief Justice
Hon'ble Mrs. Justice Gyan Sudha Misra
Suman Saharan & Others – Petitioners
Vs.
State of Rajasthan & Others – Respondents
Recruitment for Rajasthan Judicial Service
After the selection process a select list of 81 persons and a reserve list of 28 persons as against 81
vacancies notified were prepared. After 81 persons in the Select list were appointed, the petitioners who
were in the reserve list approached the High Court for operating the reserve list. The question is with regard
to the enforceability of the reserve list.
Held – General principles of law in relation to operation of select list and reserve list are as under:
(1) The candidates who are placed in select list or reserve list have no vested legal right of
appointment. Mandamus cannot be issued to direct appointment of persons from such lists. The
administration may have strong reasons to abandon the selection process in a given case. Thus,
mere fact that a person is placed in the select list does not confer a vested right of appointment on
him.
(2) It is incumbent upon the authorities to take into account existing and anticipated vacancies before
issuing an advertisement for recruitment to a particular post. It is not a matter of course that
authorities can fill up vacancies other than the advertised. This means that normally appointments
cannot be made against unadvertised vacancies, which are not subject matter of selection. A
waiting list or a reserve list cannot be used as a perennial source of recruitment for filling posts
which were not advertised.
(3) On appointments being made, the select panel ceases to exist and once the selection process is
over, reserve list cannot be operated.
Writ petitions were dismissed
Cases referred:
1. (1992) 1 SCC 105 Dr.Umakand Vs. Dr. Bhikalal Jain & Ors.
2. (1999) 3 SCC 696 Virender S.Hooda and Ors. Vs. State of Haryana & Anr.
3. (2000)1 SCC 600 A.P.Aggarwal Vs. Govt. N.C.T. of Delhi and Ors.
4. (2000) 9 SCC 283 Munna Roy Vs. Union of India & Ors.
5. JT 2001 (5) SC 461 Surinder Singh & Ors. Vs. State of Haryana & Ors
6. JT 2002 (2) SC 329 Thrissur District Co-operative Bank Ltd.Vs. Delson Davis P. &
Ors.
ORDER
By these two writ petitions under Article 226 of the Constitution of India the petitioners who claim to
have been placed in the reserve list for recruitment to Rajasthan Judicial Service ("RJS" for short
hereinafter) have sought direction that the reserve list be operated and they should be given appointments
to the posts of Civil Judge in the RJS.
Briefly, the facts are that on 19th February, 1998 the Registrar General of the Rajasthan High Court
addressed a communication to the Secretary to the Government of Rajasthan, Law and Legal Affairs
Department, Jaipur informing that the number of existing and anticipated vacancies in the RJS upto 31st
December 1998 had been worked out to be 81. The communication gave brake up regarding reservations
in view of the judgment of the Supreme Court in India Sahni Vs. Union of India, reported in AIR 1993 SC
427. A request was made in the said letter that requisition be sent to the Rajasthan Public Service
Commission, Ajmer ("RPSC" for short hereinafter) for advertising 81 vacancies for recruitment to the RJS.
In the end, it is stated in the said letter –
"You are further requested to ask the RPSC to prepare a reserve list of the candidates upto 50% of the
advertised vacancies as provided in Rule 19 of the Rajasthan Judicial Service Rules, 1955."
We have quoted the portion of the said letter because a lot will turn on the same for purpose of
decision of this case. In pursuance of the requirement notified by the High Court to the State Government
an advertisement was issued on 19th December 1998 regarding 81 vacancies in the RJS to be filled through
direct recruitment. In the advertisement it was mentioned that the number of posts may be increased or
decreased. A revised advertisement in respect of the aforesaid posts was issued by the RPSC on 4 th
January, 1999. The advertisement only extended the last date for submission of application forms. This
advertisement was published in 'Rajasthan Rozgar Sandesh' on 1st February, 1999. The advertisement
provided that the selection process was to comprise of written test followed by interview and final merit list
was to be prepared on the basis of the aggregate marks secured in written examination and interviews. By
a notification dated 11th January, 1999 issued by the State Government 28 new posts were created in the
RJS. It is the case of the petitioners that these 28 posts were not included in the 81 posts notified by the
High Court as vacant posts to the State Government and for which the RPSC had issued advertisement for
recruitment. The petitioners claim that the reserve list was meant to take care of such a situation. The
reserve list consisting 28 names, therefore, has to be operated and appointments are to be made from the
candidates in the said list. On the other hand, the stand of the respondents which include the State
Government, the High Court and the RPSC, is that these posts are included in the 81 posts notified in the
advertisement for purposes of selection. The respondents have stated that all existing vacancies as on 19 th
December, 1997 and anticipated vacancies upto 31st December, 1998 including 30 new courts to be created
in terms of statement made by the State Government before the High Court for opening 180 more courts
upto the end of Ninth Five Year Plan, i.e. upto 31st December 2002, constituted 81 vacancies for which
requisition was sent to the RPSC. The respondents have stated in clear and unambiguous terms that the
said new posts were taken into consideration while determining the number of vacancies as 81.
Written examinations were held on 23rd and 25th May, 1999 while interviews were held from 27th
October to 4th November, 1999. The result of the selection process was declared on 4th November, 1999 by
the RPSC. 81 persons were placed in the select list while 28 persons were placed in the reserve list by the
RPSC. The petitioners claim that they are included in the said reserve list of 28 persons. On 25th
November, 1999, the RPSC forwarded the main select list to the State Government. On 24th May, 2000, the
reserve list was forwarded by the RPSC to the State Government. On 30th June, 2000, appointment orders
were issued in respect of 81 persons placed in the select list. Ultimately, the High Court decided not to
operate the reserve list which led to the present writ petitions being filed on 20 th March, 2001 and 9th April
2001 respectively. The High Court has also stated that soon after completion of this selection process,
fresh process was started.
The question for consideration in the present cases, therefore, is, what is the efficacy and legal
force of the reserve list? In other words, what are the legal rights of the persons placed in the reserve list
prepared by a Public Service Commission, in pursuance of recruitment process undertaken by it?
The learned counsel for the petitioners conceded that for determining the above question, the most
important thing to be seen is the provision contained in the relevant rule. In the present case, the relevant
rule is Rule 19 of the Rajasthan Judicial Service Rules 1955, which is reproduced as under:"19. List of candidates approved by the Commission, - (1) The Commission shall prepare a
list of the candidates recommended by them for direct recruitment in order of their proficiency
as disclosed by their aggregate marks. If two or more of such candidates obtain equal marks
in the aggregate, the Commission shall arrange them in order of merit on the basis of their
general suitability for Service.
Provided that the Commission shall not recommend any candidate who has failed to obtain a
minimum of 45% of marks in aggregate both of Written and Oral Examinations.
Provided further that while selecting candidates for the vacancies so advertised, the
Commission may (1) if intimation of additional requirement is sent to the Commission before
the selection and (ii) if suitable persons are available, keep on their reserve list more
candidates whose number shall not exceed 50% of the advertised vacancies, the names of
such candidates may be recommended on requisition to the appointing authorities within six
months from the date on which the original list is forwarded by the Commission to the
Government.
(2) Two copies of such list shall be submitted by the Commission to the Rajpramukh."
The learned counsel for the petitioners fairly stated the correct legal position, i.e. the efficacy or
enforceability of the reserve list depends on the status given to it under the Rules and the relevant facts on
record. The requisition sent by the Registrar General of this Court, relevant portion whereof has been
quoted hereinbefore, is to be seen in the context of the second proviso to Rule 19. Does the said
communication from the Registrar General satisfy the requirements of the second proviso to Rule 19 is a
question which we consider as fundamental for decision of the present case. When we analyse the
provision, the following conditions emerge:(a) The intimation regarding preparation of reserve list should be received by the Commission while
selecting candidates for the vacancies advertised.
(b) The intimation has to be for additional requirement.
(c) It should be sent before selection.
(d) Suitable persons should be available.
(e) Such suitable persons should be kept on the reserve list which should not exceed 50% of the
advertised vacancies.
(f) The names on the reserve list are to be recommended on requisition to the appointing authority
within six months from the date on which original list was forwarded by the Commission to the
Government
In the present case, the communication sent by the Registrar General does not satisfy Conditions
(a) and (b). It will be seen from the letter of the Registrar General, relevant potion whereof has been quoted
hereinabove, that the requisition regarding reserve list was included in the same letter by which the
Commission was required to prepare a select list. Thus, the requisition was not sent during the period when
the Commission was selecting candidates. Secondly, the intimation does not talk of additional requirement.
It simply says – "Prepare a reserve list – as provided in Rule 19 of the Rajasthan Judicial Service Rules,
1955."
A bare perusal of Rule 19 as a whole, with reference to the second proviso shows that a reserve
list envisaged therein has to be regarding additional requirement. The letter of the Registrar General under
reference does not talk of additional requirement at all. It follows from the language used in the said letter
while referring to reserve list that the same has been mentioned in a very routine manner. If the additional
requirement was envisaged right at the initial stage when the requisition for a select list was being sent, it
could have obviously been included in the number of posts to be filled for which the main list was sought.
Therefore, it is apparent that there was no additional requirement in contemplation or envisaged when the
initial letter was written. This inference drawn by us fits in with the statements made on affidavit by the
respondents filed in reply to the writ petitions that the total number of vacancies was of eighty one posts
when the requisition was sent to the RPSC through the State Government. The respondents have
categorically stated that this figure of 81 included the 30 new posts which were to be created during the year
1998 as per the statement made by the State Government before the High Court regarding creation o 180
new courts upto 31st March, 2002 on yearly basis. In our considered view, the reserve list in the present
cases does not satisfy the requirements under Rule 19 and cannot be said to be a reserve list which confers
any right for appointment on the petitioners.
As already observed, the legal status of a reserve list depends on the relevant rule. Further the
relevant rule is to be read in the light of facts on record. As a General rule, it may not be wrong to state that
a reserve list cannot be operated for vacancies which were not in anticipation or contemplation at the time of
initiation of selection process. A reserve list is normally intended to fill up gaps arising on account of nonjoining or the lie by the selected candidates. The reason being that for a rare case, the entire selection
process may not have to be gone through all over again. However, if the relevant service rule provides that
the reserve list be prepared to take cadre of future vacancies the appointing authority may have to draw
upon the reserve list depending on the period prescribed in the rule for which such a list can be kept alive.
In the present case, Rule 19 is the only relevant rule. The said rule has the provision regarding life of the
reserve list that he requisition regarding the reserve list should be received from the appointing authority
within six months from the date on which the original list is forwarded by the Commission to the
Government. The Rule does not refer to a reserve list being prepared for purposes of future vacancies nor
does it talk of life of the reserve list. Normally when a reserve list is intended for future vacancies life of the
list is prescribed in the relevant rule itself. A reserve list cannot remain alive for indefinite period. It
adversely affects the right to seek employment of persons who acquire eligibility for the posts in question in
future. In our view, Rule 19 does not confer the status of a select list on the reserve list envisaged in the
said Rule. The Rule does not confer any right on the candidates on reserve list with respect to future
vacancies.
The learned counsel for the parties cited various cases in support of their respective contentions.
In our view, for deciding the present cases, what is of utmost important is the facts on record and the
relevant Rule under consideration. We have discussed the position of the present case in that light. The
cases cited before us turn on their own facts. Some of the cases cited before us need be mentioned. They
are:
A.P.Aggarwal Vs. Govt N.C.T. of Delhi and Others (2000) 1 SCC 600:
The facts of this case are totally different and the case has no bearing on the controversy in hand.
The appellant and another candidate were the only two candidates included in the panel prepared for filling
up a post of Member, Sales-Tax Appellate Tribunal. The other candidate joined in December, 1997 but had
to leave on 4th January, 1998 because he was selected as Member, Income Tax Appellate Tribunal. The
appellant's contention was that he should have been appointed when the other candidate left. In respect of
this, the Government initiated process for fresh selection. The decision of the case turned on the provision
contained in Section 13(4) of the Delhi Sales Tax Act, 1975, according to which, a vacancy for the
membership of the Appellate Tribunal was to be filled up as soon as practicable. The relevant OM dated
14.5.1987 issued by the Central Government also provided that serve lists may be operated in cases where
a vacancy is created by a candidate resigning the post or in the event of his death within a period of six
months from the date of his joining the post. Keeping these two provisions in view it was held that the
appellant who was also included in the select panel ought to have been given appointment on resignation by
the person initially appointed. Thus, in this case, both the candidates were on the select panel and
secondly, the statute as well as Government instructions required the post to be filled up as soon as
practicable. Therefore, appointment was given to the next person on the select list.
The facts of the present cases noted above are entirely different. The petitioners were not on the
select list. All the vacancies during the particular year for which selection process was undertaken were
included in the requisition and for the vacancies of the subsequent period fresh selection process was
immediately started after completion of the selection process in question. Therefore, this case is of no
assistance to the petitioners.
Virender S.Hooda and others Vs. State of Haryana and another (1999) 3 SCC 696:
In 1991, the Haryana Public Service Commission advertised 12 posts of Haryana Civil Services.
On completion of selection, final list was published on 19.6.1992. The appellants did not find place in the
merit list. Their contention, however, was that some of the selected candidates did not join and, therefore,
the appellants should have been considered against the vacancies so arisen, depending upon the ranking
obtained by the appellants in the competitive examination. They relied on some circulars to the effect that
vacancies arising within six months from receipt of the select list should be filled up from the waiting list
maintained by the Commission. The case was decided on the basis of the circulars of the Government and
the State was directed to consider the cases of appellants for appointment.
The present case is clearly distinguishable on facts. It is not a case of selected candidates not
joining, nor there are any circulars which can be relied upon or enforced as was in the case before the
Supreme Court. The petitioners in the present case are claiming appointments to additional posts, which as
per the case of the respondents never formed part of the selection process.
Dr. Umakand Vs. Dr. Bhikalal Jain & others (1992) 1 SCC 105:
This case was strongly relief upon by the learned counsel for the petitioners. However, in our view,
the facts in this case are totally different and, therefore, the case is of no assistance to the petitioners. The
University of Rajasthan had invited applications for the post of Professor in the Department of Botany. The
Selection Committee constituted under Section 5 of the relevant Act selected one 'N' for the said post and
also recommended the name of the appellant in the reserve list in terms of Section 6(4) of the Act. The
syndicate approved the recommendation of the Committee and appointed 'N' for the post. Initially, the
reserve list was to remain valid upto six months but later the Syndicate by its resolution passed in its special
meeting extended the period of validity of the list to one year from the date of approval of the Syndicate.
Before expiry of the extended period of operation of the reserve list, 'N' retired from service and thereupon
appellant who was already in the reserve list was appointed to the post of Professor in Botany. Those who
were not selected filed a writ petition in the High Court contending inter alia that once the selected person
joins the post, the reserve list exhausts itself. The High Court accepted the contention that the reserve list
stood exhausted and held that the appointment of the appellant was illegal. The Supreme Court allowed the
appeal holding that was clear from a reading of Section 5 with Section 6(4) that the Selection Committee
constituted shall recommend not only the candidates selected by it in order of merit but shall further prepare
a reserve list to the extent of 50% of vacancies of vacancies and persons kept in reserve list will be
considered as having been selected for the concerned post and shall be entitled for appointment if any
vacancy is caused during the validity period of the reserve list.
There is no such statutory provision in the case before us. Further, in the present case, the
petitioners are not claiming appointment to any vacancy occurring after the posts are filled from the select
list. The petitioners are seeking appointment to additional posts, which according to them, occurred after
the selection process had started, which assertion has been denied by the respondents. Thus, the claim of
the petitioners in the present case is regarding additional posts and further the petitioners claim that the
reserve list which contains their name, is as good as the select list. According to them, there is no
difference between the two lists. As already discussed hereinbefore, we have accepted the case of the
respondents that the alleged additional posts were taken into consideration while computing the vacancies
as eighty-one. Therefore, there is no occasion to contend that there were additional twenty-eight or thirty
posts to which appointments are being claimed by the petitioners. Another important distinguishing feature
between Dr. Umakant's case (supra) and the present case, is that the University Syndicate had extended
the life of the reserve list and the vacancy had occurred during the extended life of the reserve list.
Therefore, we are unable to derive any assistance from Dr. Umakant's case (supra) for the proposition being
canvassed on behalf of the petitioners.
On the other hand, the learned counsel appearing for the respondents cited several judgments in
support of their case that once appointments are made and the selection process is complete, the reserve
list cease to operate. In the first instance, our attention was drawn to Thrissur District Cooperative Bank Ltd.
Vs. Delson Davis P. & others, reported in JT 2002 (2) SC 329. The facts in this case were that the appellant
bank had invited applications for posts of Clerk-cum-Cashier, Data Entry Officer and Peons. So far as the
psot of Data Entry Officer is concerned, there was only one post. On completion of the selection process,
one T.D. Rolly was placed at No.1 while the respondent No.1 was placed at second position in the select
panel. Rolly joined the service, however, after some time, he resigned. The respondent No.1 approached
the Bank seeking appointment in place of Rolly. He was given temporary appointment. The respondent
No.1 approached the High Court and the High Court gave direction for giving permanent appointment to the
respondent No.1. The Bank appealed to the Supreme Court. The Apex Court observed, "when once the
selection process is complete and appointment had been made, the process comes to an end the if any
vacancy arises on the appointee having joined the post leaves the same, it must be treated as a fresh
vacancy and fresh steps in accordance with appropriate rules should be taken." The Bench relied on an
earlier decision of the Supreme Court, in State of Punjab Vs Raghbir Chand Sharma, reported in AIR 2001
SC 2900, which was a case in which applications were invited in respect of only one post. The first
candidate in the select panel accepted the offer and came to be appointed. On resignation by the candidate
so appointed, did other candidates on the panel have a legitimate right to claim appointment? The Supreme
Court expressed the view that on appointment being made the select panel ceases to exist.
In State of Bihar Vs. The Secretarial Assistant Successful Examinees' Union, 1986f & others
reported in JT 1993 (6) SC 462, it was held that a panel candidate on the select list did not have a right to
appointment merely on account of being empanelled. Empanelment at best, is a condition of eligibility for
purposes of appointment and by itself does not amount to selection or create a vested right to be appointed
unless relevant service rules provide for it. Some principle was reiterated in Munna Roy Vs. Union of India
and others, reported in (2000) 9 SCC 283.
Surinder Singh & others Vs. State of Haryana & others, reported in JT 2001 (5) SC 461, was a
case in which posts of Additional Ahalmads were to be filled up in two phases. Applications were invited for
10 posts for the first phase. Vacancies of the first phase were filled up. However, 10 vacancies of second
phase were also filled up without issuing any advertisement for the second phase. It was held that
appointments of the candidates in the second phase were rightly quashed by the High Court. The District
Judge had tried to justify the appointments of the second phase on the ground of urgency and to save time
and expenses for holding another examination for purpose of selection. The Supreme Court observed that
if such a reasoning is to prevail, then most of the subsequent selections can be made out of any previous
selection without advertising the vacancies. The reasons for selection cannot rob future prospective
candidates of opportunity and right to be considered for appointment. When an advertisement specifies a
particular number of posts, only that particular number of posts are to be filled. In this case, the
advertisement was for 10 posts. Selection for 20 posts which were to be filled up in two phases with respect
to two different years, was held to be wrong and unjustified.
Our own High Court had occasion to observe in this connection, in Maharshi Dayanand University,
Ajmer Vs. R.K.Vyas, reported in 2002 (1) WLC (Raj.) 87 that a reserve list lapses on appointment of duly
selected persons.
Another recent Division Bench decision of this Court in Dr. M.K.Gaur & others Vs. State of
Rajasthan & another, reported in 2002 (2) RLR 39, to which one of us (the Chief Justice) was a party,
contains observations which are relevant for the point in issue, so far as the legal aspect is concerned. On
facts, the case was different because of the contents of the relevant rules. On the legal aspect, this Court
examined various relevant decisions of the Apex Court. The net result of the discussion on the legal issue
was that requisition by the Government from reserve list can be only in relation to the select list prepared by
the R.P.S.C. and not beyond that. It cannot in any case be in relation to posts which were not the subject
matter of selection. It was held that appointments cannot be made from reserve list on unadvertised
vacancies which re not subject matter of selection. Rule 20 of the relevant Rules provided for preparation of
a select list by the Commission, in accordance with merit of candidates and it was to be forwarded to the
Government. Proviso to Rule says that the Commission shall prepare a reserve list to the extent of 100% of
the select list and that shall be operated if requisition is made by the Government within the existence of the
reserve list. The requisition by the Government from the reserve list shall be in elation to the select list
prepared by the Commission and not beyond that or not in relation to posts which were not the subject
matter of selection under Rule 16. As soon as the selection of the candidates of the advertised vacancies
culminates into giving appointments on the vacancies advertised, the reserve list comes to an end. It
revives only in the eventuality of select list becoming re-operative on account of non-joining of selected
candidates or on appointed candidates leaving the posts soon after joining during the existence of the select
list which has its own life under the rules.
General principles of law that emerge in relation to operation of select lists and reserve lists are as
under. We, however, make it clear that these are only general principles and may not hold the field in cases
where the position of the relevant service rules is to the contrary.
(1) The candidates who are placed in select list or reserve list have no vested legal right of
appointment. Mandamus cannot be issued to direct appointment of persons from such lists. The
administration may have strong reasons to abandon the selection process in a given case. Thus,
mere fact that a person is placed in the select list does not confer a vested right of appointment on
him.
(2) It is incumbent upon the authorities to take into account existing and anticipated vacancies before
issuing an advertisement for recruitment to a particular post. It is not a matter of course that
authorities can fill up vacancies other than the advertised. This means that normally appointments
cannot be made against unadvertised vacancies, which are not subject matter of selection. A
waiting list or a reserve list cannot be used as a perennial source of recruitment for filling posts
which were not advertised.
(3) On appointments being made, the select panel ceases to exist and once the selection process is
over, reserve list cannot be operated.
Applying the above principles to the facts of the present case, it follows that the select list was
operated and the 81 candidates of the select list were offered appointments. All the advertised vacancies
were filled and the selection process came to an end. An additional fact in the present case is that fresh
selection process was started soon after the selection process was completed. This renders the case of the
petitioners, who were on the reserve list, totally devoid of any merit. The candidates on the reserve list have
no case.
DB Civil Writ Petition No.2376/2001 – Durga Singh Vs. State of Rajasthan and another:
An additional argument raised on behalf of the petitioner in this case is that the petitioner was the
senior most candidate on the reserve list, i.e. he was at the top of the reserve list. One of the candidates in
the select list, namely, A.S.Agarwal resigned from service after a few months of joining and, therefore, the
petitioner claims he should have been given appointment on the vacancy caused due to resignation of
A.S.Agarwal.
In normal course, it could be possible to say that on vacancies occurring on account of resignation
or death of candidates appointed from the select list, vacancies should be filled from the reserve list. But in
the present case, such a claim by the candidate in the reserve list is not tenable. The reason for this is that
A.S.Agarwal resigned after about five months of joining. He joined on 1.8.2000 and resigned on 6.1.2001.
In the meanwhile the selection process was over. It has already come on record that soon after completion
of the selection process on 30.6.2000, it was decided to start fresh selection process. On such a decision
being taken, the reserve list ceased to have any force or value.
The reserve list could not be said to have been kept alive till January, 2001 when A.S.Agarwal
resigned. It was never known that A.S.Agarwal was going to resign in January, 2001. Therefore, the
petitioner in the present case has no right to seek appointment merely on the basis of the fact that he was a
Serial No.1 on the reserve list. The claim of the petitioner is without any merit and deserves to be rejected.
Both the writ petitions are accordingly dismissed leaving the parties to bear their respective costs.
***
Amendment of Rules
AIR 1998 SUPREME COURT 2251
Rajasthan Public Service Commission v. Chanan Ram
Constitution of India, Art. 309 – Rajasthan State Agricultural Marketing Service Rules (1986) (as amended in
1995), R.6 – Recruitment – Advertisement for posts of Assistant Director (Junior) – Amendment of Rules in
the meantime abolishing said posts and creating new posts of Marketing Officers – Fresh advertisement
issued for filling up vacancy in new posts - Thus earlier advertisement became infructuous and otios –
Candidate making application under earlier advertisement, in circumstances, cannot insist that recruitment
process pursuant to said advertisement must be continued and must be brought to its logical end – Fact that
old vacancies were carried forward and got merged along with three more vacancies for the newly created
posts of Marketing Officers, would not mean that still earlier vacancies remained existing under Rules for
appointing eligible persons to erstwhile vacant posts of Assistant directors ( Junior ).
1997 Lab IC 2217 (Raj), Reversed.
AIR 1983 SC 852, Disting.
***
Short listing of candidates
No. F. 25/4/97-R(C&P)
UNION PUBLIC SERVICE COMMISSION
RECRUITMENT (C & P) SECTION
Dated: 10th September 2000.
Subject: Judgment delivered by the CAT, Bangalore on
O.A.
No.19/2000. filed by Dr. Kedutso Kapof Vs. U.P.S.C & Others.
***************
The grievance of the petitioner was that though the Union Public Service Commission issued
interview letter to several candidates, the application of the petitioner was not considered and over looking
the greater experience than the applicant had in the area of teaching/research and the fact that he was
otherwise eligible, certain other candidates were called for interview. The petitioner complainer that the
denial of interview to him was arbitrary and in violation of the provisions of Articles 14 and 16 of the
Constitution of India.
The operating part of the judgment delivered by the CAT, Bangalore is reproduced below:" It appears to us that the criterion of experience in teaching/research
after obtaining Ph.D., for a period of 12 years or more, as adopted by
the UPSC can certainly be brought within the ambit of the expression
"expression "experience higher than the minimum prescribed". There
can be little doubt that the experience in teaching/ research acquired by
a candidate after he has obtained a doctorate degree will be of a higher
quality than similar experience over the same period of time., partly or
wholly before he acquired the Doctorate degree. We, therefore, hold
that applying the yardstick of post-doctoral experience of 12 years and
more in teaching/research for the purpose of short listing the candidates
for the interview by the UPSC is perfectly valid and legal in these
circumstances. We are also not impressed by the argument advanced
on behalf of the applicant that application of that yardstick would be in
contravention of the provision of the Recruitment Rules and, therefore,
was invalid on that score. As we have already observed, the
Recruitment Rules only provide for the basic eligibility conditions and
among those who satisfy the basic the basic eligibility conditions
prescribed under the Recruitment Rules, a Agency/Body like UPSC is
fully competent to shortlist the candidates further for the next stage in
selection, i.e., for candidates further for the next stage in selection, i.e.
for interviewing them. This is clearly the valid position in law and the
action of the UPSC in short listing the candidates based on experience
higher than the minimum prescribed reckoned in terms of postdoctorate experience cannot be issued on this court".
Circulated for information and guidance among all Officers/Sections in the Recruitment Wing.
***
F.25/3/2001-R(C&P)
UNION PUBLIC SERVICE COMMISSION
RECRUITMENT (C&P) SECTION
New Delhi, 22nd March 2001.
Subject: Judgment delivered by the CAT, Hyderabad on O.A No.
1697/99, filed by Sh. K Srinivasa Rao Vs. Union Public
Service Commission & others.
***********
An applicant filed the above mentioned OA seeking relief on his non-selection and against the
appointment of another candidate for the post of Customs Appraiser, for which selection was made by the
Commission vide Advt. No. 3 of 1998.
Vide it's Judgment dated 29.12.2000, delivered in this case, the CAT, Hyderabad upheld the
authority of the Commission to shortlist the candidates, giving due weightage to professional qualifications
such as M.A/M.Phil/Ph. D. etc.
The operative part of the Judgment dated 29.12.2000, delivered in this case, the CAT, Hyderabad
is reproduced below:
"In the instant case, however, so long as the Recruitment
Rules issued under Article 309 of the Constitution provides for
"Qualifications are relaxable at the discretion of the Union Public
Service Commission in case of candidates otherwise well qualified",
and this principle having been incorporated in the notification issued by
the Union Public Service Commission (which unfortunately did not get
printed in the Employment News 14-20 February 1998), and the same
weightage having been extended uniformly, we do not find any
arbitrari0ness in the decision in having given weightage in the
experience for higher academic qualification.
AIR 1990 SC 434 (Dalpat Abasahed Salunke V.B.S. Mahajan)
dealt with a case where a case where a Committee consisted of experts
selected certain candidates which selection was set aside on the
ground of the comparative assessment on merit by the High Court. This
decision of the High Court was set aside by the Supreme Court. In the
instant case, however, no malafides have been attributed to the expert
members of the selection Committee nor have we found the selection
process vitiated on any grounds. In fact, we appreciate the pains taking
effort put in not only by the Union Public Service Commission but also
by the Interview Board in the selection process.
We are fortified by the decision given in AIR 1976. The SC
1404 (Maheshwar Prasad Srivastava V. Suresh Singh) which held that,
"In matters involving consideration of questions regarding adequacy or
sufficiency of "training", the Public Service Commission, having the
benefit of expert opinion, is better situated to judge whether the
particular candidate is qualified for a particular post and High Court
under Article 226 should hesitate to interfere with the direction o the
appointing authority, so long as it is exercised bona fide".
Circulated among all officers/sections in the Recruitment Wing for information.
***
F.25/3/2001-R(C&P)
UNION PUBLIC SERVICE COMMISSION
RECRUITMENT (C&P) SECTION
New Delhi, 4th March 2002.
Subject: Judgment delivered by the CAT, Ahmedabad Bench on OA No.
423/2000, filed by Sh. R.L. Pathak Vs. UPSC & Others. (Dealt
in File No. F.25/58/2000-R(C&P/R.V) Rectt. File No. 1/276/92R.V)
**********
The grievance of the applicant, Sh. R.L. Pathak was that he was not called for interview despite
possessing the required qualifications for the post of Superintendent in the Central Excise in the Board of
Excise and Customs for which he was an applicant, pursuant to an advertisement of the Commission. He
had also alleged that contrary to one of the instruction contained in the advertisement – viz., "The candidate
will be informed of the result of their applications in due course and any interim inquiries about the result are
therefore unnecessary and will not be attended to". – he was not informed of the fate of his application also.
The Hon'ble CAT. Ahmedabad vide their judgment dated 05.12.2001 dismissed the contention of
the applicant in the process upholding the authority of the Commission to shortlist the candidates to be
called for interview.
The operative part of the judgment is reproduced below:
"..........Even if for a moment we agree with the submission of the applicant that he had sufficient
experience it was always open for the UPSC or the selection body to shortlist the candidates and all only
those who are more meritorious. The experience factor shown by the applicant might not be sufficient to
call him for the interview for the said post as more experienced persons might be available. It is for the
UPSC to consider the cases of each candidate on their own merit and we do not see any reason to interfere
with the discretion exercised by the UPSC therein. The applicant cannot claim by way of right to be called
for interview when he was not possessing necessary educational as well as experience qualification. We
also do not see any reason to condone the delay in filing the OA as the applicant has waited for more than 7
years after the result of the selection was notified. The UPSC is not bound to inform each and every
candidate the out come of his application and therefore it was necessary on the part of the applicant to be
vigilant enough to find out what had happened so far the impugned advertisement was concerned. The
applicant must know that the result of the selection carried out by the UPSC are generally declared in the
Employment News and ought to have referred to that Employment News. It does not lie in his mouth to say
because he was of Baroda ad deputed at Lucknow he had not known the result of the selection to the post
of Superintendent. We therefore do not find any merit in this OA as well as do not see any sufficient cause
advanced by the applicant for condoning the delay in filing this OA.
Circulated in the Recruitment Wing for information and guidance of all concerned.
***
MAHARASHTRA ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH
Original Application No.1008 of 1993
D.D. 6.10.1999
Hon'ble Member A.R.Vazalwar (J)
Hon'ble Member V.H. Sakhalkar (A)
Shri Sandeep Maruti Chavan – Applicant
Vs.
The State of Maharashtra & Anr. – Respondents
As the number of candidates was large, P.S.C. adopted criteria for short listing the candidates –
Candidates not fulfilling the criteria approached the Tribunal – Tribunal upheld the procedure adopted by
P.S.C.
JUDGMENT
Heard Smt. Poonam Mahajan, learned advocate for the petitioner and
Shri S.R. Atre, learned
Presenting Officer for the respondents.
2.
The applicant in this case appeared for competitive examination conducted by the MPSC for the
post of Police Sub Inspector. He belongs to VJ/NT category. It is the contention of the applicant that in short
listing candidates for interview the criteria of marks in written examination prescribed for VJ/NT was he
same as was prescribed for the general category. Therefore, according to the applicant he was deprived of
selection. The argument of the learned counsel for the applicant runs on the line that if lower criteria would
have been selected in open category vacancies also increasing the chances of the applicant being selected
for the post. It is further contended that the criteria for short listing of candidates for Scheduled Caste,
Scheduled Tribes and Ex-servicemen was 200,160,160 but in respect of VJ/NT and in respect of general
category it was 215. Thus, the criteria had no nexus to the object of reservation of seats for these
categories. Further it is also mentioned that in the examination held in earlier years i.e. in 1987, 1989, 1990
and 1991 lower criteria for short listing was prescribed for VJ/NT as compared to criteria for open category.
