Shabnam v. Uttarakhand Public Service Commission, others

Judgment

(per Hon’ble Justice Sri Manoj Kumar Tiwari)

1. Uttarakhand Public Service Commission issued advertisement

01.06.2019, inviting applications for appointment against 15 vacancies on the post of Civil Judge (Junior Division), out of which 7 were reserved for Other Backward Classes. By corrigendum dated 27.08.2019, issued by the Commission, number of vacancies was increased to 28, however, number of vacancies reserved for Other Backward Classes remained unchanged. Petitioner responded to aforesaid advertisement and claimed benefit of reservation available for Other Backward Classes.

2. The selection process consisted of preliminary examination followed by main examination. Candidate, who qualified the preliminary examination alone were to be permitted to appear 1 in mains examination and thereafter interview, however the marks scored in preliminary examination were not to be considered determining final merit of a candidate.

3. As per Clause 18(12)(i) of the advertisement, candidates scoring 50% or more marks in the mains examination alone would be eligible to be called for interview, however for SC, ST and OBC category candidates, this condition was relaxed and it was provided that candidates belonging to these reserved categories, will be eligible for interview if they score 40% or more marks in the main examination.

4. Petitioner participated in all the three stages of selection and according to her, she scored 370 marks out of 850 in the written examination and 56 marks out of 100 in the interview, and her total score of marks was 426 upon 950, which is 44.8% of the total marks.

5. Petitioner’s name did not figure in the list of successful candidates published on 22.12.2020, therefore she made a representation dated

23.12.2020 to the Secretary, Uttarakhand Public Service Commission, contending that respondent Nos. 3 to 8, who have been selected against vacancies reserved for OBC category, should have been selected against the 9 unreserved vacancies, 2 which have been carried forward for want of suitable candidates.

6. She stated in her representation respondent Nos. 3 to 8 have scored more than 45% marks in the selection process, therefore, as per condition mentioned in Clause 18(12)(ii) of the advertisement, these candidates are entitled to be selected and recommended against unreserved vacancies, and she would then be selected against a vacancy reserved for Other Backward Classes.

7. The representation made by petitioner was rejected by Secretary, Uttarakhand Public Service Commission vide order dated 20.01.2021, by holding that as per the amendment made in Uttarakhand Judicial Service Rules in the year 2011, for unreserved posts, a candidate is required to score minimum 50% marks the written examination, since respondent Nos. 3 to 8 scored less than 50% marks in the mains examination, therefore, cannot selected recommended against unreserved vacancies.

8. Petitioner, thereafter, another representation on 27.01.2021, which was rejected Secretary, Uttarakhand Public Service Commission, vide order dated 23.03.2021. Thus, feeling aggrieved, petitioner has filed this writ petition seeking following reliefs:- 3 “i) Issue a writ, order in the nature of certiorari, quashing the impugned order dated 20.01.2021 and order dated 23.03.2021 issued by the respondent No. 1 (contained as Annexure Nos. 6 & 9 respectively), ii) Issue a writ, order or direction in the nature of mandamus, commanding/directing the respondent nos. 1 & 2 to adjust/appoint the private respondent nos. 3 to 8 under General Category, in pursuance with clause 18(12(ii) of the advertisement dated 01.06.2019. iii) Issue a writ, order or direction in the nature of mandamus, commanding/directing the respondent nos.1 & 2 to republish the final selection result of candidates by correctly applying the reservation policy, as well as invoking provision prescribed in clause 18(12)(ii) of the advertisement dated 01.06.2019, including the name of petitioner herein.”

9. Learned counsel appearing for the petitioner relied upon clause 18(12)(ii) of advertisement contending that, respondent Nos. 3 to 8 had scored more than 45% marks, which is the cut-off marks fixed for General Category candidates, therefore, they should have been selected and recommended for appointment against unreserved vacancies. Thus, he contends that rejection of petitioner’s representation by Secretary, Uttarakhand Public Service Commission vide order dated 20.12.2021 and 23.03.2021 is unsustainable.

