IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH Date of Decision: 08.09.2011 LPA No.1053 of 2011 Gur Jai Pal Singh …Appellant Versus Punjab Public Service Commission and another …Respondents LPA No.1054 of 2011 Gursharan Singh …Appellant Versus Punjab Public Service Commission and another …Respondents LPA No.1055 of 2011 Harnek Singh and others …Appellants Versus Punjab Public Service Commission and another …Respondents Present: Mr. H.C.Arora, Advocate, for the appellant(s). Ms. Rita Kohli, Addl. AG, Punjab, for the respondent(s). LPA No.1068 of 2011 Maninder Partap Singh …Appellant Versus Punjab Public Service Commission and another …Respondents Present: Mr. Saqib Ali Khan, Advocate, for the appellant. Ms. Rita Kohli, Addl. AG, Punjab, for the respondent(s). CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE VIJENDER SINGH MALIK HEMANT GUPTA, J. This order shall dispose of aforementioned four letters patent appeals arising out of a common order passed by the learned Single Judge LPA No.1053 of 2011 of this Court on 03.06.2011, whereby number of writ petitions challenging the action of the Punjab Public Service Commission in respect of candidates to be called for the main examination were dismissed. Punjab Public Service Commissioner (for short ‘the Commission’) issued an advertisement dated 26.11.2009 inviting applications for filling up of 143 posts through Punjab Civil Services Combined Competitive Examination, 2009. However, by corrigendum dated 21.12.2009, the posts of Excise & Taxation Officers were increased from 37 to 74 and, thus, the total number of seats brought within the purview of examination were increased to 180. Punjab Civil Services (Executive Branch) (Class-I), Rules, 1976 i.e. the statutory Rules framed under proviso to Article 309 of the Constitution of India deals with conduct of Preliminary Examination and the candidates to be called for the Main Examination. The relevant provisions read as under: “12. (1) A preliminary competitive examination, the regulations of which are contained in Appendix II of these rules, shall be held at any place in the State of Punjab as and when notified by the Government through the Commission for the purpose of selection of candidates for admission to the main competitive examination as specified in rule 13-A.” xxx xxx xxx “13.(1) Applications for permission to sit in the preliminary competitive examination will be called by the Commission and shall be made in the manner and form prescribed and accompanied by such documents or papers as may be required by the Commission in this behalf.” xxx xxx xxx “13-A (1) A main competitive examination, the regulations of which are contained in Appendix III of these rules, shall be held at any place in the State of Punjab as and when notified by the Government through the Commission for the purpose of selection by competition of as many candidates for the service as Government may determine. (2) Notice of the date fixed for the main competitive examination shall be published in the Punjab Government Gazette. 2 LPA No.1053 of 2011 (3) No candidate shall be allowed to sit in the main competitive examination, unless he has qualified the preliminary competitive examination in terms of the provision of rule 12. (4) The total number of candidates to be admitted to the main competitive examination shall not exceed thirteen times the total number of vacancies determined by the Government under sub Rule (1).” The Commission issued brochure for Punjab State Civil Service Combined Competitive Examination, 2009 containing information in respect of number of vacancies, category-wise break up, the conditions relating to preliminary and main competitive examination. The preliminary competitive examination was contemplated to consist of two papers of objective type (multiple choice questions) and carry a maximum of 450 marks. The candidates, who qualify in the preliminary competitive examination, are entitled to apply for admission to the main competitive examination. The present appeals are by the candidates belonging to Scheduled Castes and Backward Classes, wherein the grievance is that the Commission has prepared list of candidates to b called for main examination in vertical manner i.e. called thirteen times of the candidates of each category. In such process, the candidates from the reserved categories, who fall within the cut-off of General category cannot be counted towards the determining the number of candidates of reserved categories to be called for main examination. It is argued that if 10 Backward Class candidates appear in the merit list of General category, then 10 additional candidates are required to be called for main examination from the Backward Class category. Thus, the appellants have been excluded from appearing in the main competitive examination. It is contended that the percentage of reservation fixed under the Rules is required to be applied at all stages of the examination process including preliminary examination. Since the 3 LPA No.1053 of 2011 percentage of reservation has not been applied at the stage of preliminary examination, therefore, the short-listing of candidates for the purpose of main examination is not legal. Before the learned Single Judge, it was argued that the preliminary examination per se is not a process of selection, but only prelude to initiation of selection process. The short-listing through the mode of preliminary examination is only a qualifying examination and the strict rules of reservation have no application at the stage of qualifying examination. The learned Single Judge relied upon Jitendra Kumar Singh and another Vs. State of Uttar Pradesh and others (2010) 3 SCC 119, wherein the Court has considered the concession of relaxation in age and fee for the candidates belonging to social reservations falling within Article 16(4) of the Constitution of India and held that such benefit availed by social classes is inconsequential, as the open competition has not yet commenced. Relying upon the said judgment as well as on Andhra Pradesh Public Service CommissionVs. Baloji Badhvath and others 2009 (5) SCC 1, the learned Single Judge has dismissed the writ petitions. Before this Court, learned counsel for the appellants has relied upon Baloji Badhvath’s case (supra) to contend that the rule of reservation is applicable at all stages including at the stage of preliminary examination, which has not been followed. On the other hand, Ms. Rita Kohli, learned Additional Advocate General, Punjab argued that in terms of Rules, thirteen times of candidates in each category have been called. The cut-off marks for the General category are 290.017, whereas the candidates of all other categories have been permitted to appear in the main examination, who have obtained less marks than the said cut-off marks except in Freedom Fighters category. 