Hence prayer is that he should be selected for the post of Police Sub Inspector.
3.
The respondents have resisted the application on the following grounds. It is pointed out that
according to Kothari Committee's Report on the recruitment policy and selection method of Civil Services
Examination of the UPSC the number of candidates to be called for interview on the basis of the marks
obtained in the written examination should not exceed twice the number of vacancies to be filled. The
Supreme Court has also upheld this view. The number of posts advertised for VJ/NT category were 28 and
68 candidates were called for interview. After completing all the formalities not only 28 candidates
belonging to VJ/NT category were recommended in the reserved category but 7 more candidates belonging
to VJ/NT also qualified for open category post. Thus, there is no infirmity in the selection process.
4.
At the outset this Tribunal is not competent to sit as an appellate authority over the mode and
manner of selection to be adopted by the MPSC which is a specified body created by the Constitution. It is
well settled that number of applications is large, the commission is competent to adopt short listing criteria
for the purpose of selection or for the purpose of selection or for the purpose of calling candidates for
interview. The criteria will obviously be based on number vacancies and the marks secured by the
candidates belonging to that particular category, so as to ensure that candidates ultimately called for
interview are within manageable limit. Thus, prima facie there is no infirmity in applying the criteria on the
basis of accepted norms.
5.
The contention of the applicant that this deprived the candidates belonging to the VJ/NT category
from competing for the post in open category is inconsistent with the facts because in fact 7 persons
belonging to VJ/NT category were selected in open category. The argument is also fallacious because at
the time of preparation of common merit list all the persons in the VJ/NT category will be shown in
accordance with the marks and those who fit into reserved category will be selected in the category and
those who were eligible for being selected in open category will obviously be selected in open category. It is
admitted position that the applicant did not satisfy short listing criteria as he secured 210 marks when Short
listing criteria prescribed 215 marks.
6.
A comparison between short listing criteria in various years is not tenable because short listing
criteria will depend upon number of posts and the marks secured by the candidates in that particular
examination. Thus, the argument that in that particular examination. Thus, the argument that in earlier
years lower criteria was prescribed has no connection with the criteria to be prescribed in the subsequent
years. Besides even when a lower criteria was prescribed, the applicant could not secure necessary marks
so as to eligible for being called for interview in those relevant years. Thus, the applicant has no case for
being selected. It is settled position of law that the Tribunal cannot direct selection of any person ad it is for
the bodies competent to decide the question of selection.
7.
In view of the position pointed out in the proceeding paragraphs, we do not see any reason to grant
relief to the applicant. The application is dismissed with no order as to costs.
***
Civil Appeal Nos.3929-3932/1990
D.D. 2.4.1997
Hon'ble Mr. Justice K.Venkataswami
Hon'ble Mr. Justice S.P.Kuppukar
Orissa P.S.C. – Appellant
Vs.
Gobinda Mohan Swain & Anr. – Respondents
Held – Short listing of candidates can be done by P.S.C. even in emergency recruitment but must
adopt proper method – Short listing by taking the academic marks alone into consideration is not proper.
ORDER
These appeals are directed against the judgement of the Division Bench of the High Court of
Orissa setting aside the selection of Munsifs to Orissa Judicial Services Class II on the ground that the short
listing done by the appellant was without authority.
Even though notices were served on writ petitioners who were the I-respondent in each case. They
do not appear before us to contest the cases.
At this distance of time we do not propose to upset the selection as the selected candidates by
virtue of interim orders of this Court are functioning as Judicial Officers. It is pointed out that the selection in
question was done under Orissa judicial Services. Class-II (Munsiff Emergency Recruitment) Rules, 1979.
We agree with the agreements of the learned counsel for the appellant that even in the emergency
recruitment short listing of the candidates is unavoidable. At the same time, we must also observe that the
method to which the short listing is done in the present case is not acceptable. As in our view this short
listing by taking the academic marks alone into consideration will not serve the purposes.
We wish to make it clear that the directions given by the High Court in paragraph 13 should be
complied with by the State Government if they have not already done so. Until the directions given by the
High Court in the said paragraph is complied with, recruitment under the Emergency Rules shall not be
resorted to. With these observations, we uphold the selection has been set aside by the High Court. These
appeals are accordingly disposed of.
No order as to costs.
***
ORISSA HIGH COURT
O.J.C. No.6446 of 1994
D.D.30.4.97
Hon'ble Mr. Chief Justice S.N.Phukan
Hon'ble Mr. Justice A.Pasayat
Sri. Samarendra Kumar Bal – Petitioner
Vs.
State of Orissa & Anr. – Opp. Parties
Held – Amendment providing for preliminary Screening Test of all the eligible candidates on the
basis of marks obtained in different University Examinations etc., for the purpose of short listing is illegal.
Cases referred:
AIR 1987 SC 454 Ashok Kumar Yadav v. State of Haryana
AIR 1995 SC 77 M.P. P.S.C. –vs- Navnit Kumar Potdar
JUDGMENT
In all the aforementioned four petitions, the point of law involved is the same. Therefore, they were
taken up together and are disposed of by common order.
In pursuance of the advertisement dated 25-09-1993 published by the Orissa Public Service
Commission, the petitioners applied for the post of temporary munsif (emergency recruitment) in Class-II of
the Orissa Judicial Service. The grievance of the petitioner is that they were not called for interview. They
have challenged the vires of the Orissa Judicial Service Class-II (Munsif) (Emergency Recruitment)
(Amendment) Rules 1993.
Rule 7 of the Orissa Judicial Service Class-II (Munsif) (Emergency Recruitment) Rules 1979 read
thus:“7. Recruitment to the post of temporary Munsifs shall be by an
conducted by the Public Service Commission.
interview
Provided that a nominee of the High court shall be present at the interview and
advise the Commission regard to their knowledge of law and aptitude for judicial
service”
After the amendment in 1993, the said rule runs as follows:“7(1) Recruitment to the post of temporary Munsifs shall be made by an interview
conducted by the Public Service Commission and in every such interview a sitting Judge of
the Orissa High Court nominated by the Chief Justice shall be present to advise the
Commission on the fitness of the candidates from the point of view of their possession of
the special qualities required in the judicial service, but he shall not be responsible for the
selection of candidate.
2) The number of candidate to be called for the interview shall at the most be three times
the number of vacancies advertised and one hundred marks shall be earmarked for such
interview
3) Not withstanding anything to the contrary in these rules, where it is
considered expedient, the public service commission for the purpose of
determining the number of candidates referred to in sub-rule (2) may make a
preliminary screening of all the eligible candidates on the basis of the marks
obtained in different university examinations and the length of practice at the
bar.”
The point raised by the petitioners is that in awarding career marks, Master Degree in subjects
other than law should not be taken into account. It may be stated here that all the petitioners were short
listed because they could not qualify on the basis of career marking. Therefore, they were not called for
interview.
In the counter affidavit filed on behalf of the opposite parties, it has been stated that keeping in
view the requirements for the posts of Munsif, eligibility criteria of a candidate for recruitment to the said post
have been prescribed under the aforesaid Rules. It has also been stated that for obtaining Master Degree in
Law and for practice at the bar, more marks are awarded towards career marking. It has been mentioned
that this was decided by the then Hon’ble Chief Justice of this High Court in a meeting attended by the
Chairman of the Orissa Public Service Commission, and the Secretary to the Government of Orissa, Law
Department. Therefore, there is no infirmity or illegality in rule 7 as amended. It has been also been stated
that assessment of the academic achievement of a candidate on the basis if class/division secured in
various examinations including Master Degree in necessary in order to secure that better talents are
selected for the post. In this connection, our attention has been drawn to a decision of this Court on O. J. C
69 & 106 of 1993, dispensed as on 28.1.1993. We are of the opinion that this decision is not relevant as it
was confined to the old Rules and recruitment to the post of Orissa Superior Judicial Services (Senior
Branch)
Learned counsel for the petitioners took us to the decision of the Apex Court in Ashok Kumar
Yadav -vs- State of Haryana, AIR 1987 SC 45%. But, the ratio laid down therein is not helpful to the
petitioners. It is not incumbent on the public service commission to call the candidates for interview, and the
commission was justified in awarding career marks to the candidates to determine the exact number of
candidates to be called for interview. It has been urged that career marking for Master Degree in subjects
other than law is irrelevant as it has no nexus to the service. This being purely a policy decision, we do not
want to interfere. We may only state that it is necessary to find out the best candidates for recruitment as
judicial officers.
We may also refer to the decisions of the Apex Court in M. P Public Service Commission -vsNavnit Kumar Petdar, Air 1995 SC 77. In that case, there was a process of shortlisting of candidates who
applied for the post of Presiding Officer, Labour Court. The Commission took a decision to call for the
interview only such candidates who had completed 7 ½ years of practice, instead of calling for interview all
applicants who had put in 5 years of practice, which is the minimum requirement to make an applicant
eligible to apply for the post. The apex court held that rising the period of practice from 5 years to 7 ½ years
did not amount to changing the statutory criteria by an administrative decision.
For the reasons stated above, we held that career marking is not illegal and the public service
commission did not act illegally by not calling all the candidates for interview. The amendment in question is
not ultra vires. The writ petitions have no merit and are, therefore, dismissed.
***
O.J.C. No.14619/98
D.D. 23.6.2000
The Hon'ble Mr. Justice P.K.Mohanty
The Hon'ble Mr. Justice CH P.K. Misra
Dr. Rajat Mohanty – Petitioner
-vsOrissa P.S.C. & Others – Opp. Parties
Held – Short listing of candidates for recruitment to the post of Junior Teacher (Lecturer) in
Obstetrics and Gynecology Services of the State on the basis of performance in academic career of
candidates at H.S.C., H.S.S.C. (+2) and M.B.B.S. Examinations as per Recruitment Rules is valid.
Cases referred:
1. JT 1990(2) S.C. 264 Direct Recruit Class-II Engineering Officers Association
& Ors. V. State of Maharashtra & Ors.
2. 1997(1) ATT (S.C.) 178 Secretary (Health) Department of Health & Family Welfare & Anr. V. Dr. Anita
puri & Ors.
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 & Ors.
JUDGEMENT
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 of Junior
Teacher (Lecturer) in obstetrics and Gynaecology 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 1996-97 issued by 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 opp. 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 atleast 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.2000 – 3500/-, which was subsequently revised
to Rs.6500 – 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
inservice 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
15.2.1991 and thus, had an experience of more than one year as an Assistant Surgeon as on 31.8.1996
and he possessed a post Graduate Degree in Obstetrics and Gynecology from Sambalpur University. But
the opp.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 20.6.1996 and had possessed experience of only two months and 11 days, were
considered and 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 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 Obstretrics 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 were not 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 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 or necessary to interview all those candidates, in
terms of paragraph 9 (v) of the Advertisement, a preliminary selection was made to short-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 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 shortlisting 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 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 Lecturer 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 scale 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 Article 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 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 has 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 quashed. 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 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 teaching 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 appointing 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.
(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 199697 invited applications in the prescribed form for filling up the post of Lecturers in different faculties
including Obstetrics and Gynaecology. 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
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 conduction a preliminary written test.
9.
Undisputedly, the O.P.S.C advertised for five vacancies in the discipline of obstetrics and
gynecology for which 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 clause 9(v) of the advertisement, a preliminary
selection was made to short list the candidates to be called for the interview/viva voce test. The short list
was done on the basis of the evaluation of the academic career of the candidates beginning from the stage
of H.S.C , H.S.S.C. (+2) and M.B.B.S examinations. The 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)
candidate, who was called to the interview has 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 is 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 case of Dr. Tophan Pati v State of Orissa, 1998 (II) O. L.
R. 502. The very same advertisement no. 7 of 1996-97 issued b 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 of 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 v Dr. Anita Puri and others 1997 (i) ATT (S. C) 178 of the apex court, which
held that the 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 candidates. 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 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 shortlisting 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 persons 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 lack 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 of the post of a Lecturer
should have at least one year experience as an 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 adhoc 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 20.6.1996 on the recommendation of P. S. S and
therefore on the date of receipt of the application i.e. on 30.4.1996 se did not have experience of one year
as Assistant Surgeon. Similarly, Dr. Kirtirekha Mohapatra (opp party no. 4) was Assistant Surgeon an adhoc
basis from 30.12.1993 to 2.7.1996 against a post of L. T. R. M. O in the District Headquarters 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 31.8.1996 from the date she was appointed regularly on the
recommendation of the P. S. C. The learned counsel emphatically submits that the appointment of adhoc
Surgeon in unknown to the 1941 Orissa Medical Service Recruitment Rules of the State Government of
recruitment of Assistant Surgeon and therefore since the opp parties 2 and 4 were admitted held adhoc
appointments which are fortuitous and stop gap appointment dehors 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
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 adhoc basis and a person
appointed on adhoc basis also functions in the a 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 adhoc basis has to be reckoned fro the purpose of experience. The Tribunal has also taken note of the
decision of the Government in Health and Family Welfare Department in the Resolution dated 9.7.1992,
wherein the break periods are condoned in respect of the adhoc employees. A reference may be made to
the case in Ajit Kumar Rath v 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 V State of Maharashtra and others, JT 1990 (2) S. C 264 held that of 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 accordance with the Rules, the period of
officiating services will be counted for the purpose of seniority and experience. In Shri. L. Chandrakishore
Singh v State of Manipur and others JT 1999 (7) S. C. 576, the Apex Court held that the seniority itself
based upon length of services is an acquired right of an employee which entitled him to be considered for
the further promotion. The length of service may be on the basis of the difference of continuous officiating or
on the basis of the 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
appointments, 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 officiating. It is admitted position that opp party
no 2 Dr. Subhra Ghosh was appointed as Assistant Surgeon on ahoc basis and posted to P. H. C on
16.11.1994 and she continued on adhoc basis with technical breaks on one day between the spells of
appointments and was appointed on regular basis on the recommendation of the Public Service
Commission on 20.6.1996. Dr. Kirtirekha Mohapatra (O. P.No. 4) was appointed as an Assistant Surgeon
on adhoc 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 adhoc 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 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 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 shown that on the basis of the
career assessment mark, the petitioner obtained or would have obtained more 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 candidates who had secured higher percentage of marks than
the applicant at the career assessment marks by the P. S. C. If the person 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 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-rules (1) the appointment may be made by direct recruitment through the Commission, if necessary by
relaxation of the prescribed qualification. Since the candidates with the prescribed qualification are available
in plenty, there is no occasion for restoring to the recruitment under Sub Rule (4). Thus, the contention of
the learned counsel is misconceived and has to be rejected.
13.
In that view of the matter, we do not find any merit in the writ application to interfere with the
impugned order of the learned Tribunal. Accordingly, the writ application is dismissed, but in the
circumstances there shall be no order as to cost.
***
1989(5) SLR 133
Balbir Singh v. Punjab P.S.C. (Pb. & Hry.)
Constitution of India, Articles 14 and 16 – Interview - Shortlisting the number of candidates for Interview –
Holding of Screening test in four different batches – cannot be considered to be an act of arbitrariness on
the part of the Commission.
To consider the question of discrimination as agitated by the petitioners, one has to bear in mind
the fundamental fact that there were more than five thousand applications for the posts advertised. As a
matter of fact the Commission had visualized this contingency and had, therefore, notified in the
advertisement itself that there may be a written test for shortlising the candidates.
***
(Para 3)
1990(2) SLR 472
Amrit Lal Garg v. State of Punjab (Pb. & Hry.)
Constitution of India, Articles 226 and 311 – Punjab Civil Service (Executive Branch) (Class I) Rules, 1976,
Rule 23(2)(a) – Selection/Appointment – Appointment to the Punjab Civil Service (Executive Branch) on the
recommendation of State Public Service Commission – Withdrawal of recommendation by the Commission
on the ground that there was discrepancy in the award of marks by the Commission in favour of petitioner –
Removal from Punjab Civil Service – Action of the Commission invalid – After recommending the name of
the petitioner as a selected candidate for appointment to the Punjab Civil Service (Executive Branch)
Commission became functus officio and had no jurisdiction to withdraw the recommendation.
The recommendation made in favour of the petitioner has been withdrawn by the Commission in
the wake of show-cause notice and the petitioner stands removed from the Punjab Civil Service (Executive
Branch), without holding any inquiry at all, much less a detailed one, in accordance with the statutory rules.
Such an action cannot be countenanced as it is wholly violative of the principles of natural justice, as also
against the provisions of the Punjab Civil Service (Executive Branch) (Class I) Rules, 1976.
It had nowhere been suggested much less established, that there was any misconduct or
irregularity committed by the petitioner, as such, when he was not even remotely connected with the alleged
discrepancy in the award of marks etc., the petitioner could not be made to suffer for any mistake which had
either been deliberately committed or inadvertently crept in the records of the Commission selection had
been made by the Commission and the name of the petitioner had been recommended as a selected
candidate for appointment to the Punjab Civil Service (Executive Branch), the Commission was functus
officio and had no jurisdiction to withdraw the recommendation. Once appointment of the petitioner had
been made to the Punjab Civil Service (Executive Branch) and he became a member of the Service
governed by the Statutory service rules framed under Article 309 of the Constitution namely, Punjab Civil
Service (Executive Branch) (Class I) Rules, 1976, he could only be removed from service by holding an
inquiry, if work and conduct of the petitioner were not found upto the mark or by way of disciplinary action
contemplated under the aforesaid Rules.
(Para 10)
***
1996(5) SLR 375
State of Punjab v. Kamal Dev (Pb. & Hry.)
A. Constitution of India, Articles 14, 16 and 320 - Interview/Viva Voce/Selection/Appointment – Selection for
appointment to number of posts of Head Masters and Head Mistresses in Punjab Education services
(Gazetted II) School Cadre – More than 8,000 candidates applied for 180 posts – Holding of screening test
for short listing candidates for purposes of calling candidates for interview – It is one part of the entire
selection process – Final selection on the basis of interview – Marks in interview split up i.e. for academic
qualifications 60% and for interview 40% - Marks obtained in the screening test need not be added in the
process of selection by interview – Fair method of selection – No arbitrariness, in the process of selection.
(Paras 6, 12 and 13)
B.
Constitution of India, Article 320 – Public Service Commission Rules, Rules 3 and 10 – Quorum –
Selection for appointment by Public Service Commission – Special Rules providing for quorum shall prevail
over general regulations.
***
Educational Qualification
1981 (1) SLR 469
KPSC Vs. N.C. Hugar (Kar.)
(Full Bench)
Held – When a particular qualification is prescribed as the minimum qualification for recruitment
unless the candidate possesses the said minimum qualification he is ineligible for selection for appointment.
Even by possessing the higher qualification without possessing the prescribed certificate, Degree or
Diploma a person does not become eligible.
Higher qualification – Determination of – It is not correct to assume that degrees are higher than
diplomas or certificates – Diplomas or certificates conferred by some Institutions enjoy higher status in the
academic world than the degrees conferred by other Institutions.
Qualifications for a post prescribed under the statutory rules – It is not open to the Public Service
Commission to embark upon an investigation of the question as to whether the qualification possessed by
the candidate is higher than the prescribed qualification in as much as such power is not conferred on the
Public Service Commission – The power of prescribing qualifications is with the Rule making authority.
***
Original Application No.21 of 2001
D.D. 3.5.2002
Hon'ble Mr.Justice Vice-Chairman Shri R.Vasudevan
Hon'ble Member (J) Shri P.K.Gaikwad
Shri Nitin Prabhakar Sapke – Applicant
Vs.
The State of Maharashtra & Anr.
Following procedure of P.S.C. is upheld by the Tribunal
The Main Examination has been notified by the Mahashtra P.S.C. and the cutoff date for the
educational qualification, age etc., has been prescribed in the notification – As on the cutoff date the
applicant was not eligible – He did not possess Degree qualification prescribed – He obtained Degree
qualification subsequently – The claim of the applicant was rejected.
Cases referred:
1. 1993 Supp (2) SCC 611 Ashok Kumar Sharma Vs. Chandra Shekher
2. W.P.No.4928 of 1998 Bombay High Court (Aurangabad Bench)
3. 2000 S.C. (L&S) 916 Chottu Ram Vs. State of Haryana
O R D E R
Heard Shri. A.V. Bandiwadekar, learned advocate for the applicant and Ms. Swati Manchekar,
learned Presenting Officer for respondents. As the pleadings in this case were complete the matter was
taken up for final hearing and is being disposed off by this order.
2.
The applicant was allowed by Respondent No.2 to appear for the Combine Preliminary
Examination held on 18.12.1999 for three posts, namely Assistant/Sales Tax Inspector/PSI. He cleared the
said examination and appeared for the main examination on 18.03.2001, which was originally to be held on
07.01.2001 but was postponed to 18.03.2001. In his application for the main examination he had
specifically stated that he had not passed the Degree examination of a Statutory University till 20.11.2000.
He appeared for the Degree examination held in November 2000 by Yeshwantrao Chavan Maharashtra
Open University, Nasik and was declared to have passed the said exam as per the certificate dated
20.12.2000. The applicant was asked to appear for the physical test examination held at Aurangabad on
05.11.2001 consequent on his clearing the main examination. He passed the physical test examination held
at Aurangabad on 05.11.2001 consequent on his clearing the main examination. He passed the physical
test and was called for interview by respondent submitted a application in prescribed form on 20.10.2001
and 06.12.2001 in which he specifically referred to the fact that he has passed the Degree examination.
However, when he went for the interview he was denied entry on the ground that he had not obtained
Degree qualification on or before 20.11.2000.
3.
The applicant contends that fixing the cut-off date as 20.11.2000 to determine eligibility of the
candidate who appeared for the examination is illegal, mala fide and arbitrary since in the examination held
during the earlier years the Respondent No.2 fixed the cut-off date as being the date on which the main
examination is held. In other words, according to the applicant no such date prior to the exact date on which
the main examination was held was ever fixed by Respondent No.2 as the cut-off date. In this connection,
he has annexed the notification dated 06.03.1996 for the examination held for the same post in which the
date of main examination is mentioned as being 07.04.1996 and the same date namely 07.04.1996 is
mentioned as the cut-off date for Degree qualification. The applicant further contends that the date of the
main examination which was earlier fixed as 07.01.2001 was later postponed to 08.03.2001 and earlier
when the examination which was due to be held on 07.01.2001 the Respondent No.2 has fixed 20.11.2000
as being the cut-off date and therefore Respondent No.2 was obliged to postpone the cut-off date of
18.03.2001 as was done in respect of the examination of 1996. The actual date of the last paper in the
Degree examination held by Yeshwantrao Chavan Maharashtra Open University was 07.11.2000 that is
prior to 20.11.2000, which is the cut-off date for obtaining Degree qualification and therefore, the applicant
argued that even if the result of the said examination were declared on 20.12.2000 it should be held for all
purposes that the applicant has passed the Degree examination 07.11.2000 when he appeared for the last
paper. The learned advocate for the applicant stressed that the applicant was to appear for the main
examination followed by physical test ad therefore, it is clear that fixing the cut-off date as being 20.11.2000
was not considered by Respondent No. 2 as rigid but inflexible. He relied on the judgment of the Apex
Court in support of his argument that the date of interview namely 10.12.2001 should be considered as the
cut-off date for the purpose of determining the eligibility of the candidates. He further argued that the entire
objective of Respondent No.2 in holding the competitive examination should be to see that no candidate
who is ineligible in respect of either Degree or otherwise is allowed to appear for the main examination and
in the case of the applicant this object stands fulfilled. In the light of this, the applicant seeks relief in the
form of direction to Respondent No. 2 to allow the applicant to appear for the interview test and to grant to
him all consequential benefits, by holding that the fixation of cut-off date namely 20.11.2000 for the purpose
of determining the eligibility of the candidates for the post of Assistant/STI/PSI 1999 as illegal, malafide and
arbitrary. He also seeks directions in the forms of declaration that the applicant is eligible to appear for the
competitive examination as he appeared for the last paper of Degree examination on 07.11.2000, which is
prior to the cut-off date namely 20.11.2000.
4.
The Respondents have contested the claim of the applicant by filling affidavit-in-reply. In the said
affidavit they have averred that an advertisement was published on 14.07.1999 for the post of Assistant
STI/PSI for the preliminary examination 1999. The examination was held on 18.06.2000, the result of which
was declared on 02.11.2000. The applicant was not found qualified as per his merit rank. Accordingly a
notification regarding the main examination was published on 30.10.2000. The main examination was due
to be held on 07.01.2001. However, there were several representations from candidates that there were
printing mistakes in the question papers of preliminary examination.
On consideration of these
representations, the Commission decided to allow all the candidates who appeared for the preliminary
examination to take the main examination subject to the verification of their eligibility in terms of age,
educational qualification etc at any stage of the examination. According to the Respondents, eligibility of the
candidates is usually verified from the application submitted by the candidates before they appear for the
main examination. However, in this case as all the candidates were admitted to the main examination
subject to the verification of eligibility to avoid delay, the candidates were asked to submit their applications
at the time of interview and therefore, it was not possible to scrutinize their eligibility before calling them for
interview. The Learned Presenting Officer relied upon Scheduled 1(2) (A) of he notification wherein it has
been stated that the candidates who had acquired their educational qualification, that is, Degree on or
before 20.11.2000 will only by held eligible for the main examination. She argued that as per the
Commissions instructions to candidates it was made clear that the eligibility of the candidates will be verified
at any stage of the examination and the candidature of non-eligible candidates will be cancelled at any
stage of the examination and accordingly at the time of interview the claims regarding educational
qualifications were verified. It was found at the time of interview that the applicant has acquired his Degree
from the Yeshwantrao Chavan Open University on 20.12.2000, that is after due date. Referring to the
judgment of this Tribunal in O.A 382/1998 filed by Shri. S.K. Burud, she argued that this Tribunal has held
that the Commission has to decide eligibility of the candidates only with reference eligibility of the
candidates only with reference to the last date. She also referred to the fact in Ashok Kumar Sharma Vs.
Chander Shekher 1993 Supp(2) SCC 611, the Supreme Court has reversed its earlier decision in 1997 in
Ashok Kumar Sharma Vs. Chandra Shekher 1997(4) SCC 18 and thus taking this into consideration this
Tribunal has dismissed the Original Application 382/1998 on merit. Reacting to this, the learned advocate
for the applicant argued that the said judgment of the Supreme Court is not applicable to the present facts of
the case and in the OA No. 382/1998 the issue was cut-off date regarding experience as qualification and
not the educational qualification. He also tried to distinguish the case decided by the Supreme Court on the
ground that in that case the candidate had acquired educational qualification after the main examination, but
before the interview, whereas in the present case the applicant has acquired the educational qualification
before the main examination.
5.
It is not under dispute that the on the cut-off date prescribed in the notification regarding main
examination which was published on 30th October 2000 it was clearly mentioned that only those candidates
who had acquired their Degree on or before 20th November 2000 will be held eligible for the main
examination, for is it under dispute that the applicant had acquired his Degree on 20th December 2000, that
is, after the due date mentioned in the notification. The argument by the learned Counsel for the applicant
that the date of main examination should have been fixed as the cut-off date as was done in the previous
examinations. He also argued that as the date of examination was postponed, the cut-off date should also
have been postponed. Both these arguments do not stand close scrutiny. In writ petition No. 4928 of 1998
decide by the Aurangabad Bench of the Bombay High Court it was contended that as the date for submitting
the application form for handicapped persons was extended till 30th November 1998 the cut-off date for
eligibility should be taken into consideration as 30th November 1998 and not the date prescribed in the
advertisement. This contention was rejected and the High Court observed as follows.
" In our view, this submission is required to be rejected, mainly
on the ground that on the date prescribed in the advertisement, cannot
be permitted to apply for the post on the ground that the procedure
prescribed for holding the interview or the examination is delayed
because of stay orders. Further, a fresh cut off date cannot be
prescribed by this Court. The date prescribed in the advertisement as
the cut-off date is required to be taken into consideration for finding out
whether the candidate was eligible to be considered for the appointment
on the relevant date. If he was not eligible, then there is no question of
considering him for the said post. In any case, the delay in holding the
examination or the interview, because of the stay orders granted by the
Courts would hardly be a ground for re-advertisement, or extending the
cut off date prescribed in the advertisement, so as to make other
persons, who have obtained the prescribed qualifications after the said
date, eligible."
In the absence of any rule regarding the fixing of cut-off date, it is open to the MPSC to fix such
date taking into consideration the prevailing circumstances at the time. It cannot be said that only the date
on which the main examination is held should be prescribed as the cut-off date just because it was done in
1996. Further, the mere fact that the main examination was postponed cannot be a ground for postponing
the cut-off date interview of the above observations of the Bombay High Court. The crucial date is the date
prescribed in the advertisement. In Ashok Kumar Sharma Vs. Chander Shekhar (1997) 4 SCC 18, the Apex
Court observed as follows.
"Where applications are called for prescribing a particular date as the
last date for filling the applications, the eligibility of the candidates shall
have to be judged with reference to that date and that date alone. A
person who acquires the prescribed qualification subsequent to such
prescribed date cannot be considered at all. An advertisement or
notification issued/published calling for applications constitutes a
representation to the public and the authority issuing it is bound by such
a representation. It cannot act contrary to it. The reasoning in the
majority opinion that by allowing the 33 respondents to appear for the
interview, the recruiting authority was able to get the best talent
available and that such course was in furtherance of public interest is,
an impermissible justification. The minority opinion in the 1993decision
in Ashok Kumar Sharma's case 1993 Supp (2) SCC 611 that the 33
respondents, who were not qualified on the date of submission of the
application but had acquired the requisite qualification before the date of
interview, could not have been allowed to appear for interview was
right".
6.
In view of these observations the reliance placed by the applicant's learned advocate on the earlier
judgment of the Apex Court is of no relevance. The case cited by him Chottu Ram Vs. State of Haryana
2000 SCC (L&S) 916 is also of no help. In that case the cut-off date had been prescribed under the Rules
and it was held that in a situation where a person takes an exam before cut-off date and the result is
declared after the cut-off date, the person must be considered to be eligible with reference to the date of the
examination if the examination had been conducted before the cut-off date. In that case, however, the
Supreme Court was dealing with the case where an officer already working in PWD had appeared for AMIE
and a clarification had been issued about the cut-off date prescribed in the rules. In the present case, the
main examination has been notified by the MPSC and the cut-off date has been prescribed by the
notification. We therefore, hold that the ratio in the case of Ashok Kumar Sharm cited alove will be
applicable in this case, rejecting the argument of the learned advocate for the applicant that the said case is
distinguishable. A on the cut-off date prescribed, the applicant was not eligible, his claim deserves to be
rejected. The circular dated 02.12.1980 relied on by the learned advocate for the applicant is not relevant
for this case. The circumstances under which the applicant eligibility would not be verified at the time of his
admission in the main examination have been adequately explained by the respondents.
7.
In the light of the above, the applicant deserves to be rejected. We, accordingly, reject the
application. No orders as to costs.
***
RAJASTHAN HIGH COURT
JODHPUR BENCH
S.B.Civil W.P.No.2740/1998
D.D. 9.11.2002
Hon'ble Dr.Justice B.S.Chauhan
Hari Singh – Petitioner
Vs.
Rajasthan P.S.C. – Respondent
The question here is whether the Degree of Acharya is equivalent to Degree of Master of Arts
prescribed for the post of lecturer in the department of Collegiate Education. The petitioner who possesses
Acharya Degree is held to be ineligible for the post. The High Court in view of the decision of the Supreme
Court has held that Acharya Degree is equivalent to M.A. Degree and accordingly, allowed the writ petition
and directed the Public Service Commission to consider the candidature of the petitioner for the post.
Case referred:
1976 (3) SCC 282 Rampalit, Vyakaran Acharya Vs. Punjab University
ORDER
The instant writ petition has been filed for quashing the order dated 17.7.98 (Annexure 4), by which
the respondent – Commission has found the petitioner ineligible for the post of Lecturer in the Department of
Collegiate Education as per the advertisement No.5/1997-98 (Annexure 3).
The facts and circumstances giving rise to this case are that the petitioner possesses the
qualification of Master of Arts/Acharya (Sahitiya) as he passed the said course in 1997 from Jai Narain Vyas
University, Jodhpur in First Division. But he has been found ineligible by the respondent – Commission for
the reason that it was not a Master's Degree. Being aggrieved, the petitioner has filed the instant writ
petition.