10. Learned counsels appearing for respondent Nos. 1 & 2, however, contend that as per applicable recruitment rules, namely, Uttarakhand Judicial Service Rules, 2005, as amended vide notification dated 11.03.2011, candidates who obtained 50% or 4 more marks or corresponding grade, if any, in the written examination, alone shall be eligible for viva- voce/ interview, however, for SC, ST and OBC candidates, requirement of 50% marks in written examination was relaxed to 40%. Thus, they contend that since respondent Nos. 3 to 8 had availed the benefit of relaxed cut-off marks by virtue of their caste status and without such relaxation, respondent Nos. 3 to 8 were not eligible to be called for interview/viva voce, therefore, they cannot be selected and recommended appointment against unreserved vacancies, even if they scored 45% marks in Main Examination and interview taken together.

11. It is not in dispute that mains examination was of 850 marks, therefore, as per the condition contained in Rule 14(i) of Uttarakhand Judicial Service Rules, 2005, as amended in the year 2011, a General Category candidate had to score minimum 50% marks i.e. 425 marks for being called for interview.

12. Petitioner has disclosed the marks scored by respondent Nos. 3 to 8, in the mains examination,

in tabular form in para 7 of the writ petition. Perusal thereof reveals that respondent No. 3 had scored 406/850 marks in mains examination, while respondent Nos. 4 and 5 had scored 400 and 401 marks respectively out of 850 in the mains 5 examination, while respondent Nos. 6, 7 & 8 had scored 395, 392 & 383 marks respectively in mains examination out of total 850 marks. Thus, all the private respondents had scored less marks than what was required of a General Category candidate and they were called for interview by giving benefit of relaxed standard, meant for Other Backward Classes.

13. Law is well settled that if a reserved category candidate gets selected for appointment to a post without getting any relaxation in eligibility criteria, then he has to be appointed against unreserved post. The observation made by Hon’ble Supreme Court, in para 5 of the judgment rendered in the case of Post Graduate Institute of Medical Education & Research, Chandigarh and others Vs. K.L. Narasimhan and another, reported in (1997) 6 SSC 283 would be apposite, which is extracted below:- “5. …………It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate.”

14. In the case of Government (NCT of Delhi and others v. Pradeep Kumar and others), reported in (2019)10 SCC 120, Hon’ble Supreme Court held that a reserved category candidate cannot compete for open category vacancies 6 despite scoring marks sufficient for his selection against such category, if he has availed the benefit of relaxed standard given to OBC category candidate. Paragraph nos. 20 and 21 of the said judgment are reproduced below:- “20 It is important to keep in mind that the respondents are competing for general category vacancies. All others in this group have obtained their CTET eligibility qualification, securing the normal pass marks without availing any relaxation of pass norms. On the other hand, the respondents despite their lesser marks in the CTET examination, could qualify only because they availed the relaxation benefits as OBC category examinees. Their eligibility qualification is secured under relaxed norms meant for OBC category and therefore we do not think it is proper to consider them to be eligible for the general category vacancies and contention to the contrary is unacceptable.

21. The respondents with their CTET qualification under relaxed norms would be eligible for OBC category posts provided their OBC status is certified and recognized by the Delhi government. But such not being the case, they are ineligible for the reserved category vacancies. To allow them to migrate and compete for the open category vacancies would not be permissible simply because they have secured the CTET qualification with relaxation of pass marks meant for those belonging to the OBC category. As the respondents have not secured the normal pass marks for general category, their eligibility for the general category vacancies is not secured. Therefore, their performance in the selection examination would be of no relevance, in the present process.”

