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 30 th 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 1 st 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 16 th 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 1 st 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? How far the vacant posts can be filled up on the basis of the result of the examination in question? 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?

b) c)

d) e)

Whether process of selection has been vitiated for not declaring the exact number of vacancies? 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 15 th 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 30 th 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 30 th 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 37 marks in the written examination and 37 marks in the interview, the total marks obtained by him being 74. 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 1 st August, 2001, the relevant Services Rules were amended and the said amended Service Rules came into force with effect from 3 rd 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" 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,

Akshilesh Kumar Shukla (AIR-1986 1043) wherein it has been laid down as follows:

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 faade 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 Kulshreshthas 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) (b) (c) 3. Preference will be given to the candidates having experience in administering large Health Service Programmes including Family Welfare programme and Hospital administration. A post graduate degree of diploma in Public Health will be treated as a preferential qualification. 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 26 th 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 CMs approval for taking up a vigilance case. Sd/- Commissioner & Secretary. Health Honble Chief Minister, This is regarding appointment of Director, Health Service, Assam as per APSCs select list. Honble 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 5 th 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. 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 There was also no decision with regard to

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 19 th 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 31 st 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 19th 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 4 th 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 25 th November, 1999, the RPSC forwarded the main select list to the State Government. On 24 th May, 2000, the reserve list was forwarded by the RPSC to the State Government. On 30 th 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 Presenting Officer for the respondents. 2. The applicant in this case appeared for competitive examination conducted by the MPSC for the Shri S.R. Atre, learned

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 Honble 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 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 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 petitioners case by the Orissa Public Service Commission, hereinafter called as O.P.S.C.. 2. The petitioners 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 years 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 candidates 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 Honble 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 petitioners 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 years 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 20 th 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 30 th 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. 2.

Heard learned counsel for the parties. 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 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 W.P(C) No.582/99 and Mr. S Deb, learned senior

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 Honble Supreme Court not more than 12 % 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 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,

dated 12th January, 1978, in force the essential qualification is an under.:-

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 21 st December 1998, But the respondents degree DHMS has been included in Second schedule to the act by amendment notified in official Gazette dated 21 st 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

respondents 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 % marks for the viva-voce fixed by the Honble Supreme Court has been violated. The learned counsel relied on decision of the Honble 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 % 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 % marks for interview fixed by the Honble 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) ii) Degree of a recognized University 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 Judge by arguing that the selected candidates did not fulfill

defended the judgement of the learned single

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 advertisement. 11. On a plain reading of the qualification prescribed in the recruitment Rules and in the advertisement. prescribed in the recruitment Rules as well as in the

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 3rd 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 3 rd 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) 2 nd 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 1 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) (2) 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 Chairman of the Commission can constitute or re-constitute the Interview Committee and Short listing of candidates eligible for interview by conducting Screening Test.

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 1 st 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 26 th 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 29 th 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 26 th 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 7 th 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 7 th 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: 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".

(v)

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 " 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

case of Ashok Kumar Yadav, referred to above which reads as under:

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". 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

31.

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 2. No. of vacancy/ies advertised, designation of the vacancy/ vacancies and department xxx xxx xxx xxx Statement showing the particulars of the posts for which applications are called for: 59 posts of Lecturers in the Department of Collegiate Education in the following subjects: English : 07

Kannada Telugu Urdu History Economics Political Science : Sociology Geography Commerce Physics Chemistry Mathematics Botany Geology 3. Scale of pay 4. Minimum qualification prescribed for the posts GROUP-B : : :

: : : 08 : 06 : : : 04 : : : 01

06 01 01 07 02 01 09 02 02 02

Rs. 750-50-1000-60-1300-75-1525 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

Xxx 5. Classification of Vacancies

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 18 th 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. Subject English Kannada Telugu Urdu History Economics Sociology 08 07 2 02 07 No.of No.of candidates selected in each category posts GM BCG BT BCM BSG SC ST EX.MP 7 06 01 01 3 1 2 2 2 1 2* 1 1 2 2 1 2 2 1 2 2 1 1 3 8 8 6 2* 7 6 1 Total

Political Science 06

Geography Commerce Physics Chemistry Mathematics Botany Geology

01 09 04 02 02 02 01 23

7 1 1 7

1 2 1 1 3

1 2 1 1 11

1 1 9

1 1 9

1 2

1 1

1 9 5* 2 3* 3* 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 1 st 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 50% by promotion of Demonstrators and Tutors subject to their possessing a II Class Master's degree in respective Subjects. Minimum qualifications and period of probations xxx xxx For Direct Recruitment: 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 (2) Backward Castes (3) Backward Tribes (4) Special Group 20% 10% 5% 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 11. R:BSG 16. R:BCM 21. R:BCM 26. 31. GM GM

7.

GM 8. R:BCT

9.

GM 10. R:BCM 15. GM 35. GM 40. :GM 45. :GM 50. :GM 60. R:BSG 65. R:BSG 70. :GM 80. R:BSG 85. :GM 90. R:SC 95. R:BCT 100. R:BCT GM 25. R:BCM 30. R:BCM GM 24. 20. R:SC

12. GM 13. R:SC 17. R:BCT 22. GM 27. R:SC 32. R:BSG 37. R:BCM 42. R:BSG 47. :GM 52. :GM 57. R:BCM 62. R:SC 67. :GM 72. R:BT73. 77. :GM 82. :GM 87. R:BSG 92. R:BSG 97. R:SC : General Merit

14. R:BSG

18. R:BT19. 23. R:BSG 28. :GM 38. :GM 43. :GM 48. R:SC 53. R:BSG 58. :GM 63. R:BCM 68. R:BCM :GM 78. R:BSG 83. R:SC 88. :GM 93. R :BCM 98. :GM

29. R:BCT 39. R:BCT 44. R:BCM 49. R:BCT 59. R:BCT 64. :GM 69. R:SC 79. :GM 84. R:BSG 89. R:BCT 94. :GM 99. R:BCM 34 18 15 10 05 15 03

33. R:ST34. R:SC

36. R:BT 41. R:SC 46. R:BSG 51. R:BCM 56. :GM 61. :GM 66. R:ST 71. R:BCM 76. R:SC 81. R:BCM 86. R:BCM 91. R:BT 96. R:BSG N.B. R : G.M. :BCM

54. R:BT55. R:SC

74. R:BCM

75. :GM

: Reserved for Backward Communities : Reserved for Scheduled Castes : Reserved for Backward Castes : Reserved for Backward Tribes : Reserved for Backward Special Group : Reserved for Scheduled Tribes

R : SC R : BCT R R : BT

: BSG

R : ST

--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 6 th 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 17 th 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) (ii) (iii) (iv) (v) Scheduled Castes (SC) Scheduled Tribe (ST) General Merit (GM) Backward Communities (BCM) 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 3 rd 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 2 nd 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 2 nd 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 3 rd 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. 14.

I have considered the rival submissions and scanned the material on record. 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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