Heard Mr. Manoj Bhandari, learned counsel for the petitioner and Mr. J.P.Joshi, learned counsel
for the respondent – Commission.
Mr. Bhandari has pointed out that the petitioner possesses the requisite qualification and it is
evident from the Degree awarded by Jai Narain Vyas University, Jodhpur, that the Degree of Achary is a
Degree of Master of Arts. Thus, it cannot be said by the respondent – Commission that the petitioner does
not possess the requisite qualification of Post Graduation. Mr. J.P.Joshi, learned counsel for the respondent
– Commission has submitted that the submissions made on behalf of the petitioner are untenable and
unsustainable for the reason that he has not adduced any document showing that the Degree of Acharya
(Sahitya) possessed by him was equivalent to the Degree of Post Graduation and, therefore, the petition is
liable to be rejected only on the ground of non-eligibility of the petitioner.
I have considered the rival submissions made by the learned counsel for the parties and perused
the record.
The submission made by the respondent – Commission is pre-posterous only for the reason that
the Degree of Acharya possessed by the petitioner itself shows that he possesses the Degree of Post
Graduation as the Degree provides that the petitioner is awarded the Degree of Acharya (Master of Arts) in
First Division and he secured 69.77% marks in the examination held in 1997. This view is further fortified by
the judgment of the Hon'ble Supreme Court in Rampalit, Vyakaran Acharya Verus Punjab University,
Chandigarh and others, 1976 (3) SCC 282, wherein the Apex Court has categorically held that "Acharya
Degree is equivalent to Master of Arts as was evident from the letter dated 23.1.1964 from the Government
of India, Ministry of Education to the Education Secretaries of All the State Governments/Union Territories,
Government/ Administration and Registrars of all the Universities on the subject of Equivalence of Sanskrit
Examination." The Hon'ble Apex Court has further observed that "the aforesaid letter was passed as the
Government was very much keen regarding development of Sanskrit in the country and it has impressed
upon all the Universities that they should employ atleast one Traditional Sanskit Scholar.
Thus, in view of the above, the petition succeeds and is allowed. The impugned order dated
17.7.98 (Annexure 4) is hereby quashed. Petitioner's candidature has been considered by the respondent –
Commission in view of the interim order of this Court and one post has been kept vacant. The respondent –
Commission is directed to declare the result of the petitioner and consider his candidature strictly in
accordance with law.
***
S.B. CIVIL WRIT PETITION NO. 2804/2002
D.D. 3.12.2002
Hon'ble Mr. Justice Praksh Tatia
Man Singh – Petitioner
Versus
The State of Rajasthan & Ors. - Respondents
Recruitment to the post of Motor Vehicle Sub-Inspectors
Petitioner was not selected because he was not possessing requisite qualification namely, heavy
motor vehicle driving licence though declared to have passed in the examination. The petitioner contended
that he should have been permitted to produce the driving licence before the date of start of interview.
Held – The qualifications are to be seen as on the date of advertisement and not on the date of
interview. Further held – Wrong judgement passed in favour of one person does not entitle others to claim
the same benefits. Writ petition was dismissed
Cases referred:
1. 1997 (4) SCC 18 Ashok Kumar Sharma & Ors. Vs. Chander Shekhar & Anr.
2. 2000 (V) SCC Page 262 Bhupendrapal Singh & Ors. Vs. State of Punjab & Ors.
3. (2000) 9 SCC 94 State of Bihar vs. Kameshwar Prasad Singh
ORDER
Heard learned counsel for the parties.
2.
The petitioner has challenged the action of the respondents by which the petitioner's candidature
for the post of Motor Vehicle Sub-Inspector was rejected by the Rajasthan Public Service Commission (for
short 'the RPSC') order dated 21.06.2002. Brief facts of the case are that the petitioner in pursuance of the
advertisement dated 01.10.2001 published on15.10.2001applied for the selection to the post of Motor
Vehicles Sub-Inspector. The petitioner took the examination and was declared passed in that examination
but on 21.06.2002 the petitioner was informed by the RPSC that after declared of the result it was found that
he was not eligible on the ground that he was not possessing requisite qualification having Heavy Motor
Vehicle Driving Licence.
3.
According to the learned counsel for the petitioner the action of the respondents is contrary to law.
It is submitted that the petitioner is being discriminated. The persons who yet appeared in final year
examination are permitted to produce their certificates till at the time of interview whereas it is denied in the
matter of driving licence. According to the learned counsel for the petitioner as per the law laid down by the
Hon'ble Supreme Court, eligibility is to be seen as on the date of interview and not as on the date of
advertisement.
4.
The learned counsel for the petitioner also submits that this Court in S.B. Civil Writ Petition No.
4742/2002 issued notice for final disposal to the respondent and granted interim ex parte order and
permitted the candidate to appear in the interview and in another writ Petition No. 2234/2002 passed an
order to keep one post vacant for the petitioner of that case. The learned counsel for the petitioner relied
upon the judgment rendered in the case of Vishnu Traders Vs. State of Haryana and Ors., reported in 1995
Supp(1) SCC 461 wherein the Hon'ble Apex Court held that there is a need for consistency of approach
and uniformity in the exercise of judicial discretion respecting similar cases and the desirability to eliminate
occasions for grievances of discriminatory treatment requires that all similar matters should receive similar
treatment except where factual differences require a different treatment. Therefore, learned counsel for
the petitioner submits that the writ petition of the petitioner deserves to be given same treatment of keeping
it pending and same interim order be passed.
5.
Learned counsel for the respondent submits on merits that the matter is squarely covered by the
various judgments of the Hon'ble Apex Court. One of which is case of Bhupendrapal Singh and Ors. Vs.
State of Punjab and Ors. reported in 2000(V) SCC page 262, wherein the Hon'ble Apex Court held that if
cut of date is laid down in the relevant rules for qualification it has to be followed otherwise it may be
prescribed in advertisement, and if no such date is prescribed, eligibility has to be determined as on the last
date of receipt of applications. The Hon'ble Apex Court held that State of Punjab was following prompt
practice of determining eligibility conditions as on the last date of interview, the practice was directed to be
discontinued.
6.
Before proceeding to examine the legal effect of the judgment relied upon by the learned counsel
for the petitioner delivered in the case of Vishnu Traders Vs. State of Haryana and others (1995 Supp(1)
SCC 461), it will be relevant to refer the facts of the present case.
7.
The present writ petition was filed on 07.08.2002 and was listed in this Court on 09.08.2002.
Adjournment was sought by the petitioner, therefore, the case was listed in Court on 19.08.2002. Again on
request, it was adjourned to 21.08.2002 but before different Bench on last two occasions. On 21.08.2002,
brother justice Shri. S.K. Garg passed the order to issue notice to the respondent for writ petition as well as
of the stay petition. At this stage it was not pointed out that this Court has already issued notice of final
disposal in SBC Writ Petition No. 2234/2002 and passed the interim order keeping one post vacant.
Therefore, the order dated 21.08.2002 was passed by the Court in presence of the petitioner and at that
time, no request was made to pass a similar order nor the above order dated 11.07.2002 was placed before
the Court on 21.08.2002. When the court has issued notice to show cause to the respondents then the
respondents have every right to show cause why the writ petition may not be admitted or interim order may
not be granted, otherwise the very purpose of order dated 21.08.2002 will frustrate. The learned counsel for
the respondents again relied upon the order of this Bench delivered in S.B. Civil Writ Petition No. 4742/2002
wherein also this Court issued notice for final disposal and granted and interim order after recording the plea
raised by the petitioner who was present in person on 29.11.2002. On 29.11.2002, it was not pointed out by
the petitioner in S.B. Civil Writ petition No. 2802/2002, another Bench has not passed any interim order. It
appears that when different advocates appear or the petitioner appears in person in an identical matter, they
may not have knowledge of the interim order passed by the Courts and that may be a bonafide reason for
not pointing out the earlier orders. Here in all cases, it is clear that the earlier orders were not placed before
the Bench who passed the different orders.
8.
In the light of the above facts, we have to examine the legal position as understood by the learned
counsel for the petitioner is correct or not. First of all the Hon'ble Apex Court was seized of the matter
wherein the grievance of the petitioner was that condition for grant of stay vary widely from Bench to Bench
in the High Court and that while in an earlier writ petition and the connected cases, a Division Bench had
ordered unconditional stay on 17.06.1993 and continued the same order on 07.09.1993 but, in the case
before the Hon'ble Supreme Court, the Bench of the High Court imposed a condition of payment of 25% of
the demand. The Hon'ble the Apex Court, after considering the facts of the case observed as under:"In the matters of interlocutory orders, principle of binding precedents
cannot be said to apply. However, the need for consistency of
approach and uniformity in the exercise of judicial discretion respecting
similar causes and the desirability to eliminate occasions for grievances
of discriminatory treatment requires that all similar matters should
receive similar treatment except where factual differences require a
different treatment so that there is assurance of consistency, uniformity,
predictability and certainty of judicial approach".
9.
A bare perusal of the above decision of the Hon'ble Apex Court, it is clear that Hon'ble the Apex
Court specifically held that in the matter of interlocutory orders, principle of binding precedents cannot be
said to apply but, thereafter, held that there must be similarity in the orders provided the facts are same.
Therefore, the Hon'ble Supreme Court has not held that even in the matter where there occurs differences
of facts even then similar orders are required to be passed.
10.
It may result into great hardship to the litigants also if the court looking to the facts of the case and
having sufficient time to serve upon notice the respondent, refuses to pass interim order so that other party
may also be heard without causing any hardship to the petitioner but on this ground alone, that in earlier
petition, no stay order was granted, in another petition stay sought when the threat is imminent without there
being any change in the fact of the case except to approaching of the petitioner of subsequent petition late
in court with all the sufficient reasons available to the petitioner. In this circumstance, if the court refuses
to pass the interim order for which the court was satisfied even on earlier occasion but has not passed the
interim order looking to the circumstances in which the petitioners came before the court without there being
any change in "fact of the case".
11.
Even requirement of rule of procedure is that to pass similar order even there is a distinction here
in this case. The earlier cases were cases in which and interim orders were passed and the writs were kept
pending and the writ petitions have not been admitted by the court. Here in this case, the circumstances
and the fact have changed in view of the reason that after notice, the respondents have put in appearance,
filed their replies. The petitioner has also submitted his rejoinder and the case is matured for hearing for
admission which may result into, either admission of the writ petition or rejection of the writ petition and in
case the court thinks proper to admit the writ petition, the court may pass interim order or may refuse the
interim relief after satisfying with the arguments of the respondents. None of the above facts were available
in any other case referred by the learned counsel for the petitioner. Issuing notice for final disposal in any
petition, cannot preclude the court from deciding finally another petition in which the pleadings are complete
and the purpose of issuing notice has already been served with the appearance of the respondents with
their defences. It is also in the interest of justice to settle the dispute as early as possible so that similarly
situated persons may know their position in law and may not remain in illusion or dream of getting same
relief or the respondents may not proceed on a wrong assumption of denying the relief to the legitimate
person. It is desirable to settle the controversy as early as possible finally rather than to keep it pending and
thereby inviting unnecessary litigations. The finality of the order also permits the aggrieved party to
challenge the order by filling appeal which is also in the interest of justice and shorten the time of litigation.
Therefore, the request of the learned counsel for the petitioner that even when the pleadings are complete,
this Court should only pass an interim order of stay and refuse to take cognizance of the order passed on
21.08.2002 of issuing notice to the respondent to show cause notice with respect to the pleading taken by
the petitioner, cannot be accepted. It is further clear that the stage has changed substantially in the present
writ petition from the stage which was available in earlier writ petition in which the interim order were
passed. Therefore, there is no force in the submission of the learned counsel for the petitioner to keep the
writ petition pending and pass the interim order in favour of the petitioner by ignoring all the pleadings raised
by the respondents.
12.
On merits, the learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme
Court delivered in the case of Ashok Kumar Sharma and another Vs. Chander Shekher and another and
connected matter reported in 1993 Supp (2) SCC 611, wherein the Hon'ble Apex Court held that "In order to
have wider selection, it was in public interest to entertain applications of the candidates who did not possess
requisite educational qualification on the date of application but possessed it on the date of interview". The
learned counsel for the respondents pointed out that the said judgment was reviewed by the Hon'ble Apex
Court and the Hon'ble Apex Court held that the view taken in the above judgment is unsustainable and
amounted to clear error of law apparent on the face of record. This review judgment is reported in 1997(4)
SCC 18. Therefore, the controversy is settled by the Hon'ble Supreme Court that the qualification are to be
seen as on the date of advertisement and not to the date of interview. Hence there is no force in the
submission of the petitioner on this point.
13.
The learned counsel for the petitioner vehemently submitted that the entire process of selection
itself deserves to be quashed on the ground that the respondents permitted production of the educational
qualification certificates till the date of start of interview but denied for production of driving licence. The
argument is of two folds; one is that the petitioner is also entitled for the same treatment and should have
been permitted to produce the driving licence before the date of start of interview and secondly, in case this
relief cannot be granted to the petitioner then in view of the judgment of Hon'ble Supreme Court delivered in
the case of Ashok Kumar Sharma and others Vs. Chander Shekhar and another (1997) 4 SCC 18, fixing a
subsequent date for submitting the educational qualification certificate by the candidate from the date of
advertisement makes the entire process of selection illegal.
14.
It is settled law that a person taking chance of selection in the process of selection and failing in
that, cannot be permitted to challenge the process of selection itself, therefore, the contention of the learned
counsel for the petitioner deserves to be rejected only on the this ground. It is also further clear that Hon'ble
the Apex Court in the case of state of Bihar Vs. Kameshwar Prasad Singh reported in (2000) 9 SCC 94
observed that:
"When any authority is shown to have committed any illegality or
irregularity, in favour o f any individual or group of individuals, others
cannot claim the same illegality or irregularity on the ground of denial
thereof to them".
15.
Not only this, but the Hon'ble Apex Court further observed that "wrong judgment passed in favour
of one person does not entitle others to claim the same benefits". When the petitioner is not entitled to
challenge the process of selection, this Court need not to decide whether the permission granted to the
persons to submit their educational qualification certificates till the date of interview is valid or not.
16.
Therefore, there is no force in the writ petition and the same is hereby dismissed.
***
S.B. Civil Writ petition No. 4914/2002
D.D. 19.2.2003
Hon'ble Mr. Justice Prakash Tatia
Mahendra Choudhary & Ors. – Petitioners
Versus
State and Others – Respondents
Recruitment to the post of Transport Sub Inspector
One of the conditions of notification is that qualification certificates in original should be produced
on the date of interview. The question is whether candidates who have passed in the examination and who
undisputedly possess the prescribed qualification if fail to produce the qualification certificates on the date of
interview, whether their candidature is liable to be cancelled? - NO
Held – View taken above finds support if it is examined from another angle. The term "shall be
rejected" is a term in terrorem against the candidates so that the candidates strictly comply with condition of
submitting documents in time and if the selectors decide to cancel candidature of the defaulting candidates,
the candidates may have notice of consequence of their default. In the light of above reasoning, conclusion
is that the words "shall be rejected" used indicate permissive power of the selectors, either to reject the
candidature of the defaulting candidate or may grant further time to all defaulting candidates to submit the
documents. These permissive powers of the selectors do not give corresponding right to the defaulting
candidates to compel the selectors to extend the time fixed for submitting the certificates.
Case referred:
1. AIR 1992 Raj. 20 Miss Neeta Midha Vs. Gramothan Teachers Training School Sangaria & Ors.
ORDER
1.
Heard learned counsel for the parties.
2.
The petitioners submitted their candidature for appointment to the post of Transport Sub-
Inspector in pursuance of advertisement dated 15.10.01 issued by RPSC, Rajasthan Public Service
Commission, (for short as "RPSC"). Petitioners submitted that all the petitioners are eligible candidates and
they were declared successful in written examination. Petitioners were also called for interview by the
RPSC. The petitioners appeared in the said interview conducted by RPSC. As required by Rule 17(2) of
Rajasthan Transport Subordinate Service Rules, 1963 (hereinafter referred to as "Rules of 1963"), and
required by interview letter, the candidates were required to produce their original certificates at the time of
interview failing which the candidate could not have been permitted to face the interview and his candidature
is required to be rejected by the RPSC. The RPSC instead of rejecting the candidature of candidates, who
did not produce the original documents at the time of the interview, included the names of those defaulting
candidates in the select list and declared those candidates provisionally selected for the said post.
According to learned counsel for the petitioners, in the advertisement issued on 15.10.01 itself, the eligibility
and other requirements have been given. In sub-clause (4) of condition no. 13, it is mentioned that all the
candidates should furnish the requisite certificates of eligibility with respect to qualifications before the
interview. Sub-clause (2) of R.17 also provides that candidates are required to submit the applications and
that should be complete in all respects and should be in accordance with instructions issued by RPSC. It is
also provided n sub-clause (2) of R.17 the candidate is required to ensure himself/herself that he/she fulfills
all the conditions regarding age, educational qualifications, experience, number of chance, if any etc., as
provided in the rules and if the candidate is allowed to take examination it shall not entitle the candidate to
take presumption of eligibility. It is provided that Commission shall scrutinize the applications of such
candidates only who qualify inn the written examination and shall call only the eligible candidates to vivavoce test, if any. Sub-clause (3) of R.17 of the said Rules provides that decision of the Commission in
respect of admission of a candidate to an examination, eligibility and consequent admission to viva-voce, if
any, shall be final. Therefore, according to learned counsel for the petitioners, the Commission had left with
no option but to reject the candidature of those candidates who failed to produce the documents on or
before the date of interview.
3.
It is also submitted by learned counsel for the petitioners that RPSC unequivocally again in the
interview call letters issued to the candidates very clearly mentioned that, in case candidates will not come
with original certificates, their candidature shall be rejected and will not be permitted to appear for viva-voce
test. Emphasis was further given in the interview call letter itself by giving note in block, that candidates
should com with all the certificates otherwise they will be declared ineligible, therefore, according to learned
counsel for the petitioners, in these circumstances, action of RPSC permitting them to furnish the original
certificates subsequent to the date of interview is illegal. It is also submitted that RPSC had no jurisdiction
to declare the result as provisional result or declare a candidate selected provisionally. If such candidature
of these candidates is rejected, the petitioners who are ranking below those candidates will get selection on
the post. According to learned counsel for the petitioners, as per rule 17(2) of the rules of 1963, the
candidate is supposed to not only posses the eligibility for the post on the last date fixed for submitting the
application but is also supposed to have relevant certificate in his possession, failing which he cannot be
treated as a eligible candidate. Therefore, the petitioners prayed that the result declared by the RPSC by
including the names of those candidates who did not produced original documents at the time of interview
be quashed and RPSC be directed to declare result of the candidates who produced the original documents
at the time of interview and if petitioners names find place in select list, their names be recommended for
appointment to the post.
4.
Learned counsel for the respondent RPSC did not dispute, rather admitted, that the candidate
must fulfill the eligibility on the last fixed for submitting application form but seriously contested the
contention of the learned counsel for the petitioner regarding effect of not submitting certificates by the
candidate at the time of the interview and submitted that possession of relevant certificate at the time of
submitting the application form or at the time of interview has noting to do with eligibility of the candidate.
Non production of those certificates is only a default of the candidate and on the basis this default of the
candidate, the RPSC has a right in itself to cancel candidature of the candidate. The RPSC has not
considered any candidate who did not possess the requisite qualification on the last date of submission of
application. The RPSC, as per rule 2, is required to obtain the applications from the candidates and in case
incomplete application is received, it can be rejected at initial stage. Even the RPSC has been given power
to scrutinize the application of the candidates later on and can call only eligible candidates to viva-voce test.
The requirement of producing certificates in original and copies whereof itself is not the eligibility of
candidate but they are the proof of eligibility of candidate. If it is mentioned in the interview letter that
candidature of candidate shall be rejected if he fails to produce the original certificate at the time of
interview, then this is nothing but permissive power of RPSC to cancel the candidature of defaulting
candidate and not the mandatory condition against the RPSC. It is also submitted that as provided in subclause (kh) of condition no.1 of the interview letter, it is clear that requirement of production of certificate by
the candidates may entail the candidate for rejection of candidature at the discretion of Commission. But
there is no bar against the RPSC in permitting candidates to produce original certificates later on. Further
opportunity to produce original certificates was given to all those candidates who could not produce the
original certificate at the time of interview. The RPSC thereby only gave chance to produce certificate to the
candidates who are more meritorious than the petitioners and this is not in violation of any rule rather by this
permission only meritorious candidates will not be selected. It is also submitted by learned counsel for the
respondents that writ petition of the petitioners deserves to be dismissed as the petitioners have not
impleaded the candidates who were selected in the interview and were placed in provisional select list.
5.
I have considered the rival submission. So far as the contention of the learned counsel for the
petitioners that RPSC under the Rule of 1963 is required to cancel the candidature of the candidate who
failed to produce the original certificates at the time of interview is concerned, it is devoid of any force as
there is no rule which mandates RPSC to cancel the candidature of defaulting candidates leaving no
discretion with the RPSC to take decision on default of candidate. There is no rule which prohibits RPSC
from giving further time for production of certificates of eligibility. In fact, Sub Rule (ii) of Rule 4 read with
Sub Clause (d) of Sub Rule (1) of Rule 4 makes the distinction clear between "Qualifications" and
"establishing candidate's eligibility". So far as qualifications of the candidates who are declared provisionally
pass, there is no dispute even by the learned counsel for the petitioners. As per Rule 4 (i) (d), RPSC is
required to give notice to the candidates with respect of what steps are required to be taken by the
candidates to establish their eligibility. Sub Rule (ii) of Rules of 1963 empowers RPSC to give further
instructions, in addition to the instructions given in the Sub-Rule (i), including with respect to instruction for
steps to be taken by the candidates to establish their eligibility. Therefore, the submission of the learned
counsel for the petitioners is just contrary to the learned counsel for the petitioners is just contrary to the Sub
Rule (ii) of Rule 4 of the Rules of 1963.
6.
It appears that petitioners are under an impression that the requirement of production of
original certificates at the time of interview is one of the conditions of eligibility of a candidate for selection to
the post of Transport Sub-Inspector. Under this impression, learned counsel for the petitioners relied upon
the judgment of the Supreme Court delivered in the cases of Bhupindra Pal Singh and ors. Vs. State of
Punjab and Ors. Reported in 2000(5) SCC, 262 and the Judgment delivered in the case of Ashok kumar
Sharma and Anr. Vs. Chandra Shekhar and ors. Reported in 1993 Supp. (2) SCC, 611 and the judgment
and order passed in review petition filed in the case of Ashok Kumar Sharma's case by the Hon'ble
Supreme Court, reported in 1997(4) SCC, 18 and the judgment of this Court (by me) delivered in the case
of SBCW Pet. No. 2804/02(Man Singh Vs. State) decided on 03.12.02 wherein it has been held that
eligibility of candidate has to be determined as on the last date fixed for receipt of application for selection to
the post. So far as the legal position that candidate must possess the requisite qualification and eligibility on
the last date fixed for submitting the application form, law is well settled and the learned counsel for the
respondents is not disputing it. It is submitted by learned counsel for respondent that the respondents has
not considered and declared pass any of the candidates who did not possess the requisite eligibility on the
said last date. It is also clear from the submission of learned counsel for petitioners that even it is not the
case of petitioners that any of the candidates, who was not possessing the requisite qualification on the last
date fixed for submitting application has been declared passed by the respondent.
Therefore, the
Judgments cited by learned counsel for the petitioner have no application to the facts of this case.
7.
Next question is whether time fixed for submitting documents in this case completely debars
selector from giving time to the candidates from submitting the required documents after the date fixed for
the interview? Or, it is permissive power of the selector which empowers the selectors to cancel the
candidature of the defaulting candidate? In my opinion, object of fixing time limit for submitting the relevant
documents at the time of interview is not for securing rejection of the candidature of the eligible candidate on
technical ground. The eligibility criteria are the paramount consideration for selection of candidates, which
is required to be fulfilled by the candidates. When merit of candidates is pitted against the technicalities of
law by which lesser meritorious candidates want to exclude the meritorious candidates, then merit is
required to be preferred against the technicalities of law so that if meritorious candidate himself has not
incurred disqualification or created a situation, by which he becomes disentitled for said selection, then such
meritorious candidate must get opportunity of appointment. The mandatory requirement in the process of
selection is the eligibility of the candidate which cannot be compromised. The petitioners are not disputing
the eligibility of the provisionally selected candidates but submit that the candidates who did not submit their
original certificates at the time of the interview became ineligible. For selection of a meritorious candidate
from amongst eligible candidates, the eligible candidates are required to pass through process of selection.
Each selection processes has its known procedure which ensures a fair treatment to all eligible candidates.
In this process of
selection candidates are required to discharge
their obligations, in which one of the obligation is to do the things in time frame program so that process of
selection may be completed in time. Therefore, to complete the selection process in time, a time bound
program is given by the selectors by fixing date, by which the candidate may submit application form,
deposit requisite fees, may submit documents etc. Therefore, mere mentioning at various places, that in the
case of non-production of original certificates at the time of the interview, the candidature of candidate shall
be rejected, appears to be a "permissive" power given to selectors to cancel the candidature of the
defaulting candidate and not a mandate against the selector that the selector shall have no option to extend
the time for submitting the documents for the candidates and the selector is bound to reject the candidature
of the defaulting candidates.
Learned counsel for the respondent rightly relied upon the judgment of
Hon'ble Apex Court delivered in the case of State of M.P. Vs. Azad Bharat Finance Co. and anr. reported in
AIR 19676 SC 276, wherein, while interpreting the statutory provisions containing the word "shall", the
Supreme Court observed that 'shall' does not always mean that the provision is obligatory and not
permissive. While interpreting the words 'liable to confiscation' with prefix "shall" as available in Sec.11 of
the Opium Act, Hon'ble Apex Court held that this is permissive power and authority is permitted to take
action and not obligatory for the authority to necessarily take the action.
8.
View taken above finds support if it is examined from another angle. The term "shall be
rejected" is a term in terrorem against the candidates so that the candidates strictly comply with condition of
submitting documents in time and if the selectors decide to cancel candidature of the defaulting candidates,
the candidates may have notice of consequence of their default. In the light of above reasoning, conclusion
is that the words "shall be rejected" used indicate permissive power of the selectors, either to reject the
candidature of the defaulting candidate or may grant further time to all defaulting candidates to submit the
documents. These permissive power of the selectors do not give corresponding right to the defaulting
candidates to compel the selectors to extend the time fixed for submitting the certificates.
9.
The Division Bench in the judgment delivered in the case of Miss Neeta Midha Vs. Gramothan
Teachers Training School, Sangaria and Ors. reported in AIR 1992 Raj. 20 held that petitioner-appellant,
after passing her Higher Secondary Examination, applied for taking up Basic Teachers Training course.
She alleged that she filled up her form in time and submitted it before 13.08.1990, which was the last date
for that purpose, but she submitted her Bona fide Resident certificate on 07.09.90 i.e., after the last date for
declaration of result on the basis of merit, which was 31.08.90. She was not given admission. The Division
Bench held that mistake had been committed by the petitioner. In spite of the specific instructions that her
bona fide certificate should be submitted with the Form, she failed to submit it before even the finalization of
the result. On these facts, the Division Bench held that petitioner is not entitled for any relief. That was the
case where the candidate who himself/herself committed mistake of not producing the relevant documents
at the relevant time and still wanted to challenge the action of respondents by which his/her candidature was
rejected whereas the facts of this case are just reverse. Here, in present case, the selector has decided to
permit the candidates to produce the certificates afterwards and defaulting candidates are not seeking
direction against the respondents that the RPSC be directed to extend the time limit fixed for filing the
certificates. Therefore, the above judgment also does not help the petitioners. It is further relevant to
mention here that incase it is held that in view of the condition mentioned in interview call letter, the time
fixed for submitting documents cannot be extended then it will only give chance to less meritorious
candidate in place of meritorious candidates, which will be unjust and will also be against larger public
interest.
10.
Next contention of the learned counsel for the petitioners is that provisional declaration of
result of the candidates is illegal on the ground that there is no provision in the Rules under which result can
be declared provisionally. The contention of the petitioners deserves to be rejected only on the ground that
no prejudice has been caused to the petitioners merely because of provisional declaration of the result by
the RPSC. Further more, Rule 17(2) of the Rules of 1963 specifically provides for grant of provisional
permission to the candidates to appear in the examination. The interview letter itself, on the basis of which
even the petitioners faced the interview, very clearly provides that this is a provisional interview. Holding of
provisional interview is also not provided in the Rules but petitioners accepted call letters for provisional
interview and appeared in interview without any objection because it suits the petitioners. Learned counsel
for the petitioners could not satisfy this court that if the grant of further time to the defaulting candidates to
produce the relevant certificates is not found wrong then how the petitioners have locus standi to challenge
the provisional declaration of the result by the respondent No. 2 RPSC? Learned counsel for the
respondents was very much right when he says that rule cannot cover each and every contingency and
there may be certain blank spaces, which could be filled up by selectors and until & unless the action itself is
so unreasonable and affects the merit of selection and permits selection of ineligibles candidates or give
arbitrary favour to someone, it cannot be challenged. Thus, giving one more chance to the all defaulting
candidates to produce original certificate in this case, by no stretch of imagination, ca be condemned.
11.
Therefore, in view of above, present writ petition has no force and is hereby dismissed.
***
GAUHATI HIGH COURT
W.P.(C)582/1999 & W.P.(C)607/1999
D.D. 27.4.2000
Hon'ble Mr. Justice M.L.Singhal
Shri Nachiketa Dutta – Petitioner
Vs.
The State of Tripura & Others – Respondents
1) Whether qualification prescribed possessed by the selected candidates is recognized qualification?
YES
2) Whether PSC has violated the ceiling of 12.5% marks fixed for interview/Viva-voce fixed by
Supreme Court?
No
Recruitment to the posts of 25 posts of Medical Officer (Homoeo) under the Health and Family
Welfare Department of State of Tripura – Though the selected candidates (respondents) did not possess the
qualification specified in the advertisement High Court found the same to be equivalent qualification –
Hence rejected the contention of the petitioners that selected candidate did not possess the required
qualification. Regarding allegation of violation of ceiling of 12.5% marks for the Viva-voce examination fixed
by the Supreme Court in AIR 1987 SC 454 the High Court has held that the same is applicable only in those
cases where the selection is based both on written examination and viva-voce and not to those cases where
the selection is based on viva voce alone and dismissed the writ petition.
JUDGEMENT AND ORDER
I have heard Mr. BB Deb, learned senior counsel for the petitioner in W.P.(C) No.582/99 and Mr.
Talapatra, learned counsel for the petitioners in W.P.(C) No.607/99. Also heard Mr. BR Bhattacharjee
learned Advocate General for the respondents in
W.P(C) No.582/99 and Mr. S Deb, learned senior
counsel for the respondents in both the cases.
2.
Since the two writ petitioners involves common question of facts and law, hence, they are disposed
of together.
3.
The Tripura state Public Service Commission (herein after referred to as ‘Commission’) on the
requisition sent by the state government on 22-05-98 issued an advertisement for recruitment of 25 posts of
Medical Officers (Homoeo) under the Health and Family welfare Department of State of Tripura. The last
date fixed receipt of the application was 23-06-98 for the said selection. The petitioners, respondents along
with other applicants participated in the selection and the result was declared on 15 th October 1999. The
petitioners have not been found successful and the respondents have been selected. The challenge of the
petitioners is that the respondents did not have the requisite qualification for the post and as such their
selection is illegal and contrary to service rules, that is one of questions for determination in the present two
writ petitions. Further, in writ petition No.607/99 the grievance of the petitioner is that as repeatedly laid
down by the Hon’ble Supreme Court not more than 12 ½ % marks in the viva-voce can be fixed, the
direction has been violated by the commission and as such the whole selection process is vitiated and
illegal.
4.
According to the petitioners under the recruitment services rules vide Notification No.1(1) HFP/73
dated 12th January, 1978, in force the essential qualification is an under.:“ 7. B.M.S. (Homeo) D.H.M., D.H.S, D.M.S.(Homoeopathy)
,BMBS, or MHMS or GHMS degree (Agra) or MBS(Hom) degree
(calcatta) or equivalent.”
