Ashok Kumar Bharti vs State of U.P.& Ors.

Palok Basu, J.—Ashok Kumar Bharti has filed this writ petition praying that U. P. Public Services Commission, Allahabad be commanded to recommend the name of the petitioner as a candidate selected on the basis of the combined State/Upper Subordinate Services (Mains) Examination, 1993. During the course of argument this prayer was confined for the post of SubRegistrars which was said to have been included in the mains examination of 1993. At the time this writ petition was filed a counter affidavit was called which has been filed. Rejoinder affidavit has also been filed.

An interesting question of law and fact has arisen in the instant case. The advertisement for the preliminary examination for the year 1993 was published in the Rojgar Samachar 1 to 7 May, 1993. Translated into english, the qualification for the candidates for the preliminary examination was that on the day of application the candidate should be possessing graduate degree from a recognised University. It may be mentioned here thatsaid advertisement neither specified any posts nor number of posts nor individual qualifications for the differeiit posts which were combined in the said examination.

The basis for the petitioner''s writ petition is that now the petitioner possessed Law Degree which he obtained during the period between the preliminary examination and the main examination, he should be considered for the post of SubRegistrar and the fact that one of the candidates selected viz. Km. Shushma had secured 876 marks and was declared successful, entitles the petitioner to be declared successful for he had obtained admittedly 884 marks.

Shri Ashok Khare, learned counsel for the petitioner in order to substantiate the claim of the petitioner vehemently argued that Law Degree was not mentioned as one of the qualifications which may be possessed by the applicants at the time of appearing at the preliminary examination and therefore, the stand pleaded in the counter affidavit by the Public Service Commission that the petitioner has obtained the law degree subsequent to the preliminary examination should not be entertained. In this very connection he placed reliance upon two decisions. One is the Full Bench decision of our Court in the case of Uma Shankar Singh and others v. Chairman Public Service Commission, U. P. reported in (1992) 2 UPLBEC, Page 1412. The other one is by a Division Bench including one of us (Palok Basu, J) in Civil Misc. Writ Petition No. 4705/95 Narendra Pratap Sahai v. State of U. P. & Others. Reference about these two decisions shall be made a little later. It may however, further be noted here that during the course of arguments Shri Khare submitted that the State of U. P. had by their letter dated 2221994 requested the Public Service Commission to select candidates for "twenty posts'' of SubRegistrars from out of the candidates who have appeared at the combined examination of 1993. In this connection it was emphatically said that since the State of U.P. itself claimed the recommendation from the Public Services Commission regarding the twenty posts as late as on 2221994, the petitioner''s attaining the qualification of having law degree in between the preliminary examination and the main examination should not stand in any way of his being recommended as a successful candidate. Shri V. M. Sahai however advanced an equally forceful argument in reply. He argued that while it is a fact that the advertisement may be defective in the sense that it did not specifically delineate the qualifications for the combined posts required for each discipline, the petitioner was having experience of preliminary examination for the fast year also. Consequently reliance was placed on advertisement for the last year''s examination which specifically noted that the educational qualification for the posts of SubRegistrar would be a law degree. Therefore, it was argued by Shri Sahai that the petitioner knew that the post for which law degree was essential was that of SubRegistrars. In this connection it may be mentioned that in the choice of posts that the petitioner admittedly filled at the time of Interview he mentioned the post of SubRegistrar at SI. No. 5. The other posts which the petitioner preferred related to other departments.

Keeping these points in view it has to be determined whether the petitioner can say that he was possessing the requisite qualification and therefore his name should have been recommended as a successful candidate. This necessitates a close look at the Uttar Pradesh Direct Recruitment Through Public Service Commission Preliminary Examination Rules, 1986. In the Section2 where various words have been defined the word "post" means any post or posts, the selection for which is made through the Commission and in that connection "Service Rules" means the rules prescribing method of recruitment for those posts. Section3 empowers holding of preliminary examination. SubRule (1) thereof indicates that notwithstanding anything to the contrary contained in the relevant service rules the Commission may with the prior approval of the Government hold preliminary examination for selection of suitable candidates for admission to main examination.

Immediately, therefore, once is tempted to know whether the posts for a candidate may be clamouring on the day of preliminary examination the requisite qualifications as per the Service Rules are being possessed by him or not. It is undisputed that as for the posts of SubRegistrar the Bachelor Degree in Law is an essential qualification under the Service rules.

It therefore, follows that the petitioner did not possess the essential qualification for the post of SubRegistrar on the day he was appearing in the preliminary examination.

A point has been made in the counter affidavit that for the purposes of qualification the cut of date should be 1461993 by which time the applications for preliminary examinations were to be filed. It is stated in the counter affidavit thus:

"The cut of date so far as eligibility of a candidate with regard to examination in dispute is 1461993 and on this date the candidates must possess the eligibility, age etc. for various posts. Since admittedly the petitioner passed his preliminary examination after 1461993 and as such he was not holding a Bachelor of law degree on the cut of date on 1461993 and as such petitioner was not eligible to apply or the take examination for the post of SubRegistrar which prescribes a special qualification of holding the LL.B. degree also and Commission cannot fix double standard and cannot go on considering the eligibility of a candidate at all stages of examination and eligibility of the candidate has rightly been determined by the Commission."

Coming to the Full Bench decision it may be mentioned that the qualifications therein were already advertised and the Full Bench did go into the procedure which was essential for permitting the candidates to appear at the main examination. Consequently, reliance on the said decision by the learned counsel for the petitioner is misplaced. Likewise the other Division Bench decision in Narendra Pratap Sahai (supra) the two definitions as given in the U. P. Act No. 4 of 1994 was up for consideration. On the language used therein it was held that the reservation quota will be applicable on the day the main examination was to be conducted. Consequently, this ruling also does not help the learned counsel for the petitioner.

Before parting, two points may be mentioned here for future guidance. First, the Public Service Commission who shall advertise the qualifications for each and every post for which combined examinations are held. If this is done no controversy will arise in the mind of the candidates which may be otherwise baffled by such type of mistakes. Second, the petitioner''s reliance on the letter of the State Government issued subsequently cannot be permitted to be a basis for granting him any relief for three reasons. First, that this letter was in continuation of some earlier letter as its reading will itself indicate, that may be indicative of the fact that some posts of SubRegistrar were increased or decreased. Second that the petitioner himself filled in the choice of SubRegistrar as No. 5 in the relevant column mentioned at Interview after the mains examination. Thirdly, the knew all the qualifications which should have been with him. Law degree was not a qualification for the other posts he had given the choice for as preference to the post of SubRegistrar. Consequently, he has no right to claim appointment for the post of SubRegistrar and therefore he cannot claim that his name should be recommended by the Public Service Commission. Lastly that the petitioner has secured marks much lesser than other schedule caste candidates and therefore, he has not been selected for the post for which he was having qualification on the date he had made the application for appearing in the preliminary examination.

In view of the aforesaid discussions, the writ petition fails and is dismissed.