4 LPA No.1053 of 2011 In respect of such category, Ms. Kohli has made a statement today that all candidates belonging to Freedom Fighters category, who obtained the same cut-off mark of General category i.e. 290.017 shall be permitted to appear in the main examination. For the facility of reference, the details of the candidates, number of posts and the candidates, who have passed, are mentioned below: CODE CATEGORY NAME POSTS REQUIRE D IN MERIT CUT OFF 71 GENERAL 85 1105 1106 290.017 72 ESM, PUNJAB 73 LDESM, PUNJAB 13 169 119 68.456 48 203.578 74 FREEDOM FIGHTER, PUNJAB 1 13 14 305.050 75 SPORTS PERSON, PUNJAB 2 26 26 226.510 76 PHYS, HANDI., PUNJAB 5 65 66 223.063 77 SC OTHERS, PUNJAB 19 247 249 276.023 78 SC ESM, PUNJAB 7 91 12 68.456 80 SC OTHERS, SPOTS PERSON, PUNJAB 1 13 4 211.155 81 B/M SIKH, PUNJAB 18 234 236 231.117 82 B/M SIKH ESM, PUNJAB 2 26 1 88.591 84 B/M SIKH SPORTS PERSON, PUNJAB 1 13 2 230.923 85 BC, PUNJAB 24 312 317 225.017 86 BC, ESM, PUNJAB 2 26 12 68.456 TOTAL 180 2340 2212 We have heard learned counsel for the parties, but do not find any merit in the present set of appeals. The number of candidates to be called for main examination is contained in sub-clause of Rule 13-A. In terms of sub Rule 1, the number of vacancies is as mentioned in Column 5 LPA No.1053 of 2011 No.3 of the Table, mentioned above. The Commission has called thirteen times of the candidates in respect of number of posts out of each category. While determining the number of candidates to be called for main examination, the candidates of reserved category, who fall within the merit as General category having not been excluded. It is the case of the Commission that with the process adopted by the Commission, the scope of candidates of reserved category, in fact, has been widened. It is also argued that the principle of reservation is not applicable at the stage of qualifying the candidates for main examination, as the principle of reservation would be applicable only at the time of filling up of posts as a result of the main examination. Having heard learned counsel for the parties, we find that the argument of the appellants that the reserved category candidates, who have come in their own merit in General category cannot be taken into consideration for determining the candidates to be called for the main examination, is not meritorious. The Hon’ble Supreme Court in Jitendra Kumar Singh’s case (supra) has held that rule of reservation does not apply at the stage of qualifying examination. The purpose of preliminary test is to short-list the candidates for appearing in the main examination. The strict rule of reservation is not applicable at that stage. The Commission has called thirteen times of the candidates belonging to reserved categories. The process of merit is required to be finalized on the basis of main examination and viva-voce. At the stage of preliminary examination, which is a short listing process of eligible candidates, the rule of reservation cannot be applied. In Jitendra Kumar Singh’s case (supra), it was held to the following effect: 6 LPA No.1053 of 2011 “75. In our opinion, the relaxation in age does not in any manner upset the ‘level playing field’. It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once, the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible and participated in the preliminary test as also in the physical test. It is only thereafter that successful candidates have been permitted to participate in the open competition.” In Baloji Badhvath’s case (supra) again, the Hon’ble Supreme Court has held that the preliminary examination is not part of the main examination. The merit of the candidate is not judged thereby. It was held to the following effect: “29. Indisputably, the preliminary examination is not a part of the main examination. The merit of the candidate is not judged thereby. Only an eligibility criterion is fixed. The papers for holding the examination comprise of general studies and mental ability. Such a test must be held to be necessary for the purpose of judging the basic eligibility of the candidates to hold the tests. How and in what manner, the State as also the Commission would comply with the constitutional requirements of Article 335 of the Constitution of India should ordinarily not be allowed to be questioned. 30. The proviso appended to Article 335 of the Constitution, to which our attention has been drawn by Mr. Rao, cannot be said to have any application whatsoever in this case. Lowering of marks for the candidates belonging to the reserved candidates (sic categories) is not a constitutional mandate at the threshold. …..” 7 LPA No.1053 of 2011 In view of the judgments referred to above, we find that the policy of reservation for the purposes of short-listing of candidates for the purpose of main examination is not applicable, it being an eligibility test. Therefore, the action of the Commission in not applying the principle of reservation at the stage of preliminary examination cannot be said to illegal, arbitrary or unjust in any manner, which may warrant any interference in appeal. Dismissed. (HEMANT GUPTA) JUDGE 08.09.2011 (VIJENDER SINGH MALIK) Vimal JUDGE 8