The respondents did not possess any of the aforesaid degree/diplomas, on the other hand, possessed
diploma DHMS (Diploma in Homoeopathic Medicine and surgery), which was not recognized by the central
council of Homoeopathy. Before the last date i.e., on 23-06-98 fixed for receipt of the application forms,
under section 13 of the Homoeopathy central council 1973(herein after referred to as the council Act 1973)
the said diploma had not been recognized, but subsequently has been recognized vide Notification dated
21st December, 1998. The diploma of the respondents not being recognized, the respondents were not
eligible to participate in the selection and as such their selection was illegal. It is settled law that the eligibility
/essential qualifications of a participant in a certain selection has to be determined with reference to the last
date fixed for receipt of the application for selection (Vide 1995 Supp(4) S.C.C. 706 Harpal Kaur Chahal
(Smt) Vs. Director Punjab Instructions Punjab and others , 1994(2) SLR SC 59 U.P Public Service
Commission Vs. Alpana 1993(1) SLR SC 544 Mrs. Rekha Chaturvedi Vs. University of Rajasthan and
others and Mills Dougals Michael Vs. Union of India , AIR 1996 S.C. 1905)
5.
“Recognised medical qualification “ means any of the medical qualifications in Homoeopathy,
included in the second or the third schedule (vide Section 2(g) of the Council Act 1973). It is nor in dispute
that the respondents have passed the diploma (DHMS) which was not mentioned in the second or the third
schedule of the Council Act, 1973 before 21st December 1998, But the respondents degree DHMS has been
included in Second schedule to the act by amendment notified in official Gazette dated 21st December 1998.
In the remark column, it is mentioned “from 1990 onwards”. The effect is that the respondents‘ diploma
DHMS stands recognized from the year 1990 onwards. Much argument has been advanced by the learned
counsel for the petitioners that since section 13 of the Council Act, 1973 is not still in force in Tripura, any
amendment in the second and third schedule of the council act, 1973 would not confer any right on the
respondent. About the argument of the learned counsel for the petitioners. It may be observed that section
13 of the council act 1973 only lays down the procedure for recognition of medical qualification granted by
certain Medical Institutions in India.
6. Section 13 of the Council Act 1973 reads as follows:“13. Recognition of medical qualifications granted by certain medical institutions in
India.- (1) The medical qualifications granted by any university, Board or other medical
institution in India which ate included in the Second Schedule shall be recognized medical
qualifications for the purposes of this Act.
2. Any university, Board or other medical institutions in India which grants a medical
qualifications not included in the second schedule may apply to the central government to
have any such qualification recognized and the central council, may, by not notification in
the official gazette, amend the second scheduled so as to include such qualification there in
and any such notification may also direct that an entry shall be made in the last column of
the second schedule against such medical qualifications only when granted after a
specified date.’
7.
Sub-Sections 1 of section 13lays down that the medical qualification granted by any university
Board or other medical institutions in India which are included in the second schedule shall be recognised
medical qualifications. Sub- Section 2 of the act enables University Board or other medical institutions in
India. Which grants medical qualification not included in the second schedule to apply to the central
government for reorganization of the said qualification and the central government after consultation with the
Homoeopathy central council may amend the second schedule and include the said qualification therein. If
section 13 of the council Act was not in force in the state of Tripura its only affect is that Medical Institutions,
Board etc., in the state of Tripura could not apply for the recognition of the degree /diploma granted by them
under section 13 of the Act. The Words used in sub-Section 2are “any University” Board or other Medical
Institutions in India” the section 13 does not put embargo on the right of university Board or other Medical
Institution situates in other states for taking the steps for recognition of the degree and inclusion thereof in
the second schedule of the Act. So, the argument of the learned counsel for the petitioner that since section
13 of the Act was not in force in the state of Tripura, subsequent inclusion of the degree/diploma in the
second schedule of the Act on the initiative of any university, Board or other Medical institution situates out
the state of Tripura would not ensure for the benefit of the selection to be held in the state of Tripura has no
force.
8.
The present case is not such where respondents did not possess the essential qualification viz.
degree/diploma before the impugned selection. As transpired during the course of argument, the
respondent’s diploma was recognized before the screening test and viva-voce test were conducted by the
Commission on the basis of which the result was declared. Even advertisement issued by the Commission
provides for degree/diploma in Homoeopathy science from any recognised Institution in India. At the time of
argument, learned Advocate General urged that the impugned selection was made on the basis of draft
service rules, in which essential qualification contemplated is “degree/diploma in Homoeopathy science from
any recognized Institutions in India.” No such averment was made earlier even in the counter affidavit filed
on behalf of the state-respondent. A controversy was raised whether the draft rules could be enforced in the
presence of existing recruitment rules. The learned Advocate General argued that the earlier existing rules
relied upon by the petitioners relate to non-gazetted post, while the impugned selection is for gazetted post,
which has been controverted by the learned counsel appearing for the petitioners. In view of the finding
recorded above that the respondents did possess the essential qualification for the impugned selection it is
not necessary to enter into the controversy whether the present selection was on the basis of the draft rules.
9.
Mr. S Talapatra, learned counsel appearing for the petitioners argued that in the present selection
the ceiling of 12 ½% marks for the viva-voce fixed by the Hon’ble Supreme Court has been violated. The
learned counsel relied on decision of the Hon’ble Supreme court in Ashok Kumar yadav and others Vs State
of Haryana and others AIR 1987 S.C. 454 and of Gujarat High court in L.V. Ashra Vs Gujarat Public Service
Commission Ahamedabad and another, 1985(2) SLR 83 As has been stated by the Commission in counter
affidavit, in the present selection short listing of the candidate was done, as 322 eligible candidates had
applied and it was not possible for the commission to take interview all the applicants. The screening test
was done and on the basis of which 79 candidates were called for interview. The selection was based
entirely on viva-voce. Such a short listing /screening test is permissible where the number of applicants is
large, as in the present case. The ceiling of 12 ½ % marks for the viva-voce examination is based both on
written examination and viva-voce and not to those cases where the selection is based on viva-voce alone.
The present selection, therefore, can not be said to be in violation of the ceiling of 12 ½ % marks for
interview fixed by the Hon’ble Supreme Court and can not be said to be legal.
10.
In the result both the writ petition Nos. W.P. ( C) 582/99 and W.P. ( C) 607/99 have no force and
are here by dismissed costs on parties.
***
Writ Appeal No.52/2001
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 triputa & Ors. – Responents
Qualification/experience prescribed for the post – Whether fulfilled by the selected candidate?
Yes
Recruitment to 29 posts of Panchayat Officers in Panchayat Department, Government of Tripura –
Qualification prescribed:- (i) Degree of a recognized University (ii) Training in Rural Development and
extension service – PSC prepared a list of 92 candidates out of 942 applicants who fulfilled the qualification
– As the P.S.C. entertained doubt as to the experience claimed by the 92 candidates sent the list to the
Government for clarification – Government said that 90 candidates satisfy the experience prescribed –PSC
selected 9 candidates after interview - Some unsuccessful candidate filed Writ Petition alleging that
selected candidate did not fulfill the qualification and experience – Single Judge holding that Government
relaxed the qualification which was impermissible quashed the list. In Appeal the Division Bench set aside
the order of Single Judge and held that the selected candidates fulfill the qualification.
Held – 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 was not proper or the selected candidates do not fulfill the
required qualification.
Case referred:AIR 1986 SC 1043 Omprakash Shukla v. Akhilesh Kumar Shukla
JUDGMENT .
These groups of appeals are directed against the common judgement and order passed by the
learned single Judge on 12.4.2001 in civil Rule N0.137/197 and Civil Rule N0.478/1998. Since in these
appeals common question of facts and law are involved, we propose to dispose of all these appeals by this
common Judgement and order.
2.
In these appeals, appellants were selected by the Tripura Public Service Commission, here in after
referred to as ' Commission', for appointment as 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 panchayat Department vide No. F.1. (11-11) –ESTT/PR/87/8413-48 dated 27.11.93. 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 Panchayet 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(1111)-ESTT/PR/87/13527 dated 26.12.96 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 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 Members of the
Commission, the Director of Panchayath 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 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 Panchayat 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 panchayath 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, tow writ petitioners namely Shri Sankar Chowhan and Shri
Hemkanti Nath filed tow 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 of 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 single 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 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, H.K, Bhattacharjee, learned representing one
appellant as well as Mr, U.B.Shah, 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 petitions are devoid of merit and is appeals should be allowed.
6.
Mr. M.K. Bhowmik, learned senior Counsel appearing on behalf of the Petitioner respondents
defended the judgement 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 these 90candidates fulfilled the requisite qualification prescribed in the Recruitment Rules. The matter has been
clarified by the Government and the Govt. 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 be mentioned here that two petitioners who have filled writ petition were
amongst the ninety candidates whose cases were also considered by Govt. and found to be eligible for 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 they failed in the interview.
8.
The qualification prescribed for the post of panchayat officer is(1) 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
Government should be taken as conclusive. We donot find anything that so far training in rural development
and extension service is concerned, a candidate must have a degree/a diploma in Rural development and
extension service.
9.
We have examined ninety application 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 in sealed cover. On perusal of the 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 "Vishwa Bharathi" and Gopal Ch. Majumder who appeared in the interview, but failed to
get selection for the post has diploma in social work (Social welfare) from Calcutta 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 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 petitioners as
well as contesting successful candidates, appellants herein, were 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 themselves 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 filled 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 interview is not palatable to him, he cannot turn down and subsequently content 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 ver/Akilesh Kumar Shukla, AIR 1986 SC 1043, the
Apex Court has clearly laid down the law by a Bench of three learned Judge 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 nor can the writ petitioner successfully urged before
us that they were given a l marks though their performance was better. They also cannot challenge the
qualification of the selected candidates as the qualification of the 90 candidates have 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 which amongst others
consisted of the Chairman and the Member 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 or 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 petitioners respondent that the selected candidates do not fulfill the requisite qualification. It
appears that the Commission had initial some doubt 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 those candidates are not eligible to complete 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 candidate. A part 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 Panchayath 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. 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 substance. We have also examined the merit list
prepared by the Commission produced Mr. Deb on behalf of the Commission and we find no illegality 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 interview 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 24-01-1997. 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.
***
WEST BENGAL ADMINISTRATIVE TRIBUNAL
O.A.No.3516/98
D.D.14.2.2000
The Hon'ble Chairman Sri. N.K.Batabyal
The Hon'ble Member (A) Sri. K.M.Mandal
Subrata Sen - Applicant
Vs.
State of W.B. & Ors. - Respondents
Not eligible for selection if experience stipulated falls short even by a few days
In this case besides educational qualification minimum 3 years experience in Inspection work or
teaching in School was prescribed for the post of District Inspector/Additional District Inspector of Schools.
The applicant claiming to have the requisite qualification and experience applied along with Certificates in
support of qualification and experience. The applicant was selected and included in the select list. On
verification of certificates, it was found that the Experience Certificates were not acceptable as the period of
experience gained by the applicant fell short by the prescribed experience. His candidature was cancelled
and his name was removed from the select list. Aggrieved by that the applicant approached the West
Bengal Administrative Tribunal.
The Tribunal held – when experience is one of the qualifications prescribed for the post the
candidate has to satisfy that he has the prescribed experience for the period stipulated. If the experience of
the candidate falls short of the stipulated period even by a few days he is not eligible for selection.
Consequently, his application has been dismissed.
The order of the Tribunal has been confirmed by both Calcutta High Court and Supreme Court.
The High Court has dismissed the Writ Petition No.110/2000 filed by the applicant as per order dated
4.8.2000 which order has been affirmed by the Supreme Court by dismissing his SLP No.16193/2000 as per
order dated 9.4.2001.
Cases referred:
1. AIR 1972 Cal. 348 Mahboobur Rahaman –vs-P.S.C., W.B.
2. (1974) 1 S.C.C. 345 Pooran Mal -vs- Director of Inspection
3. AIR 1980 S.C. 1230 CharlesSkaria –vs- C.Mathew
4. AIR 1989 S.C. 134 Mr. M.C.Bindal –vs-U.P., P.S.C.
5. AIR 1991 S.C. 101 Delhi Transport Corpn. –vs- D.T.C.Mazdoor Congress
6. AIR 1992 S.C. 2169 Indian Aluminium co. Ltd. –vs- Karnataka Electricity
7. (1993) 2 S.C.C. 573 Asha Kaul & Ors. –vs- Stateof J & K
8. (1993) 3 S.C.C. 157 N.T.Devinkatti & Ors.-vs- Karnataka P.S.C. & Ors)
9. AIR 1994 S.C. 579 Chancellor –vs- Bijayananda Kar
10. AIR 1994 S.C. 1808 J & K P.S.C. –vs- Dr.Narinder Mohan
11. (1997)4 S.C.C. 18 Ashok Kumar Sharma –vs- Chandra Sekhar
12. (1997) 6 S.C.C. 614 Dr. A.L.Bhatt –vs- Stateof Rajasthan
13. AIR 1997 S.C. 1896 N.Mohanan –vs- State of Kerala
14. AIR 1999 S.C. 1801 Punjab Communications Ltd. –vs- Union of India
15. AIR 1999 S.C. 2326 Commissioner of Police, Delhi –vs- Dhaval Singh
Board
JUDGMENT
The applicant joined as Sub-Inspector of Schools (hereinafter shortened into S.I. of Schools) on
11.4.94 under the Deptt. of Schools) on 11.4.94 under the Deptt. of School Education, Govt. of West
Bengal. He is still working as such. The Public Service Commission, W.B. (hereafter referred to as the
P.S.C.) issued a public advertisement being no.13/96 notifying, inter alia, that eight (8) posts of Dist.
Inspector/Addl. Dist Inspector of Schools (including 3 post reserved for S.C. candidates) would be filled up
by direct recruitment. The essential qualifications were clearly mentioned therein. The applicant allegedly
fulfilled all the eligibility conditions for direct recruitment to the said post and accordingly he applied through
normal channel and his application was forwarded to the P.S.C. The applicant in a hurry to submit the
prescribed application to the P.S.C. failed to give the particulars of his teaching experience properly. In his
letter dated 20.5.97 (marked Annexure XI to the application) he clarified the details of this teaching
experience and prayed for issue of admit card to sit for the written test whereupon the P.S.C. issued the
admit card on a provisional basis for appearing at the written test on 23.5.97. He accordingly appeared in
the written test. He submitted a further clarification to the P.S.C. in his letter dated 25.6.97 (Annexure XIII to
the application). After the examination, the applicant received a letter dated 3.7.97 from the P.S.C. asking
him to appear on 28.7.97 before the P.S.C. for interview. He appeared at the interview. Subsequently the
P.S.C. provisionally recommended the applicant's name for appointment as Dist. Inspector/Addl. Dist.
Inspector of Schools subject to satisfactory clarification of the matter referred to in Annexure XV to the
application. But upto the date of the filing of this application, no step had been taken by the School
Education Deptt. to issue a letter of appointment appointing him to the post of Dist. Inspector/Addl. Dist.
Inspector of Schools. He had thus been deprived of the appointment to the post and rank for which he has
been selected.
Moreover, the applicant has come to know that two persons who were placed below him in the
merit list of candidates recommended by the P.S.C. have been appointed to the post of Dist. Inspector/Addl.
Dist. Inspector of Schools ignoring the claim the applicant. Hence, he has filed the present application
praying for the following reliefs:
(a) Orders commanding the respondents to produce before this Hon'ble Tribunal the Select list
prepared by the P.S.C. which has been forwarded to the Secretary, School Education Deptt. Govt.
of West Bengal for filling up the eight posts of Dist. Inspector/Addl. Dist. Inspector of Schools in
terms of P.S.C. advertisement no.13/96.
(b) Orders directing the Secretary, School Education Deptt. Govt. of W.B. immediately to issue
appointment letters to candidates selected by the P.S.C. strictly in order of merit as specified in the
list;
(c) Orders commanding the respondents not to issue any appointment letter violating the order of
merit indicated in the Select List as prepared by the P.S.C.;
(d) Orders commanding the stay of operation of letters of appointment issued, if any, for the said
posts violating the order of merit in the select list prepared by the P.S.C.;
and other consequential reliefs.
The principal respondent in this case is the respondent no.3 (Public Service Commission, W.B.).
The respondent no.3 has filed a rambling reply to contest the claim of the applicant. All the material
allegations made by the applicant save what are matters of record have been denied by the respondent
No.3. The case of the P.S.C. has been clearly spelt out in paras 3 & 4 of the reply. The P.S.C. cancelled
the provisional selection and provisional recommendation of the applicant after considering the entire matter
in depth in Full Commission's Meeting on 29.6.98 by way of review. They have sought leave to produce the
entire relevant papers at the time of hearing Elaborate reasons were assigned for the cancellation. The
applicant failed to establish his claim regarding teaching experience by producing necessary certificates.
His total experience both as Sub-Inspector of Schools and teacher fall shortof the requisite period of
experience. The applicant tried to cover up his deficiency in this regard by having recourse to certain
methods which were not fair and which misled the P.S.C. The applicant not having come with clean hands
before this Tribunal is not entitled to get any equitable relief. Having failed to produce the necessary
certificates in support of his claim regarding the period of teaching experience in Kendriya Vidyalaya,
Barrackpore, the applicant submitted two so called certificates from two schools which he did not mention in
his application for the post, i.e. one from St. Anne's Day School, Howrah and another from Pursurah High
School, Hooghly long after the last date of receipt of the application for the post. These documents were
introduced to remove the deficiencies which were found in his own application solemnly declared to be true
by himself. These subsequent documents could not be entertained for the purpose of enabling the claim of
the applicant as regards fulfillment of requisite experience. It was established on verification that the
applicant had made a false statement to the P.S.C. in regard to his tenure in Kendriya Vidyalaya with a
motive to make up his shortfall of requisite experience for the post. Having regard to his false statement
and his attempt to cover up his short fall in mandatory experience of three years by producing certificates
subsequently from two other schools, the P.S.C. could not but cancel the provisional selection and the
provisional recommendation of the applicant. If the P.S.C. had accepted the certificates subsequently
produced, then it would be allowing undue favour to a candidate as well as relaxation of the normal principle
that the statements made by a candidate regarding his qualifications and experience in his application for
the post are final. Such relaxation would be impermissible in law and equity.
It has been further stated that the applicant in his application for the post mentioned that he had
teaching experience in the Kendriya Vidyalaya, Barrackpore from 02.-186 to 04.03.86 and that he was
working as S.I. of Schools since 11.4.94 which together accounted for his total experience of 2 years 10
months only i.e. two months short of the advertised requirement of 3 years experience for the post on the
closing date (24.12.96) of receipt of applications He also made a declaration in the said application that the
particulars furnished by him therein were true and correct. Subsequently, he put forward a claim in his letter
dated 20.5.97 that he had worked in the Kendriya Vidyalaya from 2.1.86 to 4.8.86 and not upto 4.3.86 as
stated earlier when asked to produce the certificate in support of his claim, he failed to produce the same.
The claim that he worked in the Kendriya Vidyalaya upto 4.8.86 was subsequently proved to be false on
verification by Govt. This being false, he made another claim in his letter dated 25.6.97 in which he claimed
that he had worked in two (2) other schools, viz. St. Ann's Day School, Howrah and Pursurah High School,
Hooghly from 5.1.88 to 30.6.88 and from 2.1.93 to 24.12.93 respectively and produced certificates from
those schools. He could have mentioned this in his letter dated 20.5.97 in which he made the false claim
regarding the period of his teaching experience in Kendriya Vidyalaya. Considering all these facts, the
P.S.C. decided on 29.6.98 not to accept the certificates produced and to cancel his candidature for the post
as he did not satisfy the requisite experience of 3 years. According to the P.S.C. the application has no
merits and should be dismissed.
The State respondents have also filed a reply denying all the allegations except what are materials
of record. According to the respondents no.1 & 2, the application is not maintainable in law and the
applicant cannot get any relief as he has come with unclean hands. He lacked in essential qualifications for
the job and hence Public Service Commission rejected his candidature. The claim of the applicant that he
served Kendriya Vidyalay, Barrackpore from 2.1.86 to 4.8.86 if a false claim. The school authority have
affirmed that he served the school from 2.1.86 to 4.3.86. The resignation letter dated 11.3.86 submitted by
the applicant to the school authority exposes the false claim of the applicant. The application form
submitted by the applicant on 19.12.96 shows that he made a statement that he worked at Kendriya
Vidyalaya, Barrackpore from 2.1.86 to 4.3.86 on ad hoc basis. Subsequently, he took up the position that
he actually worked there from 2.1.86 to 4.8.86 with the plea that due to typographical reasons "4.8.86"
looked like "4.3.86". This is a white lie. The two other certificates were submitted more than 6 months after
the closing date of receiving applications. The experience of teaching in school as stated in the relevant
recruitment rules and advertisement means experience in full time remunerative employment.
The
Pursurah High School, Hoogly being a non-Govt. aided High School has no authority to appoint any body as
full time voluntary teacher. It is not explained why the applicant despite his knowledge to have possessed 4
years 2 months and 10 days' experience in teaching did not claim so in his application dated 19.12.96. The
explanation that the applicant submitted the application in a hurry does not bear scrutiny. One month's time
elapsed between the publication of the advertisement no.13/96 on 23.11.96 and the last date of submission
of application on 24.12.96 and the applicant submitted his application on 19.12.96. The M.Sc .marks sheet
produced by the applicant does not show that he failed in the last semister. It has been emphatically
asserted that the Deptt. has not done anything which is arbitrary or malicious in giving appointment to the
other candidates in the Select List. According to the respondents no.1 & 2, the application should be
dismissed.
The applicant has filed a lengthy rejoinder against the reply filed by the P.S.C. It has been
asserted that the applicant acquired 3 years' experience in teaching and inspection work. The statements
made in the reply in this connection are incorrect. The applicant has given an explanation to show that the
alleged false statement regarding his teaching experience in Kendriya Vidyalaya, Barrackpore are not
incorrect. He has also explained why he has furnished the teaching experience certificates from two other
schools. The applicant has denied all the material allegations made in the reply against him save what are
matters of record. It has been stated that the P.S.C. has no liberty to eliminate any candidate having the
eligibility in terms of the Recruitment Rules and the advertisement. The applicant reiterates that he made no
mistake and was well within his rights according to the settled law of the land to claim teaching experience
in St. Ann's School and Pursurah High School. The respondents have tried to import something which is not
there in the Recruitment Rules or the Advertisement. The applicant was well within his rights to produce
proof of his teaching experience even after the closing date till the final selection. It has also been stated
that the duty of the P.S.C. ends with the sending of the list of candidates, arranged in order of merit on the
result of the examination, to the appointing authority. The P.S.C. had the liberty to make any enquiry and
obtain any information from the Govt. that may be necessary for the due discharge of their function, but
such reports or information have to be obtained before and not after sending the list. The applicant has in
para 13(viii) at pp.21 of his rejoinder has cited some instances in connection with other advertisements for
employment by the P.S.C. where the candidates were allowed to submit their qualification certificates and
caste certificates afterwards. The applicant has tried to explain how it was possible for him to work in
different schools during the period when he was pursuing his M.Sc. classes at Kalyani University. The
applicant had stood first in the examination and ignoring his claim, the respondents appointed 3 rd and 5th
candidates in the merit list. They unlawfully withheld the appointment of the applicant. The principles of
legitimate expectation are also in his favour. The applicant has submitted that the reply submitted by the
P.S.C. be rejected and the case of the applicant be upheld.
The applicant has also filed a bulky rejoinder against the reply filed by the respondents 1 & 2 (State
respondents). The material allegations made in the reply save what are matters of record have been denied.
It has been stated that he acquired experience in inspection work as S.I. of Schools for a period of 2 years 8
months and 13 days as S.I. of Schools and teaching experience of 1 year 7 months and 22 days upto
24.12.96. Most of the averments made in the rejoinder to the reply of respondent no.3 have been repeated
in this rejoinder. It is stated that the respondent no.1 received the Select List of 8 successful candidates in
order of merit under the Public Service Commission's memo dated 11.11.97 and in that list the name of the
applicant was at the top. The respondent No.1 has requested by the Commission to verify the experience
certificates submitted by the petitioner. The petitioner's teaching experience as claimed by him was
confirmed and the respondent no.1 got the confirmation. So his total period of teaching is 1 year 7 months
and 22 days before 24.12.96. The respondent No.1 could not withheld the appointment of the applicant
either on merit or on legitimate expectation. The respondents no.1 & 3 lost the jurisdiction to review the
select list dated 11.11.97 after respondent no.1 acted on the Select List on 16.6.98 by appointing the 3rd and
5th candidates. The purported review committee meeting of the Commission was held on 29.6.98 after
16.6.98. It is alleged that realizing the gravity of the unlawful step taken by the respondent no.1 in
appointing the 3rd and 5th candidates, the respondents no.1 & 3 acted collusively to reject the
recommendation in favour of the applicant subsequent to 16.6.98. The applicant has prayed that the reply
of the State respondents (respondents no.1 & 2) be rejected and his application should be allowed.
The ld. Advocate for the applicant has argued that the requirement of 3 years' experience in
teaching etc. in school as mentioned in the advertisement shall mean teaching in experience in any school –
Primary, High or Higher Secondary School, Govt. aided or unaided or under private management.
Applications have to be submitted according to the procedure prescribed in the advertisement. Applicants
were required to submit certificates of SC/ST/BC/PH and Ex-servicemen with the application but P.S.C. did
not require submission of experience certificates along with applications.
P.S.C. introduced a new
procedure of submission of experience certificates since May, 1998. But this procedure cannot be made
applicable in respect of advertisement of Dec., '96. The petitioner fully complied with the requirements of
the advertisement. According to the ld. Advocate, further clarification can be lawfully submitted by the
petitioners to the P.S.C. before the date of selection. Further submissions about eligibility criteria before the
date of selection is a procedural matter only. Such a voluntary submission of information and documents
was made through application on 25.6.97 by the applicant and that fully cured all omissions/mistakes in the
application submitted on 19.11.96. In support of his contention, the ld. Advocate has cited
(1) AIR 1999 S.C. 2326 (para 6) Commissioner of Police, Delhi –vs- Dhaval Singh. In this case,
the respondent while seeking post of a Constable during the special recruitment drive is alleged to have
concealed from mentioning in the application form that there was a criminal case against him. Much before
he was acquitted, he conveyed that information voluntarily about the inadvertent mistake. That information
was not taken note of. Held, cancellation of candidature in the case was without application of mind.
The ld. Advocate has further argued that the fact of possessing the qualifications and experience
according to the Recruitment Rules and the terms of the advertisement on or before the prescribed date is
mandatory. But the method of giving proof of possessing such qualifications and experience was not
prescribed in the advertisement of the P.S.C. Even if there was any stipulation in this regard in the
advertisement, that would be directory. If qualifications and experience are proved, either within the
stipulated period or before selection, where there is no stipulated date for submission of certificates, such
proof of experience cannot be rejected by P.S.C. The ld. Advocate, in this connection has cited.
(2) AIR 1980 S.C. 1230 (para 20, 21, 23 & 24 Charles Skaria –vs- C.Mathew. In this case, it was
held, where the post graduate diploma holders were considered and selected for admission to the P.G.
Degree Course in Ophthalmology by giving them benefit of 10 marks as per para 4 of the prospectus on
receipt of information from the University after the last date for application but before the date of selection,
as to their having obtained the diploma before the last date of application in accordance with the Govt.
direction, the selection could not be said to be vitiated merely because the diplomas were not attached with
the application but they were produced before the actual selection.
(3) Ashok Kumar Sharma –vs- Chandra Sekhar (1997) SCC 18. In this case, it was held, where
applications are called for prescribing a particular date as the last date for filing the application, the eligibility
of the candidates shall have to be judged with reference to that date and that date alone. In such a case,
permitting the candidates who did not fulfill that requirement but acquired the requisite qualification later,
though before the date of interview, was impermissible.
(4) Ashok Kumar Sharma –vs- Chandrasekhar, 1993 Supp. (2) S.C. 611. This case was in review
of Ashok Kumar Sharma –vs- Chandrasekhar (1993) Supp. (2) S.C.C. 611. Held, the decision in (1993)
Supp.(2) S.C.C. 611 was not correct.
(5) J & K P.S.C. –vs- Dr. Narinder Mohan (AIR 1994 S.C. 1808). In this case, it was held, when
the Rules prescribe direct recruitment, every eligible candidate is entitled to be considered and recruitment
by open advertisement, which is one of the well adopted modes of recruitment. Inviting applications for
recruitment to fill in notified vacancies is consistent with the right to apply for by qualified and eligible
persons and consideration of the claim to an office or post under the state is a guaranteed right given under
Arts. 14 & 16 of the Constitution.
The petitioner submitted one certificate along with the application and two other certificates
subsequently, P.S.C. in other cases accepted such belated certificates (vide Annexures RJ1, RJ2, RJ3 and
RJ4 of Rejoinder to reply by P.S.C.
The ld. Advocate has further submitted that though his client was given provisional admit card, but
the interview was neither provisional nor conditional. In the instant case, an enquiry report was called for
about the genuineness of the certificates of the petitioner after the selection process came to an end when
P.S.C. lost jurisdiction over the exercise and became functus officio. The P.S.C. had no jurisdiction to
question such report or to review its own earlier Selection List. It is for the Govt. either to accept or reject
the Select List or to refer back the entire matter to the P.S.C. for fresh recommendation. In support of his
contention, the ld. Advocate has cited AIR 1994 S.C. 1808 (J&K P.S.C. –vs- Narinder Mohan) (supra).
6) Delhi Transport Corpn. –vs- D.T.C. Mazdoor Congress (AIR 1991 S.C. 101). In this case, a
permanent employee was removed from service without assigning any reason. In that context, it was held,
that right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of
individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy.
7) Indian Aluminium Co. Ltd. –vs- Karnataka Electricity Board (AIR 1992 S.C. 2169). In this case,
it was held that in deciding the question of legislation competence, one must bear in mind that the
Constitution is not to be construed with a narrow or pedantic approach and it is not to be construed as a
mere law but as a machinery by which laws are made. Such interpretation must be made broadly and
liberally. The entries in the Constitution only demarcate the legislative fields of the respective Legislature
and do not confer legislative power.
8) It has been further argued by the ld. Advocate for the applicant that P.S.C. allowed the petitioner
to submit experience certificates by 30.6.97 and thereby assured the petitioner that if his eligibility was
established, he should be considered like other candidates in like situations. On 25.6.97, the applicant filed
two other certificates. Thereafter, he was allowed to appear before the interview board and his name was
selected at the top of the Select List and the Govt. was advised to obtain certain clarifications from the
applicant and to obtain reports on the genuineness of the experience certificates submitted by the applicant.
This created a legitimate expectation that if the clarification was satisfactory and the certificates were found
to be genuine then the applicant would get an appointment. The ld. Advocate has relied upon AIR 1994
S.C. 988 (paras 27, 28, 29 & 31). In this case it has been held "Time is a three fold present : the present as
we experience it, the past as a present memory and future as a present expectation. For legal purposes,
the expectation cannot be the same as anticipation. It is not different from a wish, a desire or a hope nor
can it amount to a claim or demand on the ground or a hope nor can it amount to a claim or demand on the
ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently
one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a
mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation
cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is
founded on the sanction of law or custom or an established procedure followed in regular and natural
sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably
legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and
therefore it does not amount to a right in the conventional sense."
9) AIR 1999 S.C. 1801 – Punjab Communications Ltd. –vs- Union of India. It has been held in this
case – "The doctrine of legitimate expectation in the substantive sense has been accepted as part of our law
and that the decision maker can normally be compelled to give effect to his representation in regard to the
expectation based on previous practice or past conduct unless some overriding public interest comes in the
way.
The change in policy can defeat a substantive legitimate expectation if it can be justified on
Wednesbury reasonableness. The decision maker has the choice in the balancing of the pros and cons
relevant to the change in policy. It is, therefore, clear that the choice of the policy is for the decision maker
and not for the Court. The legitimate substantive expectation merely permits the Court to find out if the
change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one
which no reasonable person could have made."
10) The petitioner has annexed some documents, viz. RJ1, RJ2, RJ3, RJ4 etc. in the rejoinder to
reply of the P.S.C. and it has been criticized by the other side as to how the applicant could get such
document. It has been submitted by the ld. Advocate for the applicant that after appointment were given on
these applicants, these documents ceased to be confidential. According to the ld. Advocate, the settled law
on this is that source is not important and there is no obligation to disclose the source. What is important is
whether the documents and information produced are relevant and genuine. The ld. Advocate has, in
support, cited AIR 1973 S.C. 157 – R.M.Malkani –vs- State of Maharashtra. In this case it has been held –
"There is warrant in proposition that even if evidence is legally obtained it is admissible. Over a century ago
it was said in an English case where a constable searched the appellant illegally and found a quantity of
offending article in his pocket then it would be a dangerous obstacle to the administration of justice if it was
held, because evidence was obtained by illegal means, it could not be used against a party charged with an
offence. See Jones v. Owen (1870) 34 J.P. 759. The Judicial Committee is Kuruma, Son of Kanju v.
R.1955 ACT 197 dealt with the conviction of an accused of being in unlawful possession of ammunition
which had been discovered in consequence of a search of his person by a police officer below the rank of
those who were permitted to make such searches. The Judicial Committee held that the evidence was
rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained.
