IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1686 of 2005 (S/S) Keerat Singh S/o Sri Bhagat Singh ..……… Petitioner Versus State of Uttarakhand and others ……… Respondents. Mr. Ravi Babulkar, Advocate for the petitioner. Mr. B.D. Kandpal, Advocate for the respondents. Hon’ble Tarun Agarwala, J. Heard Mr. Ravi Babulkar, the learned counsel for the petitioner and Mr. B.D. Kandpal, the learned counsel for the respondents. The petitioner, in the present writ petition, has questioned the prescription of a minimum marks for the oral examination as a condition of eligibility for appointment. The facts leading to the filing of the writ petition is, that the Uttarakhand Public Service Commission issued an advertisement dated 30th October, 2003 inviting applications for appointment of Lecturer in various subjects in various Government Inter Colleges located in the State of Uttarakhand. The petitioner belonging to a Scheduled Tribes category, applied for appointment as a Lecturer in mathematics. It transpires that a screening written test was conducted by the Commission, in which, the petitioner was found to be successful and, thereafter, the Commission issued a call letter dated 8th September, 2005 inviting the petitioner to appear before the interview board. The petitioner appeared and, thereafter, the petitioner came to know that a select list of two persons from the Scheduled Tribes candidates was prepared which was forwarded by the Commission to the appointing authority. Based on the said list, the two candidates so selected were duly appointed. The petitioner, being aggrieved, by the non-inclusion of his name in 2 the select list has preferred the present writ petition questioning the procedure adopted by the Commission in the selection process. The submission, in short, is that the Commission had adopted a procedure in violation of the provisions of Rule 15 and 18 of the Uttar Pradesh Special Subordinate Educational (Lecturer’s Cadre) Service Rules, 1992 which are applicable for appointment of lecturers by direct recruitments in government colleges. For facility, the procedure provided for appointment by direct recruitment as provided under Rule 15 and 18 of the said Rules is extracted hereunder:- “15. Procedure for direct recruitment.- (1) Application for being considered for selection by direct recruitment shall be called by the Commission in the prescribed proforma published in the advertisement issued by the Commission. (2) The Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with Rule 6, call for interview such number of candidates, who fulfill the requisite qualification, as they consider proper. (3) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by each candidates in the interview. If two or more candidates obtain equal marks, the Commission shall arrange their names in order of merit on the basis of their general suitability for the service. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. The Commission shall forward the list to the appointing authority. 18. Appointment.- (1) Subject to the provisions of sub-rule (2), the appointing authority shall make appointment by taking the names of the candidates in the order in which they stand in the lists prepared under Rule 15,16 of 17 as the case may be. (2) Where in any year of recruitment, appointments are to be made by direct recruitment and by promotion, regular appointments shall not be made unless selections are made from both the sources and a combined list is prepared in accordance with Rule 17. (3) If more than one order of appointment is issued in respect of any on selection, a combined order shall also 3 be issued mentioning the names of the persons in order of seniority as determined in the selection or as the case may be as it stood in the cadre from which they are promoted. If the appointments are made both by direct recruitment and by promotion, names shall be arranged in accordance with list prepared under Rule 17.” A perusal of the aforesaid rules indicate that the Commission will call for interview such number of candidates who fulfill the requisite qualifications and that the commission would prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by each candidate in the interview. Under the proviso to Rule 15, the names in the list shall be larger but not larger than 25 percent of the vacancies. Under Rule 18, the appointments will be made in order of merit shown in the list prepared under Rule 15. In the light of the aforesaid provisions, Shri Ravi Babulkar, the learned counsel for the petitioner submitted that even though there was no provision for holding a written examination, nonetheless, the petitioner appeared and qualified in the written examination and, thereafter, was called for the interview. In the interview, the Commission was required to prepare a list in the order of proficiency as disclosed by the marks obtained by each candidate and that the respondents had no jurisdiction or power to delete the name of the petitioner from the said list on the ground that the petitioner has not obtained the minimum cut off marks in the interview since there is no cut off marks prescribed under Rule 15 of the Rules. The learned counsel for the petitioner submitted that the language employed under Rule 15 is clear and simple and if the procedure is required to be done in a particular manner, the same should be done in the same way and, that the Commission had no jurisdiction to adopt a method by bringing into a picture a cut off mark in the interview in gross violation of Rule 15 of the aforesaid Rules. 4 In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of the Supreme Court in the case of Chandra Kishore Jha Vs. Mahavir Prasad and others, JT 1999 (7) SC 256, wherein the Supreme Court held as under :- “It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.” The learned counsel submitted that since there was no provision under Rule 15 to impose a cut off marks by the Commission and such a criteria adopted was violative of Rule 15 and in this regard, the learned counsel has placed reliance upon a decision of the Supreme Court in the case of P.K. Ramachandra Iyer and Others Vs. Union of India and others, (1984) 2 SCC 141, wherein the Supreme Court held as under:- “Mr. Ramachandran, learned counsel for the petitioner contended that Rule 13 does not envisage obtaining of minimum marks at the viva voce test even though it contemplates obtaining minimum marks at the written test so as to be eligible for being called for viva voce test. It was further urged that Rule 14 specified the manner in which merit list is to be arranged. Rule 14 provides that after both written and viva voce tests are held, the candidates will be arranged by the Board in the order of merit in each category (Professional subjectwise) as disclosed by the aggregate marks finally awarded to each candidate and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination. On a combined reading of Rules 13 and 14, two things emerge. It is open to the Board to prescribe minimum marks which the candidates must obtain at the written test before becoming eligible for viva voce test. After the candidate obtains minimum marks or more at the written test and he becomes eligible for being called for viva voce test, he has to appear at the viva voce test. Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce 5 test. On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva voce test and the final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination. The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the Rules. By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. It however does not appear in the facts of the case before us that because of an allocation of 100 marks for 245 viva voce test, the result has been unduly affected. We say so for want of adequate material on the record. In this background we are not inclined to hold that 100 marks for viva voce test was unduly high compared to 600 marks allocated for the written test. But the ASRB in prescribing minimum 40 marks for being qualified for viva voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written test plus viva voce test. Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high-up in the merit list was likely to be rejected on the ground that he has not obtained minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks, at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to Rules and the merit list prepared in contravention of the Rules cannot be sustained.” 6 On the other hand, Shri B.D. Kandpal, the learned counsel for the Commission submitted that as per Rule 3 of Direct Recruitments through Uttarakhand Public Service Commission (Preliminary Examination) Rules, 2002, the Commission is empowerd to hold a screening test, even though, it is not provided in the relevant rules and, based on such rules, condition No.14 of the advertisement clearly indicated that if the number of applications for the posts advertised is disproportionately large, in that event, a screening test would be held in order to short list the candidates and, that the short listed candidates would thereafter be called for an interview. It was also indicated that the marks obtained in the screening test would not be considered for testing the proficiency. In the light of the condition No.14, a screening test was validly conducted by the Commission to short list the candidates and to that effect, the petitioner cannot take any advantage that he had appeared in the written examination. The Commission while holding the interview had prescribed the minimum cut off marks of 35 percent for the Scheduled Castes and Scheduled Tribes candidates and submitted that the candidates who obtained 35% marks or more were kept in the select list and the candidates who obtained less than 35 % marks were not considered fit for appointment. The respondents contended that on the basis of the proficiency marks obtained by the petitioner, which was less than 35%, the petitioner was not selected or kept in the select list and, since only two candidates were found fit, their names were recommended and forwarded to the appointing authority. The learned counsel submitted that the procedure adopted by the Commission was in consonance with the Rule 15 of the Rules which permitted the Commission to prescribe the procedure for holding the interview and while prescribing such procedure, the Commission adopted a cut off marks of 35% as the 7 minimum to establish their proficiency for consideration on the post of Lecturer. In support of his submission, the learned counsel placed reliance upon a decision of the Supreme Court in the case of K.H. Siraj Vs. High Court of Kerala and others, (2006) 6 SCC 395, wherein Rule 7 of the Kerala Judicial Service Rules, 1991, prescribed a procedure for the preparation of a list of approved candidates after holding a written and an oral examination. In this Rule, no procedure was given for prescribing the minimum cut off marks for oral examination. A candidate challenged the condition of prescribing the minimum marks for the oral examination which was dismissed by the High Court. The Supreme Court in the Special Leave Petition held as under:- “Thus it is seen that apart from the amplitude of the power under Rule 7 it is clearly open for the High Court to prescribe bench marks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the Rules which may not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the Rule with a view to implement them by prescribing relevant standards in the advertisement for selection. Reference may be made to the decision of this Court in State of Gujarat vs. Akhilesh C. Bhargav & Ors., (1987) 4 SCC 482. ” The Supreme Court observed that it was open for the High Court to prescribe a bench mark for the written and oral test in order to achieve the purpose of getting the best available talent and that there was nothing in the Rule which barred such procedure being adopted. In the light of the aforesaid, the Court finds from a reading of sub-clause (2) and (3) of Rule 15 that on the basis of the requisite qualification by a candidate, it is seen that the Commission is required to call the candidates for an interview who fulfill the requisite qualifications and a list of candidates has to be 8 prepared in order of their proficiency as disclosed by the marks obtained by each candidate in the interview. The aforesaid sub- clause (3) of Rule 15 indicates that the Commission is required to prepare a list on the basis of proficiency and, while gauging the proficiency of a candidate, it is open to the Commission to prescribe a bench mark for the oral test in order to achieve the purpose of getting the best talent available. In this regard, the Commission has made a minimum bench mark of 35% marks to be obtained in the interview for the Scheduled Castes and Scheduled Tribes candidates. The Court finds that such a bench mark which has been prescribed by the Commission is in consonance with the sub-clause 3 of Rule 15 so that a list of candidates in order of their proficiency obtained as disclosed by the marks obtained by each candidate is prepared in order to get the best available talent. The Court does not find any arbitrariness or violation of Rule 15 of the Rules in such a procedure being adopted by the Commission. Apparently, the petitioner did not obtain the requisite minimum marks prescribed by the Commission and, accordingly, his name was not found in the select list. The court does not find any error in the select list prepared by the Commission. Consequently, the writ petition fails and is dismissed. In the facts and circumstances of the case, there shall be no order as to cost. (Tarun Agarwala, J.) Dated 29.06.2010 Shiv 9