15. Since petitioner has relied upon clause 18 (12) (ii) of the advertisement dated 01.06.2019 while respondents have relied upon Clause 18 (12) (i) of the said advertisement, therefore, entire Clause 18 (12) is reproduced below:- **18 ¼12½ U;wure vgZd vad%& ¼i½ mRrjk[k.M U;kf;d lsok ¼la’kks/ku½ fu;ekoyh&2011 ds izkfo/kkukuqlkj fyf[kr ijh{kk esa 50 izfr’kr ;k mlls vf/kd vad ;k rRleku Js.kh] ;fn dksbZ gks] izkIr djus okys lHkh vH;FkhZ ekSf[kd ijh{kk ds fy, ik= gksaxs] ijUrq ;g fd fyf[kr ijh{kk esa 40 izfr’kr ;k mlls vf/kd vad 7 ;k rRleku Js.kh] ;fn dksbZ gks] izkIr djus okys vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa rFkk vU; fiNM+k oxZ ds vH;FkhZ ekSf[kd ijh{kk ds fy, izk= gksaxs**A ,sls vH;FkhZ tks dEI;wVj lapkyu ds vk/kkjHkwr Kku dh izk;ksfxd ijh{kk esa 40 izfr’kr ls de vad izkIr djsaxs] mudh eq[; ijh{kk dh mRrj iqfLrdkvksa dk ewY;kadu ugh fd;k tk;sxkA ¼ii½ mRrjk[k.M yksd lsok vk;ksx ijh{kk ifj.kke fuekZ.k izfdz;k fu;ekoyh&2012 ¼le;≤ ij ;Fkk la’kksf/kr½ ds vuqlkj vH;fFkZ;ksa dks vafre p;u gsrq fu;ekoyh }kjk fu/kkZfjr U;wure vgZd vad ;Fkk&lkekU; Js.kh ,oa lEcfU/kr miJs.kh ds inksa gsrw ijh{kk esa iw.kkZad dk U;wure vgZdkjh vad 45 izfr’kr] vkfFkZd :i ls detksj oxZ ,oa lEcfU/kr miJs.kh ds fy, vkjf{kr inksa gsrq U;wure vgZdkjh vad 40 izfr’kr] vU; fiNM+k oxZ Js.kh ,oa lEcfU/kr mi Js.kh ds fy, vkjf{kr inksa gsrq U;wure vgZdkjh vad 40 izfr’kr rFkk vuqlwfpr tkfr@vuqlwfpr tutkfr ,oa lEcfU/kr mi Js.kh ds fy, vkjf{kr inksa gsrq vgZdkjh vad 35 izfr’kr izkIr djuk vfuok;Z gSA**

16. A careful perusal of Clause 18 (12) (i) reveals that requirement of scoring minimum 50% marks in the main examination, which is relaxable for reserved category candidates, is taken from the Recruitment Rules applicable for the post of Civil Judge. The condition mentioned in Clause 18 (12) (ii) of the advertisement, which lays down the minimum cut off marks for final selection of candidates belonging to different categories is taken from Uttarakhand Public Service Commission Examination Result Preparation (Procedure) Rules,

17. Petitioner has relied upon Clause 18 (12) (ii) for contending that respondent nos. 3 to 8 are entitled to be selected against unreserved vacancies by virtue of their score of marks in written + interview, which is more than 45%. 8

18. The said contention, however, cannot be accepted. Every selection has to be made strictly as per the applicable recruitment rules, and the Procedure Rules, if any, framed by the Selecting Body/Public Service Commission cannot override the express provisions of the recruitment rules. In other words, the Rules framed by the selecting body have to give way to the Recruitment Rules. As per the Recruitment Rules, respondent nos. 3 to 8 were not eligible to be called for interview in the absence of relaxation meant for reserved category candidates. After having availed the benefit of relaxed standard of merit in the main examination, respondent nos. 3 to 8 could not have been recommended for appointment against unreserved vacancies. Thus, course adopted Uttarakhand Public Service Commission cannot be faulted. There is no illegality in the order passed by the Commission on the representations submitted by petitioner.

19. Thus, there is no scope for interference in the matter. The writ petition fails and is dismissed. No order as to costs. (Ashish Naithani, J.) (Manoj Kumar Tiwari, J.) Arti

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