There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a
criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is
the golden rule in criminal jurisprudence."
11) Pooran Mal –vs- Director of Inspection (1974) 1 S.C.C. 345 (paras 24 & 25) – "It would thus be
seen that in India, s in England, where the test of admissibility of evidence lies in relevancy, unless there is
an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of
illegal search or seizure is not liable to be shut out."
12) The ld. Advocate for the applicant has submitted that the respondents have legal defence to
resist the claim of the applicant who has clearly established his right to get the reliefs as claimed.
The ld. Advocate for the respondent no.3 (P.S.C.) has submitted that the decision of the
Commission in withdrawing the candidature and cancellation of recommendation was not invalid. In support
of his contention, the ld. Advocate has cited Mr. M.C.Bindal –vs- U.P., P.S.C. AIR 1989 S.C. 134 (Para 12)
– "In the instant case, the advertisement for the post was made at the instance of the U.P. Public Service
Commission and the requisite qualification for the post had been specified in the advertisement. It is,
therefore, essential that a candidate in order to be considered for appointment for the said post must have to
comply with the requisite qualification namely the educational qualification as well as the experience in drug
testing etc. for a period of five years. If any of these essential qualifications is lacking then the candidate
cannot claim to be appointed in the said post. Under Art. 320(3)(1) and (b), it is the duty of Public Service
Commission to consider and to get itself satisfied as to which of the candidates has fulfilled the required
qualifications specified in the advertisement. The Commission in this particular case has duly got verified
the certificates of the candidate in regard to his experience and after considering his report as well as the
certificates came to the conclusion that the candidate though fulfilled educational qualifications lacked in the
requisite experience. The Commission, therefore, revised its earlier decision and withdrew the candidature
and also cancelled its recommendation earlier given.
Held that, the decision of the Commission in withdrawing the candidature and cancellation of
recommendation was not invalid. It is the constitutional requirement envisaged in Art.320 of the Constitution
that the Commission will have to perform the duty of recommending the candidate fulfilling all the requisite
qualifications for the post to the Government for being considered for appointment to the post concerned."
13) It has been further submitted that when a selection is made by an expert body like the P.S.C.
which is also advised by experts having technical experience in the field for which the selection is to be
made, the Courts should be slow in interfering with the opinion expressed by experts unless allegations of
malafide are made established. The ld. Advocate has relied upon Secretary, Health Deptt. Etc. –vs- Dr.
Anita Puri & ors., (1196) 6 S.C.C. 282 (Para9). He has further submitted that mere inclusion in the select list
does not confer upon the candidate included therein to an indefeasible right to appointment. [Asha Kaul &
others –vs- State of J & K (1993) 2 S.C.C. 573 (Para 8)]. In this case it has been held –"Mere inclusion in
the select list does not confer upon the candidates included therein an indefeasible right to appointment but
that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The
whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select
a particular number of candidates for a particular category, - in pursuance of which the Commission issues a
notification, holds a written test, conducts int4erviews, prepares a select list and then communicates to the
Government – the Government cannot quietly and without good and valid reasons nullify the whole exercise
and tell the candidates when they complain that they have no legal right to appointment. No Government
can adopt such a stand with any justification today."
14) It has also been submitted by him that whether a candidate fulfils the requisite qualification or
not is a matter which should be entirely left to the decision of academic bodies or the Selection Committee
which invariably consists of experts. (Chancellor –vs- Bijayandna Kar, AIR 1994 S.C. 579). In this case it
has been held – "Further, the decisions of the academic authorities should not ordinarily, be interfered with
by the Courts. Whether a candidate fulfils the requisite qualifications or not is a matter which should be
entirely left to be decided by the academic bodies and concerned selection committees which invariably
consist of experts on the subjects relevant to the selection."
15) It has been held by the Apex Court that the eligibility of the candidates for selection for a post
depends upon whether he is qualified in accordance with the relevant rules as they existed at the date of the
advertisement for recruitment. (N.T.Devinkatti & others –vs- Karnataka P.S.C. & Ors. (1090) 3 S.C.C. 157).
It has been held in this case – "A candidate on making application for a post pursuant to an advertisement
does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance
with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being
considered for selection in accordance with the rules as they existed on the date of advertisement. He
cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless
the amended rules are retrospective in nature. (Para 11)
Where advertisement is issued inviting applications for direct recruitment to a category of post, and
the advertisement expressly states that selection shall be made accordance with the existing rules or
government orders, and if it further indicates the extent of reservations in favour of various categories, the
selection of candidates in such a case must be made in accordance with the then existing rules and
government orders. Where proceedings are initiated for selection by issuing advertisement, the selection
should normally be regulated by the then existing rules and government orders and any amendment of the
rules or the government order pending the selection should not affect the validity of the selection made by
the selecting authority or the Public Service Commission unless the amended Rules or the amended
government orders, issued in exercise of its statutory power either by express provision or by necessary
intendment indicate that amended Rules shall be applicable to the pending selections."
The ld. Advocate has further submitted that the candidature of the applicant for the post of
D.I./Addl. D.I. of schools was cancelled in accordance with law and hence the application should be
dismissed.
The ld. Advocate for the State respondents has also supported the contention of the ld. Advocate
for the P.S.C.
The main controversy in this case is whether this Tribunal should interfere with the decision of the
P.S.C. for canceling the candidature of the applicant. The essential qualifications required for the post of
D.I./Addl. D.I. in terms of the Recruitment Rule as well as of the advertisement are (a) 2nd Class Master's
Degree or equivalent (b) Degree in Teaching or equivalent (c) Three years' experience in inspection work or
teaching in school, (d) Ability to undertake tour (e) Familiarity with modern outlook and method of school
inspection, (f) Capacity for planning and organization and (g) Good power of expression in Bengali. Here is
our case, the only controversy is whether the applicant fulfilled the requirement at (c) above. In the
application form submitted on 19.12.96, the experience is described as (1) Sub-Inspector of Schools, Amta
East Circle, Horwah from 11.4.94 to the date of application (19.12.96) and (2) Trained Graduate Teacher
(Biology), Kendriya Vidyala, Barrackpore from 2.1.86 to 4.3.86. The total period is (1) 2 yrs. 8 months 13
days plus (2) 2 months 2 days which is equal to 2 yrs. 10 months 15 days. So prima facie, the requisite
qualification was lacking. According to Recruitment Rules (vide Annexure V to the application) the essential
requisite at B(iii) is 3 years' experience of inspection work or in teaching in school. The contention of the ld.
Advocate for the applicant is that he was allowed in writing by the Secretary, P.S.C. time till 30.6.97 to
submit his experience certificates within the stipulated date. According to the ld. Advocates of the
respondents, he cannot submit the certificates beyond 24.12.96. It appears from the advertisement
(Annexure VI to the application) that it was not stipulated therein that the experience certificate would have
to be submitted along with the application unlike the SC/ST certificates. So it is clear that there was no legal
bar in submitting the certificates after 24.12.96, but before the date of selection. Written test was held on
23.5.97. On 20.5.97, petitioner submitted an application to the Secretary, P.S.C. stating his inability to
produce corrected certificate of teaching experience from Kendriya Vidyalaya from 2.1.86 to 4.8.86. The
applicant resiled from the claim as it was beyond his power to establish his claim. He also submitted with
the application dated 25.6.97, two other certificates of teaching experience from 5.1.88 to 30.6.88 from St.
Ann's Day School, Howrah and for the period from 2.1.93 to 24.12.93 from Pursurah High School, Hooghly
a non-Govt. aided High School. According to the ld. Advocate for the applicant, if these two certificates are
taken into consideration then the applicant had the requisite experience on 24.12.96. The P.S.C. has
refused to take these two certificates into consideration for reasons already discussed above.
Before we go into the questions of law raised on this pointed by the ld. Lawyers of the contending
sides, we like to highlight certain facts having a bearing on this point. As per the advertisement, "where
experience of number of years is prescribed as an item of qualification, this would mean duly experience
gained in full time employment." (Emphasis added). As per Pursurah High School letter dt. 2.1.98
(Annexure III to the application) the job was 'full-time voluntary'. 'Employment' means, as per P.R.Aiyar's
Law Lexicon, 1997 Edition at page 631, "The act of employing; The state of being employed; Business;
Calling; Commission; Occupation; Office; Profession; Service; Vacation; That which engages the heard or
hands; Object of Industry; Appointment; Engagement."
The same expression according to Oxford Advanced Learner's Dictionary of Current English, (5th
Edition), 1996, page 378 means, "1(a) the action of employing some body: The expansion of the factory will
mean the employment of sixty extra workers. (b) the state of being employed : be in/out of regular
employment. 2. Work, esp. in return for regular payment; give employment to somebody, find employment.
The government is aiming at full employment (i.e. job for everyone)."
According to Chamber's 20th Century Dictionary (Revised Edition), page 346, employment means
"Act of employing; that which engages or occupies; occupation."
According to Holmes J, in Great Northern Rly. –vs- Sunburst Oil (287 U.S. 358, 1932), "A word is
not a crystal, transparent and unchanged, it is the skin of the living thought and may vary greatly in colour
and contend according to the circumstances and time in which it is used."
A word takes its colour and meaning in the context of the time and the circumstances of its use. In
the present case, the word has been used in a recruitment advertisement to indicate the qualification of the
candidates at the time of the closing date for submission of applications. In this context, 'full-time work as a
profession as distinguished from a voluntary work. The word 'employment' in the advertisement in the
particular context means a professional employment and not a voluntary one.
But voluntary work is not employment in the present context. The element of trade or profession is
missing in voluntary work.
Therefore, voluntary full-time teaching cannot be accepted as full-time
employment in this particular situation.
If the Pursurah certificate goes out of consideration then the only other certificate besides the
Kendriya Vidyalaya certificate is the certificate issued by St. Ann's Day School. This certificate has failed to
inspire the confidence of the Commission. We are not judging the correctness of the decision of the
Commission as an appellate forum. We are to see whether the Commission took the decision in a manner
what is legal, unsullied by any arbitrariness or mala fide conduct.
It has been held in Mahboobur Rahaman –vs- P.S.C., W.B. (AIR 1972 Cal.348) that it is
undoubtedly true that the P.S. Commission has got its independent jurisdiction and in exercising its
jurisdiction or deciding matters left to its individual judgment, the Commission is not answerable to any one
including the High Court. But the Commission should not have though that it had been invested with powers
to act arbitrarily or that it was above the law in any manner. If the Commission fails to act bonafide or if acts
arbitrarily, the High Court possesses ample powers to make the Commission amend. In N. Mohanan –vsState of Kerala (AIR 1997 S.C. 1896) it has been held that mere inclusion of name in the list of selected
candidates does not confer any right to get appointment. From these decisions it is clear that if the P.S.C.
has acted within the proper jurisdiction then this Tribunal will not interfere with their decision. At the same
time, it is to be noted that the applicant has no right to get appointment simply because his name appears in
the Select List. It is equally true that the Govt. cannot arbitrarily refuse to deny employment if his name
appears in the Select List recommended by the P.S.C.
Now let us come to the decisions cited by the ld. Advocate for the applicant in support of his
contention one by one. In Commissioner of Police-vs- Dhaval Singh (supra), the candidate concealed the
fact of the pending criminal case against him when he had a duty to disclose. He did disclose voluntarily
before he was acquitted. But in our case, the applicant has not concealed anything. He has tried to add to
the information already disclosed by him in his application. So our case stands on a different footing.
In Churles Skeria's case (supra), there was a stipulation in the prospectus that a certificate of the
diploma should be attached with the application for admission. It was held, that stipulation was not
mandatory but directory. In our case, there was no stipulation to attach the experience certificate with the
application form. So the ratio in the cited case is not applicable here.
In Ashok Kumar Sharma's case (review case) (supra) it was held that in a case where the
advertisement inviting applications with the required qualification to be possessed on the date of application,
it was not permissible to a candidate who acquired the required qualification later to appear for interview. In
our case, the stand of the applicant is that he acquired the qualification before the cut-off date but did not
disclose the information in his application. So the facts of our case are completely different.
In J & K Public Service Commission –vs- Dr. Narinder Mohan (supra) it was held that the selection
has to be made by the P.S.C. and the Govt. has to fill up posts by appointing those selected and
recommended by the Commission adhering to the order of merit in the list of candidates sent by the P.S.C.
The selection by a Commission is only a recommendation of the Commission and the final authority for
appointment is the Govt. The Govt. cannot appoint a person whose name is not in the Selection List but it is
open to the Govt. to decide how many appointments will be made. The process of selection and selection
for the purpose of recruitment against existing or anticipated vacancies does not create a right to be
appointed to the post by a mandamus. In our case, the name of the applicant was included, at first
provisionally, in the Select List and then the name was deleted. So in the final list, the applicant was not
included. Dr. Narinder Mohan's case is not authority for the proposition that even if the name of the
applicant is sent in a provisional list, then also Govt. must give him appointment.
In Delhi Transport Corporation's case (supra) it was held that a permanent employee cannot be
removed from service without assigning any reason and without holding an enquiry. This case has nothing
to do with our case.
Indian Aluminium Co. Ltd. –vs- Karnataka Electricity Board (supra) has nothing to do with our case.
In Union of India –vs- Hindustan Development Corpn. (supra), the doctrine of legitimate
expectation has been dealt with. The principles laid down here are of universal application. Hence,
applicable in our case also.
In Punjab Communication Ltd. Case (supra), it has been laid down that the doctrine of legitimate
expectation in the substantive sense has been accepted as part of our law and the decision maker can
normally be compelled to give effect to the representation in regard to the expectation based on previous
practice or past conduct unless some over riding public interest comes in the way. This principle is also of
universal application and is hence relevant for our purpose.
In R.M.Malkani's case (supra), it has been held that there is warrant for the proposition that even if
evidence is illegally obtained, it is admissible. But that question arose in a criminal case. However, the
broad proposition is limited by a condition that such evidence would not work unfairly against the accused.
In our case, the question has cropped up in connection with the improper way in which confidential papers
of the P.S.C. have been Xeroxed and filed in this case by the applicant. It is not a case of criminal offence.
It is a case of improper conduct. So, the relevant papers cannot be blacked out.
In Pooran Mal's case (supra), the same principle has been reiterated in the following language.
"It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in
relevancy, unless there is an express or necessarily implied prohibition in Constitution or other law evidence
obtained as a result of alleged search or seizure is not liable to be shut out."
Let us now come to the cases cited by the ld. Advocate for the P.S.C. The first case cited by him is
Dr. M.C.Bindal –vs- R.C.Singh (AIR 1989 S.C. 134). In this case U.P., P.S.D. advertised for a post and the
requisite qualification had been specified in the advertisement. The decision laid down that it is essential
that a candidate in order to be considered for appointment must have to comply with the requisite
qualification, namely, the educational qualification as well as the experience qualification for a period of five
years. If any of these essential qualifications are lacking then the candidate cannot claim to be appointed.
This case has a great bearing upon the points in issue before this Tribunal. In our case, the P.S.C. has after
giving provisional green signal to the applicant later reviewed its decision on the ground that the applicant
was lacking in essential qualification at the material time. This decision of the P.S.C. is under challenge in
our case. If the decision of the P.S.C. can withstand the challenge, then the ratio of this case will decide the
fate of the application.
The next case cited in Asha Kaul –vs- State of J & K (1993) 2 S.C.C. 573. In this case, it has been
held that though mere inclusion in the Select List does not confer upon the candidates included in the list an
indefeasible right to appointment but that is only one aspect of the matter. The other aspect is the obligation
of the Govt. to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition to the
Commission for selection of candidates for a particular category, the Govt. cannot without good and valid
reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right
to appointment. This case also has a great relevance for our case because if the decision of the P.S.C. is
found to be untenable then the Govt. without good and valid reason cannot deny appointment to the
applicant.
In the case of Chancellor –vs-Bijoyananda Kar (AIR 1994 S.C. 579) it was held that the decisions
of the academic authorities should not ordinarily be interfered with by the Courts. This decision is not
relevant for our purpose as the P.S.C. is not an academic body.
In N.C.Devin Katti –vs- Karnataka P.S.C. (supra), it has held when selection process is initiated by
issuing advertisement inviting applications, selection normally should be regulated by the rule or order there
prevailing. He cannot be deprived of any right to be considered for appointment if found eligible, by an
amendment of rules during the pendency of selection unless the amendment rules are retrospective in
nature. The ratio laid down in this case is not relevant for our purpose.
In the case of Dr. A.L.Bhatt –vs- State of Rajasthan (1997) 6 S.C.C. 614, it has been held that it is
permissible to fix the last date for receipt of applications as the cut-off date but it is not obligatory to fix this
as the only cut-off date. Held, fixing a cut-off date for determining the maximum or minimum age prescribed
for a post is in the discretion of the rule making authority or the employer. One must accept that such a cut-
off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in
all conceivable cases. As soon as a cut-of date is fixed there will be some persons who all on the right side
of the cut-off date and some on the wrong side. That cannot make the cut-off date per se arbitrary unless
the cut-off date is so wide off the mark as to make it wholly unreasonable. Fixing an independent cut-off
date makes for certainty in determining the maximum age. Unless the date is grossly unreasonable, the
court would be reluctant to strike down such a cut-off date.
It appears that this case can be distinguished on facts from our case and hence the ratio laid down
in this case cannot be applied in our case.
We now revert to the central question with the bearing of the relevant decisions thereon as
discussed above. We have it that one essential qualification was three years' experience in inspection work
or in teaching in school. In the application form, the applicant disclosed his experience qualification which
fall short of 3 years by roughly one and a half months. He later before final selection tried to introduce some
certificates to make up the deficiency. We have already discussed above that the certificate issued by
Pursurah High School cannot be considered at all. The other certificate introduced failed to inspire the
confidence of the P.S.C. for the reasons that (i) the applicant, though aware of the experience did not
mention it when he submitted the application to make up the short-fall of 1½ months teaching experience;
(ii) the applicant immediately after the submission of the application, the lapse of a few months, made a
claim that he worked in Barrackpore Kendriya Vidyalaya from 2.1.86 to 4.8.86. This experience would make
up the short-fall. But the claim from 6.3.86 to 4.8./86 was false. (iii) only when he failed to back up his claim
of working in Kendriya Vidyalaya from 5.3.86 upto 4.8.86 he failed the other two certificates. (iv) He gave a
written declaration at the foot of his application that "I hereby declare that all statements made in this
application are true, complete and correct to the best of my knowledge and belief etc."
The certificate granted by Pursurah High School cannot be taken into consideration. The second
certificate failed to inspire to confidence of the P.S.C. Considering the circumstances, it cannot be said that
the P.S.C. acted arbitrarily.
Let us assume that the second certificate is worthy of consideration. Still then, this will not lead to
any favourable decision in favour of the applicant for the reasons given below. The ld. Advocate for the
applicant referred to the annexures RJ1, RJ2, RJ3 and RJ4 of the rejoinder filed by the applicant to the reply
of respondent no3 in this connection. But a close scrutiny of the documents belie the stand of the applicant.
In RJ1, it is stated that "Date of birth, educational qualification and caste certificate verified with reference to
the original and found correct" (Endorsement dated 10.5.94 at the left hand bottom of the document). So it
is clear that the relevant certificates were already mentioned therein. These were verified with the originals
subsequent to the closing date of the application which was 16.4.92. The same thing happened in RJ2 &
RJ3. In RJ4 age certificate was not produced and this fact is written on the first page of the application
FORM. It does not show that any paper was subsequently filed and accepted. In our case, nothing was
mentioned about teaching experience and/or inspection experience beyond 2 years 10 months 15 days. So
the subsequent production of any paper beyond 24.12.96 was not with reference to anything disclosed in
the application. It was an addition to the facts disclosed in the application to make up the short fall. So the
applicant, as per his own declaration, did not fulfill one of the essential conditions of eligibility. If he is
allowed to be considered for eligibility, this will be naked discrimination in his favour. There might be more
people eligible to come forward with less than three years' inspection or teaching experience in school. But
they did not or could not come in the picture because of the eligibility clause. Thus there would be
relaxation of eligibility condition for only one candidate for no justification. The P.S.C. is a constitutional
authority. It has to act within the bounds of law. It cannot certainly discriminate between the candidates
standing on the same footing without reasonable justification. In this case, the P.S.C. allowed the applicant
to appear at the examination provisionally. But subsequently when it was found that he did fulfill the
eligibility clause, that his candidature was cancelled. Had he been allowed, then the P.S.C. would be failing
in its duty. Bindal's case (supra) and Asha Kaul's case (supra) support this view. Even if the certificate
issued by Pursurah High School was taken into consideration, this position would prevail. The decision in
N.C.Devin's case (supra) also lends support to this view.
Let us now consider the question of legitimate expectation. The ld. Advocate for the applicant has
relied upon the principles laid down in Hindusthan Development Corporation case (supra) and Punjab
Communication Ltd. Case (supra), "This doctrine, evolved in England, has been followed in most English
speaking countries, including India, to insist a duty to bear upon an administrative authority in some cases
where otherwise the affected individual had no right to be heard." ("Constitutional Remedies and Writs" by
D.Basu, 1994 Edn.pp.364). According to the Basu, the author, there are four exceptions to the doctrine of
legitimate expectation. First, there cannot be a legitimate expectation to a thing which would involve the
violation of a statute. Secondly, legitimate expectation cannot preclude legislation. Thirdly, no legitimate
expectation can be founded upon an application which has been rejected for failure to comply with the
conditions imposed for its consideration. Fourthly, in the matter of appointment to Govt. service a candidate
does not acquire an indefeasible right to be appointed merely because his name appears in the Select List
made by a Selection Board. In the absence of any specific rule entitling him to such appointment, the Court
or Tribunal cannot fetter the discretion of the appointing authority by the doctrine of legitimate expectation in
the absence of arbitrariness or malafide. Even the doctrine of natural justice cannot be evoked if he is not
heard before canceling such Select List for bonafide reasons. (ibid.pp.368-369).
From the position of law as discussed above, the fourth expectation based upon Union Territory –
vs- Dilbagh (1993) 23 A.T.C. 431 (para 12), Supreme Court is a complete silencer so far as the plea of
legitimate expectation is concerned in this case. No further discussion on the point is necessary. The
applicant cannot reap any benefit by relying upon the doctrine of legitimate expectation in this case.
In he light of our discussions above, we find no merit in this case. Accordingly, the application fails
and is dismissed. No order is made as to cost in the facts and circumstances of the case.
Plain copies countersigned by the authorized officer of this judgment be given to the ld. advocates
of both sides.
***
Appointment order issued to selected candidates after terminating the Service of Adhoc Lecturer
following the principle “Last come first Go”
Special Civil Application No.2664 of 2001 and connected cases
D.D. 15.7.2002
Hon'ble Mr. Justice C.K.Buch
Shah Jolly Chandravadan – Petitioners
Versus
State of Gujarat - Respondents
Recruitment to the post of Lecturer in Government Colleges (Class-II Gazetted)
Pursuant to notification dated 13.6.98 for recruitment to fill up 475 vacancies of Lecturers in
Government Colleges, the Gujarat Public Service Commission after the selection prepared a select list and
forwarded the same to the Government for issuing appointment orders. At that time, more than 300
Lecturers were working on ad hoc basis in the vacancies notified subject to availability of regularly selected
candidates by Public Service Commission. As there was delay in issuing appointment orders to the
selected candidates they approached the High Court. Lecturers who were working on ad hoc basis also
approached the High Court for regularization of their service.
The High Court has allowed the applications filed by the selected candidates and rejected the
applications filed by ad hoc Lecturers and issued direction to the State Government to issue appointment
orders to the selected candidates after terminating the services of ad hoc Lecturers following the principle
"last come first go".
Cases referred:
1. AIR 1987 SC 2034 Osmania University Teachers Association V/s State of Andhra Pradesh & Anr.
2. 1992(2) SCC 29 Karnataka State Private Stop-Gap Lecturers Association v/s State of Karnataka &
Others
3. 1992 (3) Scale 361 Sabita Prasad v/s State of Bihar
4. 1994 Lab. I.C. 2343 Bhagalpar University v/s State of Bihar
5. AIR 1996 SC 2775 Dr. Surinder Singh Jamwal & Anr. V/s State of Jammu & Kashmir
6. 1997(1) SCC 350 P.Ravindran & Others v/s Union Territory of Pondicherry and others
***
Selection based solely on Personality test and viva-voce
Writ Petition No.4133 of 1991 & connected cases
D.D. 27.2.1992
Hon'ble Mr. Justice V.P.Tipnis
Hon'ble Mr. Justice M.S.Vaidya
Shaligram & Ors. – Petitioners
Vs.
The State of Maharshtra & Ors.
Whether selection based solely on Personality Test or Viva-voce is valid?
Yes
Following procedures of the Commission in the recruitment to the post of Civil Judge (Junior
Division) are upheld by the Court:
(1)
Chairman of the Commission can constitute or re-constitute the Interview Committee
and
(2)
Short listing of candidates eligible for interview by conducting Screening Test.
Cases referred:
1. AIR 1963 Mysore 202 K.N.Chandrasekhara v. State of Mysore
2. 1980 Lab. IC 759 T.N.Manjula Devi v. State of Karnataka
3. 1981 4 SCC P.159 Lila Dhar v. State of Rajasthan & Ors.
4. 1985(4) SCC P.417 Ashok Kumar Yadav vs. State of Haryana & Ors.
5. (1987 Supp) SCC 401 State of U.P. vs. Rafiquddin
6. (1991) 1 SCC 662 Mohinder Sain Garg V. State of Punjab
ORAL ORDER (PER TIPNIS. J)
As these four writ petitions raise common points of law and fact, they are disposed of by common
order.
2.
Writ petition No. 4133/1991 is filed by Sri Shaligram Sakharam Manwar. The petitioner is a
legal practitioner and has been practicing in the District and Sessions Court and the subordinate courts at
Aurangabad since 1981. The Deputy Secretary of the Maharashtra Public Service Commission (MPSC)
invited applications for the post of Civil Judge (Junior Division) and Judicial Magistrate (First Class) from
eligible candidates vide a notification. dated 22nd of May 1990 for filling 54 vacancies in the Judicial Service
of the State of Maharashtra which are exclusively reserved for the candidates belonging to backward
classes, 2 posts for Scheduled Castes and Scheduled Caste converts to Buddhism, 47 posts for Scheduled
Tribes, including those living outside the specified areas and 5 posts for De-notified Tribes and Nomadic
Tribes. To be eligible for appointment, the candidates should ordinarily be not less than 21 years and not
more than 40 years of age on 1st September 1990, the candidates must have practiced as an Advocate,
Attorney or pleader in the High Court at Bombay or in courts on 3 rd July 1990 and the candidates should
have sufficient knowledge of Marathi to enable him to speak, read, write and translate with facility into
English and vice versa. In response to the advertisement the petitioner submitted his application.
3.
There after, the MPSC again invited applications for 200 vacancies of Civil Judge (JD) and
Judicial Magistrate (FC) in the Judicial Service of the state of Maharashtra. It was also notified that 68
vacancies are reserved for the candidates belonging to backward classes; 26 for scheduled castes and
scheduled caste converts to Buddhism, 14 for Scheduled Tribes, including those living outside the specified
areas, 8 for De-notified Tribes and Nomadic-Tribes and 20 for other backward communities. To be eligible
for appointment, the candidate must ordinarily be not less than 21 years and not more than 35 years of age,
there being relaxation upto 40 years in cases of candidates belonging to communities recognised as
backward by the Government of Maharashtra for the purposes of recruitment as on 1st January 1991. The
other requirements wee identical with the earlier notification. It was further specifically notified in the said
advertisement that a Screening Test consisting of two papers of descriptive type on the topics mentioned
will be held by the commission on 3rd March 1991 for short-listing of candidates to be called for interview.
All the candidates whose applications were filled in properly were to be admitted to the test without scrutiny
of their eligibility for appointment to the post. The marks obtained by the candidates in that test shall not be
taken into consideration for the purpose of final selection nor the same will be communicated to the
candidates. Selection was to be made on the basis of performance at interview only. In this advertisement
it was also notified that the candidates belonging to Scheduled – Castes, Scheduled Tribes, De- notified
Tribes and Nomadic Tribes who have applied for the posts advertised by the Commission under special
drive (i.e. the earlier notification) need not apply again and their applications would be considered for these
posts else and they will be required to appear for common "screening test". This notification was issued on
26th September 1990. The petitioner successfully passed the screening written examination and was called
for viva voce test on 25th September 1991. The petitioner has contended that he appeared before the
Commission on 25th September 1991 for viva voce test and though it was conducted hardly for two to three
minutes, he replied all the questions satisfactorily. The petitioner, however, was shocked when he received
when he received letter dtd 06.11.1991 from MPSC stating that he is not recommended for the post. The
petitioner challenges the validity of Rule 4 of the Bombay Judicial Service- Recruitment Rules, 1956. The
petitioner also challenges the method and manner of preparing the select list by the MPSC on several
grounds. The petitioner has also challenged the select list on the ground that so far as the reserved posts
for backward class candidates are concerned, the MPSC has not followed the directions – instructions in
that behalf given by the Government under certain circulars. The petitioner has, therefore, prayed that the
method and manner of selection procedure followed by MPSC should be declared as arbitrary and the
select list prepared by the MPSC should be quashed and not aside and the MPSC may be directed to
consider the claim of the petitioner to the post applied for by issuing appropriate directions.
4.
Writ petition No. 74/1992 is filed by one Pawan kumar Manohar Bedre. He has stated that he
has applied in response to the advertisement published by the MPSC on 26th June 1990 inviting applications
for vacancies of Civil Judge (J.D) and Judicial Magistrate (FC). He was called for a written examination held
on 3rd of March 1991. Having succeeded in the said examination he was called for interview on 26th
September 1991. The petitioner appeared for the interview and, according to him, replied all the questions
asked by the member of the panel in a satisfactory manner. However, the petitioner was dismayed when he
received letter dtd 06.11.1991 from MPSC informing that the MPSC has not recommended him for the post.
The petitioner has challenged the procedure of MPSC on the ground that the panel constituted for
interviewing the candidates consisted of different members for different member for different candidates.
Some time the panel consisted of Chairperson of MPSC Smt. Patil and Shri. B.B. Shande as the member of
the MPSC and at some time Shri B.B. Shinde was replaced by Shri. S.A., another member of MPSC. At
times the panel consisted of only the Chairperson Smt. Patil though Hon'ble Mr. Justice Puranik, as the
representative of the High Court of Bombay was present all throughout. The petitioner has contended that
inasmuch as Hon'ble Mr. Justice Puranik did not have right to vote under the rules, the decision of selecting
the candidates, after 09.11.1991, was taken only by the Chairperson, namely, Smt. Patil, which is invalid.
This procedure, according to the petitioner, is arbitrary. The petitioner has also challenged the validity of
Rule 4 (4) of the Bombay Judicial Service Recruitment Rules, 1956, on the main ground that under the rules
the Hon'ble High Court Judge is not entitled to vote. The petitioner has also challenged the manner of
preparing the select list inasmuch as no weightage has been given to the written test at all and the selection
is based solely on the personality test or the viva voce. The petitioner has also challenged the process of
selection on the ground that he was interviewed only for five minutes. The petitioner has, therefore, prayed
for quashing the select list prepared by the MPSC and also for direction to the respondents to adopt proper
procedure for selection to the posts of Civil Judge (JD) and Judicial Magistrate (FO).
5.
Write petition No. 206/1992 is filed by Shri. Shivanand Bhagwanrao Kulkarni. The petitioner
is practising Advocate since 06.03.1985 in the courts at Nanded, Labour and Industrial Courts, High Court
and Tribunals at Aurangabad. The petitioner applied in response to advertisement published by MPSC on
26.06.1990. He passed the written test held on 03.03.1991 and who called for interview on 20 th September
1991. The petitioner appeared for the interview and according to the petitioner, he answered all the
questions in a satisfactory manner. However, he was dismayed when he received letter 04.11.1991 from
MPSC informing him that he was not recommended for the post. He has also challenged the manner and
method of selection on the ground of change in the composition of the interview panel from time to time.
The other submissions and challenges are identical relief's are claimed in the petition
6.
Writ petition No. 207/1992 is filed by one Laxman Nagorao Deckare and Kum. Ranjana
Dattatraya Reddi who are practising advocates in the District Court at Nanded and the courts subordinate to
it. Petitioner No.1 has been practising since 1980 while petitioner No. 2 since about 1986. The petitioners
applied for the posts in response to advertisement dtd 26.06.1990 and were called for written test. The
petitioners No.1 and 2 were further called for personal interview held on 20.09.1991 and 03.10.1991
respectively. According to the petitioners, they answered the questions asked by Hon'ble member of the
panel in a satisfactory manner but they were dismayed when they received communications dtd 04.11.1991
and 06.11.1991 respectively by petitioners Nos. 1 and 2 informing them that they have not been
recommended for the post. They have contended that when the interview of petitioner No.1 was held on
20.09.1991 the panel consisted of the Chairperson of MPSC Smt. Patil, another member of MPSC Shri B.B.
Shinde and Hon'ble Mr. Justice Puranik of the Bombay High Court while when petitioner No.2 was
interviewed on 03.10.1991 the panel consisted of the Chairperson of the MPSC Smt. Patil and Hon'ble Mr.
Justice Puranik of the Bombay High Court. The petitioners have complained that there were 254 vacant
posts and though about 484 candidates were called, it is learnt that recommendations are not made for all
the 254 posts despite availability of eligible candidates like petitioners and others who have succeeded in
the written test. The petitioners have also contended that initially applications were invited for 54 posts
exclusively reserved for the candidates belonging to backward classes, however, they were merged by
conducting written test for 254 posts which has resulted into injustice to the candidates belonging to
reserved classes. The petition contains similar and identical challenges as those in writ petition No. 74/1992
and identical relief's are claimed in this petition as well.
7.
In all the petitions the State of Maharashtra and MPSC are made respondents. Notice before
admission was issued in all the petitions to the respondents. Affidavit-in-reply has been filed on behalf of
the MPSC in writ petition No. 206/1992 and it is prayed that the same affidavit may be treated as affidavit-inreply in all the petitions. Separate additional affidavit-in-reply are also are also filed in respect of writ
petitions No. 4133/1991 and 207/1992. In affidavit-in-reply to writ petition No. 207/1992. it is stated that
the commission has interviewed about 464 candidates and recommendations of 254 candidates are made.
It is further stated that the written test was conducted as screening test and the said procedure has been
approved by the Supreme Court by its judgment dtd 29th April 1987 rendered in Civil Appeal No. 1971/1986
(States of Maharashtra V Arunkumar Ganeshrao and others). It is further stated that two different
advertisement were issued; first was published on 22nd May 1990 for 94 posts exclusively reserved for the
candidates belonging to Scheduled Castes, Scheduled Tribes, De-notified Tribes and Nomadic Tribes.
Another advertisement was published on 26th September 1990 inviting applications for 200 vacancies for the
posts of Civil Judges and reservation of 26 vacancies for Scheduled Castes, 14 for Scheduled Tribes, for
De-notified Tribes and Nomadic Tribes and 20 for other backward communities was provided. It is further
mentioned in the affidavit that as such 61 vacancies were available for the candidates of Scheduled Tribes
when only 10 applications were received from candidates belonging to Scheduled Tribes out of which only
6 candidates could qualify for interview after screening written examination and out of 6 interviewed
candidates belonging to Scheduled Tribes was absolute and, therefore, the MPSC has not recommended
any other candidate against the vacancies specifically reserved for Scheduled Tribes candidates. So far as
posts reserved for the candidates belonging to the Scheduled Castes are concerned, recommendations
have been made for filling up the posts as far as scheduled caste candidates are concerned, now there is
no backlog whatsoever.
8.
In affidavit-in-reply to writ petition No. 4133/1991 filed on behalf of the MPSC it is stated that the
petitioner was interviewed on 25th September 1991. However, no record of duration of the interview of each
candidate is kept. The petitioner was not recommended on the basis of the performance in the interview.
It is further stated that the Commission is an autonomous body established under Art.515 of the constitution
of India and functions of the Commission are enervated in Article 320 of the Constitution of India. The
Commission adopts various methods for selection of suitable candidates i.e. competitive examination and/or
interview or screening test and interview. It is further stated that for the selection of the posts advertised in
this case the Commission decided to have written test for a limited purpose of short-listing the candidates
and interview of candidates qualified in the test as a method for selection. It is that this procedure has
been upheld by the Hon'ble Supreme Court of India in Civil Appeal No. 1971/1986 preferred by the
Commission against the judgment of the Bombay High Court in writ petition No.57/1986. It is further stated
that it was clearly mentioned in the notification dtd 26th September 1990 that screening test for short-listing
of candidates to be called for interview would be held and marks obtained by candidates in the test would
not be taken into consideration for the purpose of final selection and that selection would be made on the
basis of performance at interview alone. It is further stated that so far as scheduled caste is concerned,
candidates belonging to scheduled castes have been recommended by the Commission for all the reserved
vacancies in respect of the Scheduled Caste.
9.
The main affidavit-in-reply is filed in writ petition No. 206/1992. It is stated that the panel for
the interview was constituted in accordance with the rules framed by the MPSC to regulate the internal
procedure of work called, "Maharashtra Public Service Commission Rules of procedure; 1981". It is
contended that the MPSC being a body created under the constitution of India, has authority to regulate its
own procedure regarding conduct of examinations and interviews, etc. Rule 8 of the Rules gives authority
to the Chairman to constitute or re-constitute the committee of one or more members, including the
Chairman, and assign to each committees specific item of work. Under Rule 8(4) of the rules the Chairman
is empowered to constitute Interview Committees consisting of Chairman and/or one or more members.
Under the rules the Chairman alone can interview the candidates or he can appoint one or more members.
It is further stated that interviews were held from 5th September 1991 to 16th October 1991. Paragraph 5 of
the affidavit-in-reply reveals that from 5th September 1991 to 15th September 1991 the panel consisted of the
Chairperson Smt. Patil and another member of the Commission Shri. S.P. Sing. As Shri. S.P. Sing was not
available because of his personal difficulties the Chairperson reconstituted the Committee by substituting
Shri (Dr.) B.B. Shinde, another member of the MPSC for Shri S.P. Sing and the said reconstituted
Committee interviewed candidates from 16th September 1991 to 25th September 1991. As Shri Shinde was
not available, the Chairman again reconstituted the Committee consisting of the Chairperson Smt. Patil and
Dr. Tawade, another member of the MPSC and this panel interviewed the candidates from 26th September
1991 to 30th September 1991. As Mr. S.P. Singh resumed his duties and had become available the
Committee was again reconstituted consisting of the Chairperson Smt. Patil and Mr. S.P. Singh and
interviewed the candidates on 1st and 3rd October 1991. On 4th October 1991, the panel consisted of Smt.
Patil, Chairperson, and Shri Kanga, member of the MPSC and from 7th October 1991 to 16th October 1991 it
consisted of the Chairperson of MPSC Smt. Patil alone. The affidavit further states that on all the dates of
the interviews in respect of all the candidates Hon'ble Mr. Justice Puranik was present as the representative
of the High Court and Hon'ble Mr. Justice Puranik took part in the deliberations and his views were
considered. Paragraph 6 of the affidavit further reveals that the Chairperson of the MPSC Smt. Patil and
Hon'ble Mr. Justice Puranik were present all throughout the interviews of all the candidates and Hon'ble Mr.
Justice Puranik took part in the deliberations and also he has submitted the list of the candidates. It is
further stated that taking into consideration the views of Hon'ble Mr. Justice Puranik, finalised list was
circulated amongst all the members of the Commission and also to Hon'ble Mr. Justice Puranik who has
approved the said list and the selection was unanimous. It is therefore, contended on behalf of the MPSC
that the procedure followed by the Commission is perfectly valid and legal.
The contention of the petitioner that the decision of selecting the candidates interviewed after
09.10.1991 is taken by only one member, namely the Chairperson is untenable as from 7th October 1991 to
16th October 1991 the Chairperson and Hon'ble Mr. Justice Puranik were the members of the panel and
both of them interviewed the candidates. The affidavit further stated that in the entire process of interviews,
there arose no question whether vote was required. That the recommendations are to be made by the
Commission as a whole a contemplated under Art. 320 of the Constitution and the Commission, after
considering the entire aspect of the matter, has recommended the select list of the candidates to the
Government for appointment to the posts of Civil Judge (JD) and Judicial Magistrate (FC). It is further stated
that the details of deliberations between the members of the panel is not required to be communicated to
the candidates. It is reiterated that the views expressed by Hon'ble Mr. Justice Purnik were duly considered
and list was prepared after it was circulated to all the members of the Interview Committee. It is further
stated that in the absence of any provision, the constitutional body like Public Service Commission, can
frame its own procedure and the procedure for the interview, which was followed was in conformity with the
rules formed under Art.234 of the Constitution of India. It is further stated that there were 254 vacancies for
which Commission received about 2060 applications and there was no other alternative before the
Commission but to hold Screening Test to short-list the candidates for interview. It is further submitted that
the aforesaid procedure was approved by the Supreme Court in the case of State of Maharashtra V Arun
Kumar and others. It is further submitted in the affidavit that duration of the interview is not the only criteria
to select the candidates. It depends on the response given by the candidates at the time of the interview
and judged by the members of the Interview Committee who are experts in the filed and the Hon'ble Court
should not disturb the assessment by the Interview Committee. It is further asserted that the procedure for
the interview and time to be devoted to every candidate depends on several factors and it is for the
Interview Committee to decide upon the time of the interview. It is also stated that the interviews were held
by the Committee formed by the Chairperson an recommendation of the Commission as such have been
forwarded to the Government for making appointments and there is full compliance of Art.320 of the
constitution of India. It is also submitted that the written examination was conducted only to our tail the
number of candidates to be interviewed and the came should not be compared with the competitive
examinations held for appointment to other Civil Services. Under the circumstances, the MPSC has
submitted that no for interference is out and the petitions should be rejected.
10.
Shri S.B. Kulkarni, Advocate, Shri V.R. Patil, Advocate, Shri A.H. Joshi, Advocate, appeared
on behalf of the petitioners. In fact Advocate Shri. S.B. Kulkarni himself is petitioner in writ petition No.
206/1992. Shri Kakade, learned Government Pleader, appeared for the state of Maharashtra and Shri A.B.
Naik, Advocate, appeared for the MPSC in all the petitions. We have heard the learned Advocate for both
sides at some length and almost as a final hearing matter and the hearing took place for almost the whole
day.
11.
Now, so far as the challenge to the validity of Rule 4(4) of the Bombay Judicial Service
Recruitment Rules, 1956, is concerned, we do not find much force in the same. Under the provisions of
Art.234 of the Constitution of India, appointments of persons other than District Judges to the judicial
services of the State shall be made by governor of the State in accordance with the rules made by him in
that behalf after consultation with the state Public Service Commission and with the High Court exercising
jurisdiction in relation to such State. The Bombay Judicial Service Recruitment Rules are admittedly made
by the Governor of Bombay I exercise of power conferred by Art.234 after consultation with the state
Maharashtra Public Service Commission and with the High Court exercising jurisdiction in relation to such
State. The Bombay Judicial Service Recruitment Rules are admittedly made by the Governor of Bombay in
exercise of power conferred by Art. 234 after consultation with the Maharashtra Public Service Commission
and the High Court of Bombay. Rule 4(4) of the Bombay Judicial Service Recruitment Rules, 1956, reads
as under:
"4(4) (i) appointments to the posts of Civil Judge (Junior Division) and Judicial Magistrates
of the First Class shall be made by nomination from members of the B&T (or, in special
circumstances, by re-employment of retired Civil Judges (Junior Division) or by –
nomination from among officers of the other services):
(11) the appointments shall be made by the Governor in consultation with the Commission
(except that it shall not be necessary to consult the Commission in re-employing retired
Civil Judges (Junior Division):
Provided that the Commission shall invite a representative of the High Court to be
present at the interview held by the Commission for this purpose and the representative
so present may take part in the deliberations of the Commission but shall not be ensiled to
vote:
(iii)
(appointments other than appointments of received Civil Judges (Junior Division)
shall) be made from among candidates who(a) are ordinarily not less than twenty-one and not more than (thirty five years)
(forty years) in the case of candidates belonging to Committee recognised
as Backward by Government for purpose of recruitment.
(b) (Unless otherwise expressly directed, ordinarily have practiced an
Advocates) attorneys or pleaders in the High Court or Courts subordinate
this to for not less than three years of the last date prescribed for the
submission of the applications:
(c) are certified in Granter Bombay by the Principal Judge of the City Civil Court
or the Chief Judge of the Small causes Court or the (Chief Metropolitan
Magistrates) and elsewhere by a District Judge, to have sufficient
knowledge of (Kalathi), to enable them to speak, read, write and translate
with facility into English and vice versa.
(Note:- In the case of policy prosecutors serving under the Government who
apply for the posts, their service in that capacity should be taken on practice
at the Bar).
(iv)
Unless otherwise expressly directed, every person appointed under the last for
going sub-rule shall be on probation for a period of two years and on the expiry
of such period he may be confirmed if :(a) there is a vacancy; (and)
(b) his work is found satisfactory:
(v)
Appointment by re-employment of retired Civil Jude (Junior Division) shall be
made by the Governor after consultation with the High Court. Appointment by
nomination from among officers of other services shall be made by the Governor
after consultation with the High Court ad the Commission".
It is suggested that the disability to vote makes the presence of the representative of the High
Court ineffective. We do not agree. It is an admitted position that Shri justices Puranik, Sitting High Court
Judge of the Bombay High Court, was present throughout all interviews of all the candidates. The affidavitin-reply filed on behalf of the MPSC clearly states that on all the dates of the interviews Hon'ble Mr. Justice
Puranik was present and took part in the deliberations an his views were considered. The affidavit further
states that taking into consideration the views of Mr. Justice Puranik the list was finalised and it was
circulated amongst all members of the Commission and also the Hon'ble Mr. Justice Puranik who has
approved the said list. The selection, it is stated, was neanirous.
It is further reiterated that the views
expressed by Hon'ble Mr. Justice Puranik were duly considered and not only the select list was approved by
all the members of the Commission but it was also fully approved by Hon'ble Mr. Justice Puranik.
In the case of Ashok Kumar Yadav Vs. State of Hariyana and others (1985(4) SCC P 417), in
paragraph No. 31, the Supreme court has observed that when selections to the Judicial Services 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 sine 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 there are strong and cogent
reasons for not accepting such advice and such strong and cogent reasons must be recorded in writing by
the Commission and members of the Public Service Commission. The Supreme Court gave such direction
to the Public Service Commission in every State.
12.
In the facts before us it is clear that Hon'ble Mr. Justice Puranik, sitting Judge of the Bombay
High Court, was present all throughout the interviews. He took part in the deliberations. The views
expressed by Mr. Justice Puranik were duly considered an infact unanimous decision was taken by the
MPSC which was also approved by Hon'ble Mr. Justice Puranik. We are satisfied that the directions given
by Hon'ble Supreme Court were fully complied with. The provision that the High Court representative shall
not be entitled to vote is absolutely proper insomuch as he is not the member of the MPSC. The MPSC is
constituted under Art.315 and Art.316 of the Constitution of India. The functions of the Public Service
Commission are enlisted under Art. 320 of the Constitution of India. Thus the MPSC is a constitutional
functionary. As such, no person other than the duly appointed member cannot as member thereof. When,
under the rule framed by the Governor, under Art.234 of the Constitution of India, the sitting Judge is
present and his views are almost binding, in our opinion, mere disability to vote does not in any way infringe
the provisions of Art.234 of the Constitution. We have also been unable to the appreciate how the said rule
infringes the provisions of Art. 50, which are to the effect that the State shall take steps to separate the
Judiciary from the Executive in the Public Service of the State.
13.
So far as the method and procedure of the MPSC in this behalf is concerned, it is firstly
challenged on the around that the method, procedure and rules in that behalf are not made by the Governor.
In that behalf the petitioners relied upon the judgment of the Mysore High Court in the case of K.N. Chandra
Sekhere Vs. State of Mysore (ATR 1963 Mysore 292) (V 50). In the said judgment it was laid down that in
the absence of any rule prescribing the qualifying marks, or in the absence of any power in the Governor to
delegate his authority to determine the qualifying marks to the Public Service Commission, the commission
is not competent to determine the qualifying marks. Identical challenge was considered by the Supreme
Court in the case of State of U.P V Rafiquddin (1987 Supp) acc 401). In paragraph 9 of the judgment in the
said case the Supreme Court has observed that under Rule 19 of the U.P Civil Services (Judicial Branch)
Rules, 1951, the commission is required to judge the suitability of a candidate on the basis of sufficiently
high marks obtained by a candidate in the viva voce test, it has to fix some percentage of marks which in its
opinion may be sufficient to the suitability of a candidate. In the absence of a fixed norm, there could be no
uniformity in assessment suitability of candidates in the viva voce test. The Commission had, therefore,
power to fix the norm. The Supreme Court further observed that the viva voce test is a well recognised
method of judging the suitability of the candidates for appointment to public service and this method had
almost universally been followed in making selection for appointment to public services. In paragraph 10
the Supreme Court referred to the case of K.H. Chandra Sekhara decided by the Mysore High Court. The
Supreme Court notes in the said paragraph that, however, the full Bench of the Mysore High Court had not
approved the view taken in K.M. Chandra Sekhara's case as can be gathered from the case of T.N. Manjula
Devi V State of Karnataka (1980 Tab.TC759) wherein the Full Bench had held that the process of selection
of suitable candidates to a responsible post involved a mini standard to be crossed by candidates and that
had be fixed by the selection committee.
14.
In this behalf it is also relevant to notice that the Supreme Court was concerned with this very
procedure followed by MPSC and this very Rule 4(4) of the Bombay Judicial Service Recruitment Rules,
1956, in Civil Appeal No 1971/1986 decided by the apex court on April 29, 1987. In the said appeal, the
judgment of Bombay High Court rendered in Writ Petition No. 57/1986 was challenged by the state of
Maharashtra. In the said writ petition challenge was to the procedure and method evolved by the MPSC for
filling up 150 posts of Civil Judge (Junior Division) and Judicial Magistrate (FC). In the said case also it was
compulsory for all the candidates to appear for a written examination by way for scrutiny before the
candidates were interviewed for viva voce test. The High Court had faulted the procedure as, in its opinion,
it was essential to get the approval of the Governor for introduction of new rules or modification of the
existing rules. The Supreme Court in the said case specifically examined the procedure for appointment of
Civil Judges as guided by Rule 4(4) of the Bombay Judicial Services Recruitment Rules. The Supreme
Court observed that these rules are in conformity with Art.234 of the Constitution. It further observed that the
procedure might be evolved by administrative directions provided those do not run counter to the
requirement as are enjoined by the Constitution. The Supreme Court further observed that the Government
cannot amend or supercede statutory rules are silent on any administrative instructions but if the rules are
silent on any particular point the Government can fill up the gap and supplement the rules and issue
instructions not inconsistent with the rules already framed. The Supreme Court further observed that this
position in law has been universally applied by the open Court and other courts in the field where there in no
specific rule. I t was further observed that in selection of the nature wherein over 2100 candidates had
offered their candidature, it would have been practically impossible to select the candidates without the
written test. To have interviewed 2100 candidates with the help of High Court Judge would have been
practically impossible. Administrative rules under the constitution are made to be no construed as these
work and effectuate the purpose for which these were intended. The Supreme Court further observed that
the procedure was evolved in consultation with the Government, Public Service Commission and the High
Court. The three major agencies were involved in the job of selection and framing of the rules. It further
appears to be and just to have preliminary scrutiny by written examination no that after that in interviews
salient requirements can be focused. It is a rational and fair method. It is not an uncommon method. It
saves time and avoid a waste. The Supreme Court further observed that the grievance which seems to
have impressed the High Court was that the petitioner right to interview has been interfered with but the
person who is eligible for the job has no right as such to the interview. He has right to be considered by a
procedure which is fair, just and reasonable and common to all.
15.
In facts before as identical procedure was followed, namely, that the candidates to be eligible
were required to be not less than two years and not more than 35 years of age on the appointed date the
upper age limit being released upto 40 years in case of candidates belonging to committee recognised as
backward by the Government of Maharashtra for the purpose of requirement was prescribed. The
candidates were further required to have practised as an Advocate, attorney or pleader in the High Court at
Bombay or in the Courts subordinate there to for not less than three years. They were required to have
sufficient knowledge of Marathi to enable them to speak, read, write and translate with facility into English
and vice versa. It was further provided that screening test consisting of two papers of descriptive types on
certain subjects will be held for short-listing of the candidates to be called for the interview. All candidates,
whose applications were filled properly, were admitted to the written test without scrutiny of their eligibility for
appointment to the post. It was further specifically mentioned that marks obtained by the candidates in the
test shall not be taken into consideration for the purpose of final selection nor they will be communicated to
be candidates. Selection was to be made on the basis of their performance at interview only. As such, the
challenge to the constitutional validity of rule 4(4) of the Bombay Judicial Service Recruitment Rules, 1956,
must fail.
16.
The second challenge was that the selection was solely made on the basis of interview test. In
view the judgment of the Supreme Court in the case of state of Maharashtra Vs. Arunkumar Ganeshrao and
other in Civil Appeal No. 19/11/1986, already referred to above, the argument need not as any further.
Identical procedure are approved by the apex Court in respect of these very coats. Secondly in view of the
judgment of the Supreme Court is the of Lila Dhar V State of Rajasthan and others reported in (1981 & SCC
P. 159 it cannot be entered as of law that in every the selection has to be made on the basis of written test
ad in no can it can be made solely on the basis of viva voce. In fact the first sentences of the judgment
reads as under:
" what is the ideal of selection in a public service by written examination, by oral
test (viva voce),or by a combination of both test".
The Supreme Court observed that while a written examination concerned candidate's knowledge
and intellectual ability, an interview test is valuable to uses a candidate's overall International and personal
qualities. While a written examination has certain distant adventure over the interview-test there are yet no
written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cocooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in
meting and dealing with others, adaptability, judgment, ability to make decision, ability to lea, intellectual
and normal integrity. Some of these qualities may be evaluated, perhaps with some degree of error, by an
interview-test, much depending on the constitution of the Interview Board.
(a)
In paragraph 6 of the judgment the Supreme Court has observed that if both written examination ad
interview-test are to be essential features of proper selection, the question may arise as to the weight to be
attached respectively to them. In the case of admission to a college, for instance, where the candidate's
personality is yet to develop and it is too early to identify the personal qualities for which greater importance
may have to be attached in Inter life, greater weight has per force to be given to performance in the written
examination. The importance to be attached to the interview-test must be minimal. On the other hand, in
the case of services to which recruitment has necessarily to be made from persons of nature personality,
Interview-test may be the only way, subject to basic one essential academic and professional requirements
being satisfied. To subject such persons to a written examination may yield unfruitful and negative results,
apart from its being an
cruelty to these persons. There are, of course, many services to which
recruitment is made from younger candidates whose personalities are on the threshold of development and
who shows sign of great promise, and the discerned may in an interview-test, catch a glimpse of the further
personality. In the case of such services, where sound selection must combine academic ability with
personality promise. some weight has to be given, though not much too great a weight to the interview-test.
There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to
service according to the requirements of the service, the minimum qualifications prescribed, the age group
from which the selection is to be made, the body to which the took of holding the interview-test is proposed
to be entrusted and a host of other factors. It is a matter for determination by experts. It is a matter for
research. it is not for the courts to pronounce upon it unless exercised weight has been given with proven
or obvious oblique motive.
(b) In paragraph 7 of the judgment the Supreme Court observed that the Rajasthan Judicial Service Rules
have been made by the Governor of Rajasthan in consultation with the High Court of Rajasthan and the
Rajasthan Public Service Commission. The High Court may be expected to know the precise requirements
of Judicial Service Commission is an expert body thoroughly conversant with recruitment policies and
selection methods. Both are well-acquainted with the particular needs of their State and the people. Both
the High Court ad Public Service Commission are independent bodies outside the executive control,
occupying special position, enjoying special upper the constitution. Neither is an outside agency. Both are
well-acquainted with particular needs of the and the people. If the Governor, is consultation with the High
Court and the Public Service Commission of the State makes rule stipulating seventy-five per cent of the
marks for the written examination and twenty-five percent of the interview-test, an what basis of a court
say that twenty-five percent for the interview-test is on the high aide? It must not also be forgotten that the
interview –test is generally conducted and was, in the present case, conducted by a body consisting of a
Judge of the High Court, the Chairman and a special invitee export. There can surely be no legitimate
grievance or hint of arbitrariness against this body. Yet another factor worthy of consideration in that the
candidates expected to offer themselves for selection are not raw graduates freshly out of college but are
persons who have already received a certain amount of professional training. The source material is such
that some weightage must be given to the interview-test can it possibly be said that twenty-five per cent of
the total marks is an exaggerated weightage.
(c)
In paragraph 8 the Supreme Court observed that the rules themselves do not for the allocation of
marks under different at the interview-test. The criteria for the interview-test has been laid down by the
Rules. It is for the interviewing body to take general decision whether to allocate marks under different
head or to award marks in a single lot. The award of marks under different heads may lead to a distorted
picture of the candidate on occasions. On the other had the totality of the impression created by the
candidate or the interviewing body may give a of the candidate's personality. It is for the interviewing body
to the appropriate period of making at the selection to such service. There cannot be any magic formulas
in the matter and courts cannot it in judgment over the method of marks employed by interviewing bodies
unless, as we it is proven or obvious that the method of making was chosen with oblique motive.
(d)
The Supreme Court, referring to the case of Ajay Hawia, observed as under:
"The words "or even in the matter of public employment" occurring in
the first extracted passage and the reference to the marks allocated for
the interview test in the Indian Administrative Service examination were
not intended to lay down any wide, general rule that the same principle
that applied in the matter of admission to colleges also applied in the
matter of recruitment to public services. The observation relating to
public employment was per incuriam, since the matter did not fall for the
consideration of the Court in that case. Nor do we think that the Court
intended any wide. Construction of their observation. As already
observed by us, the weight to be given to the interview-test should
depend on the requirement of the service to which recruitment in made,
the source-material available for requirement, the composition of the
Interview Board and several like factors. Ordinarily recruitment to public
service in regulated by rules made under the provision to Art. 309 of the
Constitution and we would be usurping a function which is not ours, if
we try to re-determine the appropriate method of selection and the
relative weight to be attached to the various tests. If we do that we
would be re-writing the rules but we guard ourselves against being
understood as saying that we would not interfere over in cases of
proven or obvious oblique motive".
17.
In this respect, it may be relevant to notice para 23 of judgment of the Supreme Court in the
case of Ashok Kumar Yadav, referred to above which reads as under:
" This Court speaking through Chinappa Reddy, J. pointed out in Lila
Dhar V State of Rajasthan that the object of any process of selection for
entry into public service is to secure the best and the most suitable
person for the job, avoiding patronage and favourities. Selection based
on merit, tested impartially and objectively, is the essential foundation of
any useful and efficient public service. So open competitive examination
has come to be accepted almost universally as the gateway to public
service. But the question is how should be competitive examination be
devised? The competitive examination may be based exclusively on
written examination or it may be based exclusively on oral interview or it
may be a mixture of both. It is entirely for the Government to decide
what kind of competitive examination would be appropriate i a given
cases. To quote the words of Chinappa Reddy J." In the very nature of
things it would not be within the province or even the competence of the
Court and the court would not venture into such exclusive tickets to
discover ways out, when the matter are more appropriately left" to the
wisdom of the experts. It is not for the courts to lay down whether
interview test should be held at all or how many marks should be
allowed for the interview test. Of course the marks must be minimal so
as to avoid charges of arbitrariness, but not necessarily always. There
may be posts appointments where the only proper method of selection
may be by a viva voce test. Even in the case of admission to higher
degree courses, it may same times be necessary to allow a fairly high
percentage of marks for the viva voce test. That is why rigid rules
cannot be laid down in these matters by courts. The expert bodies are
generally the best judges. The Government aided to experts in the field
may appropriately decide to have a written examination followed by a
viva voce test.
It is also relevant to notice the paragraphs 30,31,32 and 33 of the
judgment of the Supreme court in the case of Mohinder Sain Garg V.
State of Punjab 991) 1 SCC 662), which are as under:
30.
The important case in chronology is of Ashok Kumar Yadav V. State
of Haryana decided by a bench of four Judges on which both the
parties have placed reliance, for in this case their Lordships
considered all the earlier cases including the case of Lila Phar. In
Ashok Kumar Yadav case it was held that there cannot be any hard
and fast rule regarding the praise weight to be given to the viva voce
test as against the written examination. It must very from service to
service according to age group from which selection in to be made,
the body to which the task of holding the viva voce test in proposed to
be entrusted and a host of other factors. It is essentially a matter
determined by experts. The courts does not possess the necessary
equipment and it would not be right for the court to pronounce upon it,
unless to use he words of Chinappa Reddy in Lila Dhar case
"exaggerate weight has been given with proven or obvious oblique
motives".
31.
However, it is important to note that in Ashok Kumar Yadav case Rule
9 clause (1) of the Punjab Civil Services (Executive Branch) Rules,
1930 which prescribed a competitive examination for recruitment to
posts in Haryana Civil Services (Executive) and other allied Services
came up for consideration. The rule provided for a competitive
examination which included a written examination as well as viva
voce. For recruitment to 61 posts in Haryana Civil Services
(Executive) and other allied services, over 1300 candidates obtained
more than 45 per cent marks and were thus qualified for being called
for viva voce examination. Before the viva voce examination took
place 119 posts became available for which more than 1300
candidates obtaining 45 per cent of marks or more were called or viva
voce. The court in clear terms deprecated the calling for interview of
1300 and odd candidates and observe that by obtaining a minimum of
45 per cent marks did not by itself entitle a candidate to insist that he
should be called for the viva voce test. There was no obligation on
the Haryana Public Service Commission to call for the viva voce test.
All candidates who satisfied the minimum eligibility requirement. It
was also held that where there was a composite test consisting of a
written examination followed by a viva voce test, the number of
candidates to be called for interviews in order of the marks obtained
in the written examination, should not exceed twice or at the biggest
thrice the number of vacancies to be filled. However, the court did not
set aside the selection on the above grounds because the practice
which was being consistently followed was applied in the above case
also and what was done was nothing exceptional. We are also of the
view in the facts of the present once that though it was not proper for
the selection committee to have called as much as more than 1200
candidates for selection of 54 posts, but the selection cannot be
vitiated merely on this ground as such action is not tainted by any
mala fide or oblique motive. The respondents in the reply have also
stated that they had called all the eligible candidates as the same
practice was followed from the year 1970 and according to the rules
all such candidates had qualified in the written examination for being
called in the viva voce test.
32.
In Ashok Kumar Yadav case which related to public employment, it
was held in clear terms that as far as candidates in general category
are concerned, it would be prudent and safe to follow the percentage
adopted by the Union Public Service Commission in case of selection.
To the Indian Administrative Service ad other allied services. The
percentage of marks allocated for the viva vice test by the UPSC in
the above services was 12.2 per cent and that has been found to be
fair and just as directing a proper balance between the written
examination and the viva voce test. A clear direction was given in the
following terms (SCC P455, para 29 "(this Court) would therefore
direct that here after in case of selections to be made to the Haryana
Civil Services (Executive Branch) and other Allied services, where the
competitive examination consists of a written examination followed by
viva voce test, the marks allocated for the viva voce test shall not
exceed 12.2 per cent of the total marks taken into account for the
purpose of selection". The Court further suggested that this
percentage should also be adopted by the Public Service
Commission in other states, because it was desirable that there
should be uniformity in the selection process throughout the country
and the practice followed by the UPSC should be taken as a guide for
the State Public Service commissions to adopt and follow. The Court
also considered the effect of allocation of a high percentage of marks
for viva voce test in Ashok Kumar Yadav case. It was clearly held
that the allocation of 200 marks for the viva voce test out of a total of
900 marks for the generality of candidates an a total of 600 marks for
ex-servicemen was arbitrary and excessive and it had the effect of
distorting the entire process of selection. The Court further took note
of the fact that the above percentage of 33.3 per cent marks in case
of ex-service officers an 22.10 marks in cases of general candidates,
had been allocated for the viva voce test in force for almost 50 years
and everyone had acted on the basis of these rules. It was
considered that if the prescription contained in the rules was to be set
aside, it would upset a large number of appointments already made
on the basis of such selections and the integration and efficiency of
administrative machinery would be seriously jeopardised. The court
in the above circumstances did not set aside the selections already
made on the basis of on unduly high percentage of marks allocated
for the viva voce test. The court further observed that an unduly large
number of candidates were called for interview and as the marks
allocated in the viva voce test were excessively high, it was possible
that some of the candidates who might have otherwise come in the
select list were left out of it, perhaps unjustifiably it considered it
proper to direct that all the candidates who secured a minimum of 45
per cent marks in the written examination but who could not find entry
in the select list, should be given one more opportunity of appearing
in the competitive examination which would now have to be held in
accordance with the principles laid down in the judgment and this
opportunity should be given to them, even though they may have
passed the maximum age prescribed by the rules for recruitment. We
may, in the same context, mention that the case of State of UPVs.
Rafiquddin and Mohmood Alam Tariq V State of Rajasthan already
cited above, are not cases directly dealing with the controversy raised
before us and are clearly distinguishable.
33.
In our view Ashok Kumar Yadav case clinches the issues raised
before us and being a decision given by four Judges is also binding
on us. That was a case relating to public employment and a direction
was given to all the Public Service Commissions to follow the marks
allocated for viva voce test as done by the UPSC which was 12.2 per
cent of the total marks. Ashok Kumar Yadav case was decided in
1985 and we fail to understand as to why the State of Punjab did not
follow the same for making selections in 1989 for the posts of Excise
and Taxation Inspectors. It is no doubt correct that the selection of
Taxation and Excise Inspectors is done by a subordinate selection
body and not by Public Service Commission yet no valid reason has
been given before us by learned counsel for the respondents as to
why the principle enunciated in Ashok Kumar Yadav case should not
be applied in these cases as well. Even if Ashok Kumar Yadav case
may not in terms apply in the cases before us to the extent of laying
down 12.2 per cent of the total marks for viva voce test which was
made applicable for selections to be made by UPSC, we deem it
proper to lay down after taking in view the dictum of all the authorities
decided so far that the percentage of viva voce test in the present
cases at 25 per cent of the total marks is arbitrary and excessive.
There could be no gainsaying that viva voce test cannot be totally
dispensed with, but taking note of the situation and conditions
prevailing in our country, it would not be reasonable to have the
percentage of viva voce marks more than 15 per cent of the total
marks in the selection of candidates fresh from college/school for
public employment by direct recruitment where the rules provided for
a composite process of selection namely written examination and
interview.
18.
Under the circumstances, we feel that it cannot be laid down as a matter of law that written test
must be held in all cases for selection of candidates for employment in public service. It depends on several
factors. In the presents case, inasmuch as the candidates had already passed their graduation in law and
who were also required to have practised as a legal practised as a legal practitioner for at least three years
and as the statutory rules framed by the Governor under Art.234 did not prescribe any compulsory written
test and as the Rule enjoins upon the State Public Service Commission that the interview committee must
include sitting High Court Judge and in view that the mandate of the apex court in paragraph 31 in Ashok
Kumar Yadav's case was fully and completely complied with, we do not think that selection based only on
viva voce test in the facts and circumstances of the case is vitiated in any way. It is an admitted position
that the written test held by the MPSC was only for the purposes of scrutiny with a view of short-listing the
candidates. In view of the fact that identical procedure with reference to this state in respect of these very
posts was approved by the apex court in the case of State of Maharashtra V. Arun Kumar and other, already
referred to above, we do not find any force in the submission that the marks obtained in the written test for
scrutiny ought to have been considered.
19.
The further challenge is on the basis of the fact that interview committee consisted of different
members for different batches of candidates. The submission is that in view of different compositions of
interview committee the evaluation must have been different for different candidates and this also results in
or each of provisions of Art. 14 of the Constitution of India. In the behalf the learned Counsel for the MPSC
placed before the Court the rules framed by the Commission to regulate the internal procedure work. Rule 3
provides that the work coming before the Commission be dealt with either by the Commission or by a
Committee of one or more members formed under Rule 4(1) or by the Chairman as provided by the rules.
Rule 4 provides that the Chairman shall constitute, reconstitution the committee of one or more members,
including the Chairman an assign to each committee specific items of work. The Chairman may in like
manner make a change in the work assigned to such committee. Sub clause (2) of Rule 4 provides that the
committee so formed shall remain in operation till they are reconstituted by the Chairman. Under rule 8 sub
cause (4) where recruitment to any post is required to be made by nomination, for the purpose of interview
of the applicants selected for interview under sub rule (1) the Chairman may constitute interview committee
consisting of the Chairman and/or one or more members. Under sub rule (7) the President of the Interview
Committee shall communicate to the Secretary the decision of the Interview Committee who shall draw up
the minutes of the selection and submit them to the members of the interview committee for their approval.
Under sub rule (8) of rule 8 the minutes thereafter are circulated among other members of the commission
for their approval and after approval is received necessary recommendations against the vacancies shall be
sent to the government in accordance with the minutes no approved. Under the rules, therefore, it is for the
Chairman of the MPSC to constitute the interview committee. There is also power to reconstitute the same.
20.
Undoubtedly, as admitted in the affidavit-in-reply, the composition of the interview committee
was different on different dates. Now, normally, the Interview Committee should consist of the same
individuals as members so that each candidate is judged by an identical panel. However, in this behalf it
may be useful to refer to some observations made by the Supreme Court in the case of Ashok Kumar
Yadav. In paragraph 18, after referring to the judgment of the Supreme Court in A.K. Kaipak's case the
Supreme Court observed as under:
" But the situation here is a little different. Because the selection of
candidates to the Harayana Civil Service (Executive) and Allied
Services is being made not by any Selection Committee constituted for
that purpose but it is being done by the Harayana Public Service
Commission which is a Commission set up under Art. 316 of the
Constitution. It is a specified number of Members and is a constitutional
authority. We do not think that the principle which requires that a
member of a Selection Committee whose close relative is appearing for
selection should decline to become a member of the Selection
Committee or withdraw from it leaving it to the appointing authority to
nominate another person in his place, need be applied in case of a
constitutional authority like the Public Service Commission, whether
Central or State. If a member of a Public Service Commission were to
withdraw altogether from the selection process on the ground that a
close relative of his is appearing for selection, no other person save a
member can be substituted in his place. And it may some times happen
that no other member is available to take the place of such member ad
the functioning of the Public Service Commission may be affected.
When two or more members of a Public Service Commission are
holding a viva voce examination, they are functioning not as individuals
but as the Public Service Commission. Of course, we must make it
clear that when a close relative of a member of a Public Service
Commission is appearing for interview, such member must withdraw
from participation in the interview of that candidates and must not take
part in any discussion in regard to the merits of that candidate and even
the marks or credits given to that candidate should not be disclosed to
him.
21.
In view of the fact that under the rules the appointment to the judicial posts concerned is to be
made by the Governor in consultation with the Public Service Commission an in view of the fact that each
member of the Public Service Commission holding viva voce examination functions not as individual but as
Public Service Commission, it cannot be stated as a matter of law that change in the composition of the
Interview Committee of the Public Service Commission per results into arbitrariness. No other person than
the duly appointed member of the Interview Committee. Under the circumstances, the power exercised by
the Chairman of the Public Service Commission to constitute and reconstitute the Interview Committee is
reasonable. The members of the Public Service Commission are appointed on the basis of large
administrative experience as also proven eminence in the administrative field. Under the circumstances, the
substitution of one member by another member of MPSC per as will not be sufficient to vitiated the
evaluation by such an Interview Committee on the ground of different candidates. Secondly, not only Smt.
Patil, Chairperson of MPSC was present throughout the interviews of all the candidates but the
recommendations of the Selection Committee also were accepted unanimously by all the members of the
Commission. Thirdly, admittedly the Sitting High Court Judge, whose opinion, as per the direction of the
apex Court in ordinarily binding on the Maharashtra Public Service Commission, was not only present all
throughout the interviews on each and every day but his opinion was accepted and the final list was
approved not only by all the members of the MPSC but also by the Honourable Judge. In name of the
petitions any personal bias or mala fide are alleged against any of the members. Under the circumstances,
we cannot use any prejudice having been suffered by either the petitioners or other candidates in the matter
and consequently the final list of recommendations cannot be vitiated on this ground.
22.
It was also submitted that the interviews lasted hardly for three to five minutes. Apart from the
fact that this period, whether it was three to five or ten minutes, cannot be accurately stated by the
petitioners nor could be recorded in respect of each candidates we do not think that there can be any hard
and fast rule regarding the period of interview. In paragraph 20, in the case of Ashok Kumar Yadav, the
Supreme Court has undoubtedly observed that if a viva voce test is to be carried out in a thorough and
scientific manner, as it must be, in order to arrive at a fair and satisfactory evaluation of the personality of
the candidate, the interview must take anything between ten to thirty minutes. However, we do not think
that mere fact that the interviews were allegedly not held for more than three to five minutes in respect of a
particular candidates, it would vitiate the entire selection process.
23.
In writ petition No. 4133/1991 additional ground was pressed in service to the effect it was
obligatory upon the State and also the Commission to complete the backlog of the backward class
candidates in the reserved category. It was faintly suggested that so far as the backward class candidate
are concerned, they ought to have been selected so as to wipe up the backlog. It is very difficult to
candidate the submission because even though there can be reservation in respect of backward class
candidates, the minimal ability and suitability for being appointed to a particular post cannot be dispend with,
Apart from that it is pointed out in the affidavit-in-reply in W.P. No. 207 of 1992 that 54 posts of Civil Judges
(JD) and Judicial Magistrate (FC) were exclusively reserved for candidates belonging to backward classes
and thereafter applications for additional 200 posts for all categories were invited. It is further mentioned
that out o about 484 candidates who were interviewed, final list of recommendations consists of 254. It is
mentioned that out of 254, 54 posts were exclusively reserved for reserved candidates whereas out of 200
posts for all categories 68 posts were reserved as per 34% quota. The affidavit further states that in respect
of 61 posts reserved for Scheduled Tribes, only 10 applications were received and only six survived the
scrutiny by the written test qualifying for interview and out of them only two candidates can be
recommended after interview for appointment. As the reservation in respect of Scheduled Tribe candidates
is absolute, no other candidate, not belonging to the Scheduled Tribes, could be recommended. It is further
mentioned in the affidavit-in-reply that so far as the reservation for the Scheduled Caste candidates is
concerned, the candidates belonging to Scheduled castes for all the reserved posts have been
recommended. Under the circumstances, no fault could be found with the recommendations on this count
also.
24.
All the petitions, therefore, stand rejected.
At this stages, S/Shri V.R. Patil and S.B. Kulkarni, Advocates, appearing for the petitioners, prayed for
leave to file an appeal to the Supreme Court. In the facts and circumstances of the case, we reject the
application.
***
Advertisement should Specify the post
ILR 1985 Karnataka 4195
Gayathri Vs. Karnataka Public Service Commission
Held – Though the cadre and recruitment rules puts the posts of Lecturers in one entry, it has got
to be read as many entries as there are subjects, namely, Lecturers in Chemistry, Lecturers in Physics,
Lecturers in English, Lecturers in History and so on, and, for each category of the above posts, the minimum
qualification prescribed is First or Second Class Master's degree in the concerned subject. Therefore, when
the posts of Lecturers are advertised inviting applications, the Commission should specify the number of
posts in each subject and the reservation should also be specified subjectwise following the roster
prescribed in Appendix-II. This is the only way of ensuring equality of opportunity in matters relating to
employment guaranteed under Article 16(1) of the Constitution.
ORDER
Rama Jois, J.
In this Writ Petition in which the petitioner has questioned the legality of the selection, made by the
Karnataka Public Service Commission ('the Commission' for short), of persons for appointment as Lecturers
in the Department of Collegiate Education of the State Government, the following question of law arises for
consideration.
Whether in making selection for appointment to the cadre of Lecturers in the Collegiate Education
Department of the State Government the reservation of posts provided for by the State Government by an
order made under clause (4) of Article 16 of the Constitution should be effected subjectwise and whether if it
is given on the basis of total number of posts in respect of which selection is made by the Commission, it
would be violative of Article 16(1) of the Constitution?
2. The facts of the case, in brief, are as follows: The petitioner passed M.Sc., Degree in Physics
of the Mysore University in I Class. The Commission, by its notification dated 20.1.82 invited applications
for 59 (fifty nine) posts of Lecturers in the department of Collegiate Education in different subjects specified
in the notification. The relevant portion of the notification reads:
"xxx
xxx
xxx
Statement showing the particulars of the posts for which applications are called for:
xxx
2. No. of vacancy/ies advertised,
designation of the vacancy/
vacancies and department
xxx
xxx
59 posts of Lecturers in the Department
of Collegiate Education in the following
subjects:
English
:
07
Kannada
:
06
Telugu
:
01
Urdu
:
01
History
08
Economics
:
Political Science :
06
Sociology
:
02
Geography
:
01
Commerce
:
09
Physics
:
07
04
Chemistry
:
02
Mathematics
:
02
Botany
:
02
Geology
3. Scale of pay
:
:
01
Rs. 750-50-1000-60-1300-75-1525
GROUP-B
4. Minimum qualification prescribed
for the posts
Xxx
5. Classification of Vacancies
Gazetted : Must be a holder of a degree
not lower than a second class Master's
degree of a University established by law
in India with the concerned subject as a
major subject at the master's degree level.
xxx
xxx
Ex-MP
SCs
STs
BTs
BCT
BSG
BCM
GM
6 posts
7 posts
1 post
3 posts
4 posts
8 posts
10 posts
20 posts
---------59 posts
---------Among Ex-MPs SCs-2, STs-1, BCM-1,
BCT-1 and BSG-1.
Xxx
xxx
xxx
-------------------------------------------------------------------------------------------------------As may be seen from the notification reservation in favour of backward classes is provided for on the basis
of total number of posts.
2a. The petitioner being eligible to compete for selection for the post of Lecturer in Physics
submitted her application to the Commission. She was called for interview by the Commission and was
interviewed. Thereafter, the list of selected candidates was published as per the notification dated 18th June
1983, copy of which is produced as Annexure-C which has been produced along with memo dated
13.1.1984. The petitioner was not selected. Aggrieved by the said selection, the petitioner has presented
this petition.
3. The challenge to the legality of the selection made by the Commission is on the following basis :
The posts of Lecturers in different subjects in the Collegiate Education Department carried an identical pay
scale of Rs. 750-50-1000-60-1300-75-1525. A candidate for being eligible for the post of Lecturer in a
particular subject has to possess a Master's degree in the concerned subject not lower than second class of
a University established by law. Though applications were invited for 59 posts of Lecturers in identical pay
scale in a common advertisement, still the eligibility of candidates is distinct and separate in respect of each
of the subjects. In other words, a candidate possessing Master's degree like the petitioner could compete
only for the posts of Lecturers in Physics as she is not eligible for selection for the posts of Lecturer in any
other subject. That being the position, the reservation of posts in favour of persons belonging to S.C., S.T.
and other backward classes, as provided for by the State Government, should have been provided for
subjectwise and the failure to do so has resulted in denial of equality of opportunity in matters relating to
employment under the State guaranteed to the petitioner under Clause (1) of Article 16 of the Constitution.
4. In order to demonstrate as to how the petitioner has been adversely affected on account of the
manner of reservation provided for, the petitioner has further a statement consisting of the following
particulars.
No.of No.of candidates selected in each category
posts GM BCG BT BCM BSG SC ST EX.MP
Subject
English
07
7
Kannada
Telugu
-
-
06
-
01
Urdu
08
Economics
07
-
1
-
3
-
2
1
01
History
-
1
-
-
-
-
-
-
2
-
-
2
2*
2
-
7
-
-
-
-
6
-
1
-
1
2
-
-
1
2
2
1
2*
8
Political Science 06
2
-
-
-
2
-
-
1
Sociology
-
-
-
-
2
1
-
-
02
Total
-
8
6
3
Geography
01
-
-
-
1
-
Commerce
09
7
1
Physics
04
1
Chemistry
02
Mathematics
-
-
1
-
-
1
-
-
-
9
2
-
2
-
-
-
-
5*
-
-
-
-
1
1
-
-
2
02
1
-
-
1
-
-
1
-
3*
Botany
02
-
1
-
1
-
1
-
-
3*
Geology
01
-
1
-
-
-
-
-
1
1
23
7
11
9
3
-
9
2
1
65
*In excess of the number of vacancies advertised."
5. Learned Counsel for the petitioner stated that the method of reservation followed by the
Commission has resulted in the denial of equal opportunity in relation to selection for appointment and in
this behalf submitted as follows: In the subject of English as against 7 posts, all the seven posts have been
made available to general merit. Similarly in the subject of Commerce for 9 posts, 7 posts have been made
available for general merit. In the case of Physics, though 4 posts were advertised actual selection has
been made for 5 posts. In respect of these 5 posts, one candidate belonging to general merit and two
candidates each belonging to backward caste and backward community have been selected. If the
reservation was effected subjectwise and the Government. Order regarding the roster required to be
followed in relation to direct recruitment was observed, as no candidate belonging to backward special
group was available for selection against the 5th vacancy earmarked in the roster for backward special
group, the petitioner was entitled to be selected against the said vacancy in view of paragraph 6 of the
Government Order dated 4th March 1977 which regulates the reservation of posts.
6. To the petition, the petitioner has impleaded the five candidates selected for appointment as
Lecturers in Physics as respondents 3 to 7. But if the contention of the petitioner that the reservation was
required to be effected on subjectwise basis were to be accepted, the entire selection would have to be
redone by the Commission. In the circumstances, when the matter came up for preliminary hearing on 20 th
July 1983, the learned Counsel for the petitioner sought permission to prosecute the Writ Petition in a
representative capacity and accordingly made an application under Order 1, Rule 8 of the Code of Civil
Procedure.
7. As the question raised in the Petition is one of general importance and affects large number of
persons seeking selection for appointment before the Commission wherever reservations are made on the
basis of the total number of posts even though the eligibility of candidates is distinct and separate, the
application was allowed on 20th July 1983 and the petitioner was permitted to prosecute the Petition in a
representative capacity. The petitioner was also directed to take a notice by publication in Deccan Herald
English daily, calling upon persons interested either to supporting or opposing the Petition to apply to this
Court to be made a party on or before 1st September 1983. In terms of the said order, a Public notice has
been issued. However, no one has applied for being impleaded as a party.
8. On facts, there is no dispute in this case. If the reservation provided for by the Commission on
the basis of total number of posts of Lecturers in respect of which selection is made, is not discriminatory
the procedure followed by the Commission as laid down in the Government Order dated 6 th October 1981
issued pursuant to the judgment of this Court in Annegowda –vs- Karnataka Public Service Commission,
would be in accordance with law. If, on the other hand, the Commission was bound to follow the roster,
prescribed for regulating reservation of posts while making direct recruitments, the petitioner was entitled to
be selected against one of the five posts of Lecturers in respect of which the selection has been made by
the Commission. It is in view of this position, the question of law set out first arises for consideration.
9. The recruitment to the posts of Lecturers in the Department of Collegiate Education is regulated
by the Rules called the Karnataka Education Department Services (Collegiate Education Department)
Cadre and Recruitment Rules, 1964. The relevant portions of the Rules concerning the posts of Lecturers
reads as follows:
"SCHEDULE
Category
Of posts
9. Lecturers
Method of
Recruitment
Xxx
xxx
50% by direct recruitment
Minimum qualifications and
period of probations
xxx
xxx
For Direct Recruitment:
50% by promotion of Demonstrators and Tutors subject to
their possessing a II Class
Master's degree in respective
Subjects.
I or II Class Master's degree
Age: Relaxable upto 33 years in
case of persons with teaching
experience. No age limit in case
Of Government Servants in
service
Probation: One year. "
There is no dispute that though the entry relating to posts of Lecturers is one entry in the Recruitment Rules,
the posts of Lecturers exist in different subjects according to the subjectwise requirement of the Colleges as
assessed and determined by the Head of the Department. Therefore, whenever requisition is sent by the
Head of the Department to the Commission not only the total number of posts of Lecturers required has to
be specified, but also the number of posts of Lecturers in each subject has got to be specified. There is also
no dispute that a person possessing master's degree qualification in the concerned subject only, is eligible
for being selected as Lecturer in the concerned subject and consequently the competition for purposes of
selection would naturally be among the aspirants for the posts Lecturers in the concerned subject.
10. Now coming to the provision of the Government Order providing for reservation of posts under
Class (4) of Article 16 of the Constitution, the procedure required to be followed in making selecting
adhering to reservation of posts have been laid down in the Government Order dated 4th March, 1977. The
relevant portion of the Government Order reads:
"GOVERNMENT OF KARNATAKA
Sub: Classification of backward classes for purposes of reservation of
Appointments and posts under Article 16(4) of the Constitution.
READ:
(1)
(2)
(3)
(4)
(5)
Government Order No.GAD 17 SRR 74, dated 29th July 1974
Government Order No.GAD 6 SBC 75, dated 3rd May 1975
Official Memorandum No.GAD 6 SBC 75, dated 31st October 1975
Government Order No.GAD 2 SBC 75, dated 9th July 1975
Government Order No.SWL 12 TBS 77 dated 22nd February 1977.
ORDER NO.DPAR 1 SBC 77, BANGALORE
DATED: 4TH MARCH, 1977
In the Government order dated 9th July 1975, orders were issued in supersession of all the earlier
orders for making reservations in appointments and posts in the State Civil Services for S.C., S.T. and other
Backward Classes and citizens not adequately represented in the State Civil Services. In the Government
Order dated 22nd February 1977 Government after considering the recommendations of the Backward
Classes Commission, have determined under Article 16(4) of the Constitution of India the backward classes
of citizens who are not adequately represented in the State Civil Services and have directed that reservation
in appointments and posts shall be made for these classes to the extent indicated in that order. These
reservations will be in addition to the reservations of 15 percent for S.C. and 3 percent for S.T.
(2) Accordingly, Government are pleased to direct that reservations in appointment and posts in
the State Civil Services shall be made or the following classes of citizens to the extent indicated against
them.
I. (1) Scheduled Caste, as defined in the Constitution of India … 15%
(2) Scheduled Tribes, as defined in the Constitution of India … 3%
II. Other Backward Classes viz.,
(1) Backward Communities
… 20%
(2) Backward Castes
… 10%
(3) Backward Tribes
… 5%
(4) Special Group
… 5%
The expressions Backward Communities, Backward Castes, Backward Tribes and Special group
mentioned in item II above, shall have the same meaning as in the Government Order No.SWL 12 TBS 77,
dated 22nd February 77. these are indicated in Appendix-I to this Government Order.
(3) Appointments and posts in the State Civil Services shall, hereafter, be reserved for the S.C.
S.T. and other Backward Classes to the extent of the percentages indicated in para 2. The reservations
shall be made for each category of posts, under each appointing authority according to the percentages
indicated. For the purpose of making reservations and calculating the number of vacancies to be reserved
for each category of Backward Classes indicated in para 2, a rotation of 100 vacancies shall be followed for
each category of posts under each appointing authority. The rotation of vacancies shall be as indicated in
Appendix-II to this Government Order. The rotation of vacancies shall be a running account till the
hundredth vacancy is reached. For example, if on the first occasion of recruitment, 21 posts have been
filled on the next occasion of recruitment the classification will start from 22nd point and so on. All appointing
authorities shall maintain separate Registers indicating the rotation for each category of posts under them.
The appointing authorities shall intimate to the Public Service Commission other selecting authorities the
number of vacancies to be filled by direct recruitment duly classified in accordance with the rotation
indicated in Appendix-II.
4. The Karnataka Public Service Commission or other selecting authorities shall, for the purpose
of ensuring proper reservations ordered in this Government Order, follow the mode of selection indicated in
Appendix III to this Government Order.
5(a) If in a recruitment to a category of posts or service persons belonging to the S.C. or S.T. who
are suitable for appointment are not available for being selected for vacancies reserved for such Castes or
Tribes such vacancies shall be filled by selection of candidates belonging to the Backward Communities or
Backward Castes in the ratio of 2:1 as far as possible. If candidates belonging to the Backward
Communities or Backward Castes are not available the said vacancies may be filled up on the basis of
general merit. In such cases when the vacancies reserved for S.C. or S.T. are filled by candidates not
belonging to these castes or Tribes, the vacancies lost S.C. or S.T. shall be carried to the next occasion of
recruitment to the same category of posts or services.
(b) On the second occasion of recruitment vacancies shall be reserved for S.C. S.T. and other
Backward Classes in accordance with the provisions of this Order. Out of the vacancies so reserved for the
Backward Communities and Backward Castes, the number of vacancies carried forward in accordance with
Clause (a) shall be deducted in the same reason as in the said clause and added to the number of
vacancies reserved for S.C. and/or S.T. as the case may be. Vacancies so reserved shall be filled as
indicated in para (a), if suitable candidates belonging to the S.C. and S.T. are not available. The vacancies
filled by candidates not belonging to these Castes and Tribes, shall be carried forward to the next
recruitment.
(c) On the third occasion of recruitment to the same category of posts or service. The number of
vacancies reserved for S.C. and S.T. carried forward from the second occasion of recruitment in accordance
with clause (b) shall similarly be added to the number of vacancies reserved on the third occasion for S.C.
and S.T. and the number reserved for Backward Communities and Backward Castes similarly reduced.
(d) If on the third occasion of recruitment the vacancies reserved for S.C. and S.T. on that occasion
and those carried forward from the first and second occasions cannot be filled by reason of the nonavailability of suitable candidates belonging to the S.C. and S.T. such vacancies shall be filled by selection
of suitable persons on the basis of general merit and there shall be no further carry forward of vacancies to
the next occasion of recruitment.
(6) In a recruitment to a category of posts or service if persons belonging to the Backward Tribes or
the Special group are not available for being selected for the vacancies reserved for them, such vacancies
shall be filled by selection of candidates on the basis of general merit."
It may be seen from paragraph-3, the reservation of posts to the extent provided for in the Government
Order is required to be made for each category of posts under each appointing authority and in the matter of
implementing the reservation of posts the roster prescribed in appendix-II to the Government Order was
required to be follows. Appendix-II annexed to the said Government Order was replaced by Government
Order dated 26th September 1979. The Appendix-II to the Government Order 4.3.1977 as substituted by
Government Order dated 26th September 1979 reads:
"1. R:SC 2. R:ST 3. G:M
4. R:BCM
5. R:BSG
6. R:SC
7.
11. R:BSG
12. GM 13. R:SC
16. R:BCM
17. R:BCT
18. R:BT 19.
21. R:BCM
22.
23. R:BSG
24.
GM
25. R:BCM
26.
GM
27. R:SC
28. :GM
29. R:BCT
30. R:BCM
31.
GM
32. R:BSG
33. R:ST 34. R:SC
36. R:BT
37. R:BCM
38. :GM
39. R:BCT
40. :GM
41. R:SC
42. R:BSG
43. :GM
44. R:BCM
45. :GM
46. R:BSG
47. :GM
48. R:SC
49. R:BCT
50. :GM
51. R:BCM
52. :GM
53. R:BSG
54. R:BT 55. R:SC
56. :GM
57. R:BCM
58. :GM
59. R:BCT
60. R:BSG
61. :GM
62. R:SC
63. R:BCM
64. :GM
65. R:BSG
66. R:ST
67. :GM
68. R:BCM
69. R:SC
70. :GM
71. R:BCM
72. R:BT 73.
76. R:SC
77. :GM
78. R:BSG
79. :GM
80. R:BSG
81. R:BCM
82. :GM
83. R:SC
84. R:BSG
85. :GM
86. R:BCM
87. R:BSG
88. :GM
89. R:BCT
90. R:SC
91. R:BT
92. R:BSG
93. R :BCM
94. :GM
95. R:BCT
96. R:BSG
97. R:SC
98. :GM
99. R:BCM
100. R:BCT
N.B.
: G.M.
: General Merit
34
R
:BCM
: Reserved for Backward Communities
18
R : SC
GM 8. R:BCT
GM
:GM
9.
GM 10. R:BCM
14. R:BSG
GM
74. R:BCM
: Reserved for Scheduled Castes
15.
20. R:SC
35. GM
75. :GM
15
R : BCT
: Reserved for Backward Castes
10
R
: BT
: Reserved for Backward Tribes
05
: BSG
: Reserved for Backward Special Group
15
: Reserved for Scheduled Tribes
03
R
R : ST
GM
--100
--In Appendix-III to the Government Order Mode of Selection was prescribed. It reads:
MODE OF SELECTION
(a) The appropriate Selecting Authority shall first prepare consolidated list of all eligible applicants
irrespective of classes to which they belong arranging them in the order of merit (hereinafter called the First
List.
(b) The Selecting Authority will then prepare from out of the First list a Second list (hereinafter
called the Second list) containing the names of applicant equal to the number of posts to be filled up on the
basis of general merit (i.e. the number of posts other than those reserved in favour of S.C. S.T. and other
Backward Classes) arranging them in the order of merit commencing with the name in the First List.
(c) The Selecting Authority will then prepare from out of the First list excluding the portion forming
the Second List, a Third List, (hereinafter called the Third List) containing the names of applicants belonging
to the S.C. S.T. Backward Communities, Backward Castes, Backward Tribes and Special Group equal to
the number of vacancies reserved for each category in the order of merit determined in the First List.
(d) The Selection Authority will then prepare a final list of selected candidates for appointment to
the category of posts for which selection is made by arranging the names of candidates included in the
Second List and the Third List in the order of merit."
Obviously, the above mode of selection was prescribed having regard to the selection required to be made
to posts for which common conditions of eligibility were prescribed in the relevant rules of recruitment. Even
though the same mode of selection was impracticable and inapplicable to a cadre like that of Lecturers
which consisted of posts of Lecturers in different subjects and consequently with different conditions of
eligibility the Commission was following the said procedure as no other procedure was prescribed. The
following of that procedure had resulted in defeating the reservation of posts. In the circumstances,
candidates who were denied selection against posts reserved for the concerned backward class category,
to which they belonged, had questioned the legality of the procedure followed by the Commission. That
question was considered in the case of Annegowda. Thereafter, again the matter came up for consideration
in Munireddy –vs- K.P.S.C. In both these judgments, it was held that the mode of selection prescribed in
Appendix III was inapplicable to the cadres which consisted of posts with different conditions of eligibility. It
was further held that even though the Commission was effecting reservation of posts on the basis of total
number of posts advertised and not on subjectwise basis while making selection for the post of Lecturers,
the Commission was bound to select such number of candidates belonging to S.C., S.T. and other
backward classes as are equal to the number of posts reserved and it was only after providing for available
candidates falling under the reserved category in the subjects for which they were eligible, the Commission
could proceed to make the selection of candidates under general merit.
11. In implementation of the above judgment, the State Government has issued the order dated 6th
October 1981 on which reliance is placed in the Statement of objections. The said Government order reads:
"PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA
Sub: Reservation of vacancies for SCs/STs and other categories of
Backward Classes under Article 16(4) of the Constitution of
India – Mode of selection to teaching posts in the Departments
Of Collegiate Education and Medical Education.
READ:
Government Order No.DPAR 1 SBC 77, dated 4.3.77.
PREAMBLE:
Selections to post under the State Civil Services were being made by Selecting Authorities
following the Mode of selection prescribed in Appendix-III to the Government Order dated 4.3.1977 read
above. It has come to the notice of Government that there is difficulty in selecting candidates to posts like
Lecturers in the Department of Collegiate Education and Medical Education following the mode of selection
prescribed in Appendix-III to Government Order dated 4.3.1977 as while making recruitment to such posts.
Classification of vacancies for reservation of posts in favour of S.C./S.T. and backward classes is made on
the basis of total number of posts but selection is required to be made subjectwise.
The High Court of Karnataka while disposing the case in Writ Petition No.810 of 1979 has
suggested a procedure to be followed in making selection to posts like Lecturers where selection in more
than one subject is required to be made and posts are reserved in favour of S.C., S.T. etc., on the basis of
total number of posts.
ORDER
Considering the difficulties and the suggestions made by the High Court as indicated above,
Government are pleased to direct that in partial modification of the Orders issued in para 4 of the
Government Order No.DPAR 1 SBC 77, dated 4.3.1977 the Mode of Selection to teaching posts in the
Departments of Collegiate Education and Medical Education shall be as indicated below:
Mode of Selection to teaching post in Departments of
Collegiate Education and Medical Education.
(a) The appropriate Selection Authority shall first prepare consolidated list of all eligible applications
irrespective of classes to which they belong, arranging them in the order of merit (hereinafter called the First
List).
(b) The Selecting Authority will then prepare from out of the First List, a Second List (hereinafter
called the Second List) selecting the best among the candidates eligible for selection against the posts
reserved for each category, namely, S.C., S.T. Backward Communities, Backward Castes, Backward Tribes
and the Special Group, but having regard to the subject in which vacancy exists upto the extent of posts
reserved for each of these categories.
(c) Thereafter the Selecting Authority will prepare from out of the First list excluding the names
forming the Second List, a Third List (hereinafter called the Third list) selecting candidates strictly according
to merit, but having regard to the subject in which vacancy exists upto extent of posts reserved for general
merit category.
(d) The Selecting Authority will hen prepare the final list of selected candidates for appointment to
the category of posts for which selection is made by arranging the names of candidates included in the
Second List and the Third List in the order of merit.
By Order and in the name of the Governor of Karnataka,
Sd/A.K.Someshwar,
Dy. Secretary to Govt.,
D.P.A.R. (Service Rules)."
There is no dispute that the Commission has strictly followed the said Government Order in making the
impugned selections.
12. As stated earlier, in the earlier two judgments, referred to above, the reservation of posts
provided for on the basis of total number of posts advertised and not on subjectwise basis, was not
questioned. The only limited question raised in those petitions was: Whether the procedure prescribed in
Appendix-III to the Government Order dated 4th March 1977 was applicable and by following the said
procedure the reservation of to the cadre of Lecturers having regard to the Special features of the cadre,
namely, subjectwise requirement and subjectwise eligibility. In the said judgments it was held that the said
procedure was in applicable and by following the said procedure the reservation of posts provided for was
adversely affected and as it was obligatory for the Commission to respect the reservation first and make the
selection next the candidates eligible for selection against reserved posts should be selected first to the
extent of reservation.
13. In the present case, as already pointed out, the contention of the petitioner is, though the posts
of Lecturers constitute one cadre according to the recruitment rules, having regard to the factual position,
namely, that the said cadre consists of Lecturers in different subjects and the constitution of eligibility for
being selected for appointment to the post of Lecturer in particular subject is the possession of the Master's
degree in the concerned subject, the posts of Lecturers in each subject has to be considered as a separate
and distinct category and the reservation has got to be provided for having due regard to the roster fixed in
Appendix-II to the Government Order dated 4th March 1977.
14. It appears to me that the contention of the petitioner is well founded. Though the cadre and
recruitment rules puts the posts of Lecturers in one entry, it has got to be read as many entries as there are
subjects, namely, Lecturers in Chemistry, Lecturers in Physics, Lecturers in English, Lecturers in History
and so on, and, for each category of the above posts the minimum qualification prescribed is First or
Second Class Master's degree in the concerned subject. Therefore, when the posts of Lecturers are
advertised inviting applications, the Commission should specify the number of posts in each subject and the
reservation should also be specified subjectwise following the roster prescribed in Appendix II. This is the
only way of ensuring equality of opportunity in matters relating to employment guaranteed under Article
16(1) of the Constitution. To a candidate who belongs to general merit and who applied for the post of
Lecturer in a particular subject in which he has the Master's Degree, if all the posts of lecturers in that
subject are made available for reserved candidates on the ground that candidates belonging to reserved
category available have master's degree in that subject the candidate belonging to general merit stands
denied of the right guaranteed under Article 16(1) of the Constitution. The fact that in some other subjects
all the posts are made available to candidates belonging to general merit is no answer to his plea of denial
of equal opportunity. Therefore, the only method by which the right guaranteed under Article 16(1) of the
Constitution of India could be ensured is to provide reservations subjectwise.
15. In fact, a similar question, namely, whether the posts of Readers in each subject should be
treated as a separate category and the reservation of posts should be effected in respect of each subject
separately had come up for consideration in the case of Syda Husna Banu –vs- State. The writ petition was
allowed on 21st November 1973 and it was held that the posts of Lecturers in each subject has to be treated
as a separate category and the reservation should be effected on subjectwise basis. That judgment was
taken in Appeal before a Division Bench of this Court in Writ Appeal No.63 of 1974. The Writ Appeal was
dismissed by judgment dated 8th April 1983. The relevant portion of the judgment reads:
"6. From the scheme provided for selection it will be seen that the basis for selection or a Reader
being the aggregate marks obtained in the qualifying examination plus the marks obtained at the interview,
the selection to the post of Reader in Political Science can only be subjectwise. Since the qualifying
examination for Readers in different subjects are quite different, it is not possible to acceded to the
contention of the learned Advocate General that all posts of Readers must be taken as one unit for the
purpose of making reservation. If such a contention is accepted, then it is conceivably possible that al
candidates included in such a list may be those who are qualified to teach only one subject, as against the
selection required to be made for different subjects. The resultant position would then be that in the list
prepared by treating all the posts of Readers as one unit, irrespective of the subject, candidates qualified in
different subjects may not get themselves included in the list. Secondly, it selection of all posts of Readers
is treated as an unit and aggregate marks obtained in the qualifying examination and at the interview is the
basis of selection, then there might be more number of candidates for teaching a particular subject than the
number of vacancies available and thirdly, there may not be a selection of a candidate for certain subjects
though the vacancies are available. Thus, the very object of selecting candidates, who have proficiency in
particular subject for appointment will be defeated. Hence, we have no hesitation to affirm the view taken by
the learned Single Judge that the selection should be subjectwise.
(7) Next, we will have to examine the mode of giving effect to the reservation orders if the selection
is subjectwise
(8) Para 1 of the Government Order No.GAD 42 SRR 69-1, dated 6th September 1969 issued
under Article 16(4) of the Constitution provided for reservation of 3, 15 and 30 percent in favour of S.C. S.T.
and Backward Classes respectively in all appointments and posts under the State Civil Services. As per
para 4 of the said Order all vacancies to be filled by direct recruitment were required to be classified and
arranged according to the reservation made for S.C., S.T. and Backward Classes, keeping 33 vacancies as
an unit, in the manner indicated in Annexure-I of the Order. Annexure-I set out roster providing the mode in
which an appointment can be made to a particular cadre of post.
(9) Paras 4 to 7 of this Government Order were amended by a subsequent Government Order
No.GAD 25 STR 71 dated 17.5.1971. The substituted para 4 provided for specification of percentage of
reservation made for S.C. & S.T. and other classes, in all vacancies to be filled up by direct recruitment in
any calendar year.
(10) Para 7(1) and (b) provided for reservation in favour of the S.C., S.T. and Backward Classes
while making appointment by competitive examination to Class I, II and III Posts. Para 7(A) which is
relevant for the purpose of this case reads thus:
"7(A) Notwithstanding he percentage of reservation specified in paragraph-I:
(a)(i) One vacancy or two vacancies as the case may be shall be reserved for candidates
belonging to the S.T. where the total number of vacancies to be filled at any recruitment, is
not less than five and not more than twenty or not less than twenty one and not more than
twenty or not less than twenty one and not more than forty s the case may be;
(ii) One vacancy or two vacancies as the case may be shall be reserved for candidates
belonging to the S.C. where the total number of vacancies to be filled at any recruitment is
not less than five and not more than seven or not less than eight and not more than
fourteen as the case may be;
(b) When any vacancy or vacancies are reserved for candidates belonging to the S.T. &
S.C. under Sub-clause (i) and (ii) or clause (a) such number of vacancies if any shall be
reserved for candidates belonging to other backward classes so that the total reservation in
favour of S.T., S.C. and other Backward Classes shall not exceed forty eight percent of the
total number of vacancies to be filled in such recruitment.
Annexure-I to the Government Order dated 5th September 1969 was omitted, thereby the process of
appointment by roster system stood deleted. The deletion of roster system and insertion of para 7A made it
impossible to provide for reservation when the posts are less than the number mentioned therein. It would
have been possible for the State Government and the KPSC to adopt roster system, if it had not been
deleted, to give effect to reservation treating the recruitment subjectwise. The hindrance created by these
Government Orders cannot be a good ground to treat a post as a Departmentwise instead of subjectwise for
the purpose of recruitment. The unworkable procedure provided for in the subsequent order dated 17 th May
1971 cannot be the basis for a bad precedent. By reason of deletion of the roster system, as provided in
Annexure-I to the Government Order dated 6.9.1969 and insertion of para 7A by the subsequent
Government Order dated 17th May 1971, what follows is that the reservation had to be provided depending
upon the number of vacancies to be filled up and in that process evidently no reservation could be made in
recruitment of two posts of Readers in Political Science.
11. The Government having realized the folly has thereafter reintroduced the roster system in its
subsequent reservation Orders the latest of which being the Government Order No.DPAR 1 SBC 77, dated
4th March 1977, Para 3 of the said Government Order reads thus:
"3. Appointments and posts in the State Civil Services shall, hereafter, be reserved for
the S.C., S.T. and other backward classes to the extent of the percentage indicated in para
2. The reservations shall be made for each category of posts, under each appointing
authority according to the percentages indicated. For the purpose of making reservations
and calculating the number of vacancies to be reserved for each category of backward
classes indicated in para 2, a rotation of 100 vacancies shall be followed for each category
of posts under each appointing authority. The rotation of vacancies shall be a running
account till the hundredth vacancy is reached. For example, if on the first occasion of
recruitment, 21 posts have been filled, on the next occasion of recruitment the classification
will start from 22nd point and so on. All appointing authorities shall maintain separate
registers indicating the rotation for each category of posts under them. The appointing
authority shall intimate to the Public Service Commission or other selecting authorities the
number of vacancies to be filled by direct recruitment duly classified in accordance with the
rotation indicated in Appendix-II."
Under para 4, KPSC or other selecting authority is required to follow the mode of selection as indicated in
Appendix-III for the purpose of ensuring proper reservation made in favour of those persons. Appendix-III is
the same as Appendix-I to the Government Order dated 17th May 1971, incorporating the principles
enunciated by this Court in Partha's case. Para 5 provides for filling up of these reserved vacancies in case
candidates belonging to those categories are not available and such other contingencies. The roster
system reintroduced thereby under Appendix-II came to be varied by the subsequent Government Order
No.DPAR 25 SBC 79, dated 25th September 1979. By the system now in force, there is no difficulty for
giving effect to the reservation made for the benefit of the S.C., S.T. and Backward Classes inadequately
represented in State Civil Services, treating the recruitment as subjectwise. The procedure to be followed is
self contained in paras 3, 4 and 5 of the Government Order dated 4.3.1977. In view of these changes
brought about by the reservation orders issued from time to time by the Government there would no
injustice to the reserved categories. The contention urged to the contrary therefore fails and is rejected."
In the light of the above ruling and for the reasons stated earlier, the question of law set out first would have
to be and is answered in the affirmative.
16. Coming to the facts of this case, it may be seen that according to the roster prescribed the
reservation should have been effected in the following manner for five posts of Lecturers in Physics for
which selection was made:
(i)
Scheduled Castes (SC)
(ii)
Scheduled Tribe (ST)
(iii)
General Merit (GM)
(iv)
Backward Communities (BCM)
(v)
Backward Special Group (BSG)
Now according to the actual selections made, one candidate belonging to General Merit has been selected,
namely, the 7th respondent. But in respect of other four posts two candidates belonging to backward caste
and two candidates belonging to backward community have been selected obviously following the
Government Order dated 6.10.1981. If the roster prescribed was followed subjectwise, in view of paragraph
6 of the Government order, dated 4th March, 1977, the 5th vacancy earmarked for backward special group
ought to have been made available for general merit as no candidate belonging to backward special group
in the subject of Physics was available. In that event as the petitioner was at Sl.No.2, according to merit,
she was entitled to be selected as against one of the posts of Lecturer in Physics. The petitioner has been
denied equality of opportunity in the matter of selection for appointment to the post of Lecturer only on
account of the giving effect to the reservation of posts on the basis of total number of posts advertised
though it comprised all posts of Lecturers in different subjects and of specified numbers. Therefore the
petitioner is entitled to a direction to the Commission for re-doing the list by giving effect to the reservation of
posts subjectwise and by observing the roster prescribed in Appendix-II to the Government Order.
17. At this stage, it is also necessary to observe that if the reservation of posts is given effect to on
subjectwise basis while making selection for the posts of Lecturers, the Commission would have to follow
the procedure prescribed in Appendix-III as that would be attracted, as, in that event all the candidates
would be eligible for all the posts advertised and the anomaly that had been created and which was
considered in the cases of Anne Gowda and Muni Reddy would no long exist.
18. The only question which remains for consideration is whether there should be a direction to the
effect that after re-doing the list if it is found that some of the candidates who are selected are not selected
they should be displaced from appointment. As seen from the history of the case commencing from the
case of Smt. Syda Husna Banu, the question whether the reservation should be effected in subjectwise
basis or on the basis of total number of posts was being debated before this Court. It is seen that the
reservation of posts on the basis of total number of posts was being resorted to prior to the introduction of
roster, for, if the same was not done it was quite likely that the reservation itself would have been defeated if
small number of posts of Lecturers in different subjects were advertised on each occasion. Therefore, it
was considered inevitable, even at the cost of some injustice to candidates belonging to general merit in
some other subjects, that the reservation should be given effect to on the basis of total number of posts.
But after the roster is prescribed as pointed out by the Division Bench in Writ Appeal No.63 of 1974, the
injustice that was likely to be caused by reserving the posts on subjectwise basis had been averted. In this
situation, it appears to me that it is not expedient to direct the cancellation of the appointment of candidates
already selected but it would meet the ends of justice to direct the Commission and the Government to
adjust the candidates who are not selected, consequent on the re-doing of the select list, as against
vacancies arising after the impugned selection. Similarly, it appears to me that it is not expedient to reopen
the matter of reservations of posts made prior to the impugned selection and that a direction to commence
the roster from the impugned selections is sufficient.
19. In the result, I make the following order:
(i) Rule made absolute.
(ii) A writ in the nature of mandamus shall issue to the Commission to re-do the selection made
and published in notification dated 18th June 1983 (Annexure-C) for the posts of Lecturers by giving effect to
the reservation of posts on subjectwise basis adhering to the roster prescribed in Appendix-II to the
Government Order dated 4th March 77 as substituted by the Government Order dated 26th September 1979.
(iii) For the purpose of adhering to the roster, the Commission is directed to take the present
selection as the starting point.
(iv) The Commission shall publish a fresh list of candidates entitled to be selected for the posts of
Lecturers in each subject separately.
(v) If candidates who have not been selected in the impugned notification are included in the list of
selected candidates prepared pursuant to the writ issued in this Writ Petition, the appointing authority shall
proceed to give appointment forthwith to the candidates who are so selected.
(vi) If some of the candidates selected in the impugned notification are not selected, their names
shall be shown at the end of the list separately and the categories to which they are entitled to be selected
according to the roster shall be specified and they shall be adjusted against the vacancies arising on and
after the date of the impugned notification.
(vii) No costs.
***
Vacancies created by not joining the post
S.B. Civil Writ Petition No. 279 of 1995
D.D. 22.7.2002
Hon'ble Mr Justice Shiv Kumar Sharma
Sudhir Sharma – Petitioner
Versus
State of Rajasthan & Ors.
Recruitment for the State and Allied Services like RAS., RPS., Commercial Service etc.
The petitioner had indicated his preference for RAS, RPS and Commercial Service in that order.
The petitioner was selected as Commercial Tax Officer. Respondent No.4 Sri. Gyan Prakash Gupta who
was selected and appointed for RPS resigned after joining service. According to the petitioner he was
entitled to be selected in the RPS against the non-joined non-filled vacancy of Respondent No.4 as he had
indicated it as a second preference.
Held – If a candidate does not join the post, the vacancy so created shall be treated as fresh
vacancy. Therefore, the petitioner was not entitled to be appointed to RPS against the vacancy created by
Respondent No.4 as it was a fresh vacancy.
Cases referred:
1. AIR 1990 SC 405 P.Mahendran & Ors. Vs. State of Karnataka & Ors.
2. (1995) 2 SCC 630 Rajagopal Reddy & Ors. Vs. Padmini Chandrasekharan
3. 2002 (2) SLR 410 Thrissur District Co-operative Bank Limited Vs. Delson Davis P. & Ors.
ORDER
The petitioner in the instant writ petition sought the following relief:
i)
quashing of the impugned order dated March 3, 1994 (Annexure-I)
wrongly allocating/appointing the petitioner to the Rajasthan
Commercial Taxation Services;
ii) declaring the appointment of Shri G.P. Gupta (respondent No.4) in
the RPS at S.No. 6 of order dated 26.2.1994 (Annexure-I) as
cancelled and inoperative due to his non-joining until 07.03.1994;
iii) declaring the said non-joined post in the RPS of said Shri. G.P.
Gupta as a vacancy from 26.02.1994/ 07.03.1994, under existing
Rule 18(2) of Rules, 1962 and allotting the same for appointment of
the petitioner in the RPS as per his 2nd preference and being next
in merit as per provisions of Rule 18(1) of Rules, 1962 and Rule 25
and 26 of RPS Rules, 1954 w.e.f. 07.03.1994 from which date
petitioner has been appointed in Commercial Taxes Service
(Annexure-2);
iv) ordering/directing the respondents No.1 and 2 issue orders
appointing the petitioner in Rajasthan Police Service w.e.f.
26.02.1994/07.03.1994 against the said vacancy of Shri G.P.
Gupta (S.No. 3 Annexure-1) and deeming petitioners seniority
confirmation etc., and pay/increments in the RPS w.e.f said date
26.02.1994/ 07.03.1994 by deeming his appointment in RPS below
S. No. 14 i.e Shri. Manish Agarwal and above Shri. Dusht Daman
Singh S. No. 15 in said orders dated 26.02.1994 (Annexure-I) and
allowing the aforesaid benefits to the petitioner vis-a-vis officers
appointed in RPS per Annexure-I.
2.
Facts in brief are that the petitioner appeared at the combined Competitive Examination 1991 for
the State and Allied Services, results of which were announced on August 7, 1993. In accordance with
Rules of Competitive Examination 1962, the petitioner gave preference for appointment as under:
1. Ist Preference RAS
2. IInd Preference RPS
3. IIIrd Preference Commercial Service
3.
The petitioner was selected for all the said three services but since his position in regard to RAS
was little lower he was not selected/appointed for RAS. But in so far as 2 nd preference is concerned the
petitioner's merit position being at No.35 and 2 persons above him were Sarava Shri. Raghuvar Dayal Merit
No. 6 and Ram Niwas Sharma merit No. 29, having got less than 60 marks in interview, the petitioner's merit
position became at No.33 which entitled him to be selected appointed in the RPS against the non-joined
non-filled vacancy/of Shri Gyan Prakash Gupta who was appointed at S.No.3 by the order dated February
26, 1994.
4.
As per Rule 10(4) and Rule 18 of the Rules 1962 the selections and appointments are required to
be made strictly in order of merit and as per preferences given by the candidate. The petitioner had not
changed his option/preference at any time and as such his second preference for RPS remain valid ad
operative and he was entitled to be appointed to the RPS against the said vacancy caused by Shri.G.P.
Gupta respondent No.4. The respondents 1 and 2 on the basis of the recommendations of Rajasthan
Public Service Commission about the selectees in said services made appointments to concerned services
and the respondents necessarily and mandatorily adhere to the merit and order of preference. The
respondents issued appointment orders in all the three services within a span of 7 days i.e. RAS orders
were issued on February 24, 1994, RPS orders were issued on February 26, 1994 ad commercial services
orders were issued on March 3, 1994. The petitioner averred that the orders were issued simultaneously
and the respondents did not and could not have reckoned or offered opportunity to the selected candidates
for exercise of their rights of preference. On account of issuance of simultaneous orders in all the three
services, the candidates were asked to join by 07.03.1994 at the HCM institute, there was no occasion left
nor opportunity provided to the selectees, including the petitioner to obtain a chance for being
selected/appointed to the higher preference. The petitioner averred that for being appointed to RPS which
was his 2nd preference, no opportunity was given to him. The resultant position was that even though the
petitioner had given 2nd preference for RPS, but was shunted to 3rd preference of Commercial Services and
appointed vide order dated March 3, 1994 and since March 7, 1994 was given as the final date for joining at
HCM institute failing which the appointment order to this service of 3rd preference was ordered to lapse. The
petitioner was in fact given no chance at all. The petitioner averred that thus it is clear that he was denied
his rights of 2nd preference for RPS in respect of vacancy that could possibly occur due to non-joining of any
one of the persons so appointed to RPS as per order dated February 26, 1994. The 2nd preference given by
the petitioner for the post of RPS in this manner stood wholly negative and denied, which is contrary to said
Rules 10(4) and 18 of the Rules of 1962 as also Rules 25 and 26 of the RPS Rules 1954. Shri. G.P. Gupta
did not join upto March 7, 1994, at the HCM Institute thus due to his non-joining a clear vacancy occurred on
March 7, 1994 and as such the petitioner being at 35 (32 as shown) and his preference being 2nd for this
Service, should have been appointed on March 7, 1994 in RPS and his appointment order in Commercial
Service issued on March 3, 1964 should have been amended and he was to be given appointment in place
of Shri. G.P. Gupta in RPS and given position in RPSC in that order dated February 26, 1994 below Manish
Agrawal and above Dusthdaman Singh (S. No. 15) and merit No. 43 NGE quota) as per Rules 10(4) and
Rule 18 of the Rules of 1962. The petitioner averred that in not doing so his rights against the said vacancy
in RPS stood denied and need rectification.
5.
The further case of the petitioner is that the respondent No.4 Shri G.P. Gupta has not even joined
in RPS at the time of filing of the writ petition and the vacancy in the RPS continues to date. The
respondent No.4 was working in RJS cadre and no rule permit any candidate to hang on far so long and at
his will and keep the post reserved for him till he joins. Last date of joining as stated was March 7, 1994 and
thereafter due to his non-joining his appointment automatically lapses and vacancy becomes available to
the petitioner for being next in merit and due to 2nd preference. The foundation course at HCM institute
completed and Institutional course at RPS commenced but the respondent No.4 has not joined and thus his
vacancy is clear and he has a right to be given appointment.
6.
The petitioner further averred that pushing him to 3rd preference of Commercial Services and not
allowing him the right to be appointed to RPS against said vacancy is not only unjust but contrary to said
rules relating to merit and preferences. The petitioner joined the 3rd preference i.e. Commercial Taxes
Services on March 11, 1994.
7.
The further case of the petitioner is that in Government of India, in respect of
selections/appointments based on UPSC Exam, there is a clear procedure of first giving an offer of a certain
service to the selected candidates and he is told in writing that his position is likely to be improved and he is
likely to be considered for higher preference in case of non-joining of a candidate in the higher service. Any
procedure contrary to this as followed by the respondents is violative of Rules and a complete denial of right
of preferences. In fact otherwise, the preferences would become meaning less. This position has not been
seen by the Government and deserves to be reconsidered.
8.
The petitioner further averred that the vacancy caused due to non-joining of respondent No.4 G.P.
Gupta cannot be carried forward to next selection because the vacancy has not been caused after his
joining and then resigning. The amended Rule 18(2) of the 1962 which was made effective from 31.07.1991
cannot be invoked to deny the right of appointment to the petitioner to the said vacancies which were
determined under Rule 9 of RPS Rules 1954 w.e.f. 01.04.1991 i.e., earlier to this amendment hence these
vacancies and selections made for them are outside the pale of this amended Rules which is effective only
from 31.0791 and could apply in respect of next years selections of vacancies of 01.04.92 to 31.03.93. The
amended rule is also exfacie colourable exercise of powers of Rule making authority to deny such
vacancies to persons being next in merit and having right of 2nd preference. The rule in any case
contradicts and is violative of the right of preference ad merit position. Vacancies occurring on ground of
non-joining by a candidate can not be treated as fresh vacancy and carried over to next year because
selections were duly made against that post for which notification was made and selections done. A post
available for one particular selection cannot be carried over to next selections when persons like the
petitioner were available being next in merit and having valid operative second preference and have to be
offered to next in merit and that person given appointment. This practice and procedure which is based on
sound legal position is duly adopted in UPSC selections by the Government of India.
9.
Respondent No.1 in the reply averred that since amended Rule 18(2) came into force on July 31,
1991 much prior to the date or appointment which is in the year 1994, the State Government was justified in
carrying forward the post remaining vacant o account of non-joining of respondent No.4. The provisions of
amended rule had a cogent reasoning behind it. The petitioner has not challenged the validity of amended
Rule 18(2) therefore he is not entitled to any relief.
10.
The respondent No.3 Rajasthan Public Service Commission filed reply to the writ petition on April
7, 1995 and mainly submitted that as per the preference given by the petitioner his name appeared at merit
No. 33 in the merit list of Rajasthan Administrative Services and at Merit No. 33 in the merit list of Rajasthan
Police Service and further at No.30 in the merit list of Rajasthan Accounts Services. The respondent No.4
Shri G.P. Gupta's name appeared at No. 21 in the merit list of Rajasthan Administrative Services as well as
at No. 18 in the merit list of Rajastha Accounts Services further at No. 21 in the merit list of Rajasthan Police
Services. The merit lists were sent to the State Government and it is for the State Government to give
appointments to the selected candidates as per the preferences given by them.
The respondent
Commission has nothing to do in issuing the appointment orders. So far as determination of the vacancies
is concerned the same is done by the State Government and the respondent commission makes selections
strictly as per the requisition sent by the State Government and also as per the provisions of the relevant
Rules and the main relief in the writ petition has been claimed from the State Government only.
11.
The respondent No.4 also filed separate reply to the writ petition and averred that the vacancies
determined and notified as per Notification dated October 19, 1991 were subsequently determined in the
year 1993 after Notification of the vacancies and were raised from 15 posts initially advertised to 23 posts in
RPS. If the number of posts to RPS were taken to be 15, the petitioner being at S.No. 33 in the select list of
general candidates will not even get his present posting not to speak of RPS. The Government cancelled
the appointment order of the respondent No.4 without considering the genuine request of the respondent in
an arbitrary manner and in violation of the principles of natural justice and administrative norms. It was
further submitted that the respondent No. 4 filed a writ petition before this Hon'ble Court challenging the
order dated August 19, 1994 and his writ petition was allowed on January 3, 1996. The State of Rajastha
was directed to give sufficient time to the respondent No.4 for joining. The State of Rajasthan was further
directed to appoint him in RPS after his resignation is accepted. The answering respondent was allowed to
join RPS by June 7, 1994 in Public interest by the order dated March 5,1994 and if the petitioner was
aggrieved with this order he should have challenged the order dated March 5, 1994. The petitioner having
failed to avail of that opportunity cannot seek any relief in this writ petition. The respondent No.4 further
averred in the reply that the amendment to Rule 18(2) of 1962 Rules was made even before inviting
applications by the RPSC for State Services and as such the petitioner cannot raise a claim on the basis of
unamended rule. The petitioner has concealed the dates of further determination of vacancies from 9 to 14
(General seats) of RPS with the oblique motive to base his claim on unamended provision of Rule 18(2) and
as such he did not come with clean hands.
12.
The petitioner filed review petition against the order dated January 3, 1996 which was allowed on
the ground that the respondent No.4 concealed the fact that no period was prescribed for joining the service.
The maximum period of 30 days was provided under the Rajasthan Civil Services (Joining Time) Rules,
1981. Since the respondent No.4 failed to join RPS the writ petition was ordered to be dismissed.
13.
I have considered the rival submissions and scanned the material on record.
14.
Before proceeding further it is necessary to refer amended rule 18(2) which read thus "Rule 18(2): "If a person selected under Sub-rule (1) above and
appointed to a post/service concerned in accordance with the relevant
service rules against the vacancies of a particular year for which the
Combined Competitive Examination was conducted by the Commission
in accordance with these rules does not join on the post offered to him
or has resigned or expired in any subsequent year, in that event the
said vacancies shall be treated as fresh vacancies."
The words "does not join the post offered to him or" were
inserted vide Notification No. F -7(4) DOP/A-II/83 dated July 31, 1991.
15.
Mr. S.C. Bhandari, learned counsel vociferously canvassed that the petitioner is entitled to be
appointed in the RPS as per his second preference and being next in merit as per provisions of Rule 18(1)
and Rules 25 and 26 of RPS Rules w.e.f March 7, 1994 the date on which he was appointed in Commercial
Taxes Service against the vacancy of Shri. G.P. Gupta. According to Mr. Bhandari learned counsel, Rule
18(2) came to be amended w.e.f. July 31, 1991 which has no application in respect of the specific particular
posts is in RPS i.e. of the year April 1, 1991 to March 31, 1992 as determined in advance under Rule 9 of
RPS Rules 1954 prior to April 1, 1991 and conveyed to RPSC prior to April 1, 1991 for the purpose of
holding examinations for selection thereof. The amended section has been made effective from July 31,
1991 only and thus applicable for posts and examinations of next year i.e. April 1, 1992 to March 31, 1993
and not for post of April 1, 1991 to March 31, 1992 and has no effect on the petitioner's right and entitlement
to the said vacancy of April 1, 1991.
16.
Mr. Bhandari next contended that as per Rule 10(4) and Rule 18 of Rules 1962 the selections and
appointments were required to be made strictly in order of merit and as per preferences given by the
candidate. The petitioner had not changed the option/preference at any time as such his second preference
for RPS was valid and operative and he was entitled to be appointed to the RPS against the vacancy
caused by G.P. Gupta. In support of his submissions Mr. Bhandari, placed reliance on the following
authorities – A.V. Bhogeshwarudu Vs. Adhra Pradesh Public Service Commission and anr. (JT 1989 (4) SC
130), Bhag Singh Vs. State of Punjab and others (1983 Lab. I.C. 415), Kumari Shilpi Ramdeo Vs. State of
Rajasthan and others (S.B. Civil Writ Petition No. 2084/90 decided on August 212, 1990). Kumari Anita Vs.
State of Rajasthan and others (S.B. Civil Writ Petition No. 2214 of 1990 decided on May 20, 1991), Kumari
Shipi Ramdeo Vs. State of Rajasthan and others (D.B. Civil Special Appeal No. 151/91 decided on July 3,
1991) Mariyakutty Vs. Convener, Municipal Common Service and Director of Municipalities and ors. (1975
(1) SLR 188). The State of Mysore Vs. S.R. Jayaram (1968 SLR 92), Krishi Upaj Mandi Samiti Jodhpur
etc., Vs. State of Rajasthan and others (1982 RLR 762). Sudarshan Singh and others Vs. The Government
of India and others (1980 (3) SLR 199). P Sriramaiah Vs. P. Purushothama Rao and another (1974 (1) SLR
54), Shyamal Kumar Sarkar and others Vs. Union of India and others (1972 SLR 627), R. Rajagopal Reddy
and others Vs. Padmini Chandrasekharan (1995) 2 SCC 630), P. Mahendran and others Vs. State of
Karnataka and others (AIR 1990 SC 405), and A.A. Calton Vs. The Director of Education and another (1983
All L.J. 516).
17.
In order to appreciate the contentions of Mr. Bhandari, the learned counsel for the petitioner, I have
closely scanned amended rule 18(2). As seen before the words "does not join on the post offered to him or"
were inserted vide Notification dated July 31, 1991. A plain reading of this amended rule demonstrates that
it has been made applicable only in that event when a person is selected and appointed to a post, but he
does not join on the post offered to him. In this situation the said vacancy shall be treated as fresh vacancy.
To my mind, in any such situations arose after July 31, 1991 where a person refuses to join on the post
offered to him. Amended Rule 18(2) shall be applicable. G.P. Gupta was appointed vide order dated March
3, 1994 and he did not join on the post offered to him. Therefore the vacancy created against the post of
G.P. Gupta shall be treated as fresh vacancy. It is difficult to agree with Mr. Bhandari, learned counsel that
amended Rule 18(2) is not applicable in the instant case as the posts of RPS were determined in advance
under Rule 9 of RPS Rules 1954 prior to April 1, 1991 and conveyed to RPSC prior to April 1, 1991. On a
close scrutiny of Rule 18(2) it appears that vacancy may be of any year but if after July 31, 1991 it is not
filled on the ground that the candidate does not join the post, the vacancy so created shall be treated as
fresh vacancy. Therefore eve if it is held that the second preference of the petitioner for the post of RPS
was valid effective as per Rule 10(4), the petitioner is not entitled to be appointed to the RPS against the
vacancy in terms of amended Rule 18(2). The ratio indicated in the authorities cited by Shri. Bhandari is not
applicable to the facts of this case in view of amended Rule 18(2).
18.
Their Lordships of the Supreme Court in Thrissur District Co-operative Bank Limited Vs.
Delson Davis P. & Ors. (2002 (2) SLR 410) indicated thus:"2. On completion of the selection process, the respondent No.1 was
included in the list as having secured second rank while one Mr. T.D.
Rolly Stood first. Mr. Rolly joined the service and he was appointed as
data entry officer. After some time he resigned from service as he got
better placement in some other institution. The respondent No.1, it
appears approached the bank and requested appoint him in that
vacancy. Though he was appointed temporarily, he was not given
permanent employment. Under those circumstances, the respondent
No.1 approached the High Court for a direction that he should be
appointed on permanent basis. The High Court examined the matter
and found that when the previous incumbent, who had been selected,
had left the post and vacancy being available, the appropriate course
was to have appointed the respondent No.1 and he had a right to be
considered for the appointment.
3. We fail to understand the reasoning of the High Court in this
regard. When once the selection process is complete and appointment
had been made, that process comes to an end and if any vacancy
arises on the appointee having joined the post leaves the same, it must
be treated as afresh vacancy and fresh steps in accordance with the
appropriate rules should be taken".
19.
For the aforesaid reasons and in view of the ratio propounded in Delson Devis case (Supra) I
do not find any merit in the writ petition and the same is dismissed without any orders as to costs.
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