Nikhil Kumar Yadav vs Secretary, U.P. Public Service Commission, Allahabad and another

S.R. Singh, J.—Petitioner, a candidate in the lower Subordinate Examination, 1998 conducted by the Public Service Commission U. P. for appointment in group ''C'' category posts advertised by the respondent-Commission in Daily Newspapers displaying 1,395 vacancies, was allotted roll No. 026172. He succeeded in the preliminary examination and thereafter, appeared in the main written examination and on the basis of the marks obtained by him in the written examination, he was called for interview vide letter dated 14.10.1999 which was held on 3.11.1999. The final result was declared by the Commission on 19.12.1999 and was published in the Newspapers on 20.12.1999 but the petitioner''s name did not appear in the list of selected candidates albeit the fact that he had secured a total of 283 marks-equal to four other candidates who were selected. The details of the marks obtained by the petitioner and four other candidates who had secured equal marks are delineated below for ready reference.

Compulsory Papers

Optional

Gen Hindi I

G.K. II

Elementary Math III

Sub I

Sub II

Inter view

Total Comp Sub Exclu ding elem-entary math

Total

Abhishek Srivastava 130125

67

67

A

55

60

34

283

283

Selec-cted

Saroja Kumar Tripathi 8378

62

58

61

58

76

29

283

344

Selected

Arun Kumar Shahi 82695

64

68

57

58

61

32

283

340

Selec-cted

Anil Kumar Singh 131621

66

65

52

66

56

30

283

335

Selected

Nikhil Kumar Yadav

71

62

47

56

57

37

283

330

No

The case of the petitioner is that Sarv Sri Abhishek Srivastava. Saroj Kumar Tripathi, Arun Kumar Shahi and Anil Kumar Singh having secured 283 marks in the aggregate after excluding the marks obtained in Elementary Maths have been selected while the petitioner having secured equal marks has been illegally denied selection without any legitimate basis. It has been canvassed by the learned counsel for the petitioner that in a Writ Petition Being No. 826 (S/B) of 1994. Smt. Renu Mahendra v. State of U. P. and others, a question arose as to what should be the criterion for selection in case of equality of aggregate marks obtained by two or more candidates. In the supplementary counter-affidavit filed by one Sri S. A. M. Jamali, Section Officer, Public Service Commission, U. P., Allahabad in the said writ petition, tt was stated that in such cases, the merits of the candidates is determined on the basis of the following policy decision taken by the Commission :

(i) Candidates who had in the aggregate obtained higher marks in compulsory subjects of written examination and interview would be placed higher in the merit list.

(ii) In case of equality of the aggregate marks in the written examination of compulsory subjects and Interview, the candidates having secured higher marks in Interview would be placed higher In merits ; and

(iii) In case of equality of marks both in the interview and the compulsory subjects of the written examination, a candidate older in age would be placed higher in merits.

The petitioner, it has been submitted by the learned counsel, had secured in the aggregate more marks in the compulsory subjects of the written examination and interview than other candidates mentioned above as would be evident from the chart given herein above. In view of the policy decision taken by the Commission, proceeds the submission, the petitioner was entitled to be selected in preference to the aforesaid candidates who had equal marks in the aggregate of compulsory subjects and interview. For the Commission, however, it has been submitted by the learned counsel relying upon the provisions contained in Rule 15 (4) of the U. P. Civil Services (Executive Branch) Rules. 1982. that if two or more candidates obtained equal marks in aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the merit list.

I have given my anxious consideration to the submissions made above, concededly as per policy decision taken by the Commission as disclosed in the Suppl. counter-affidavit of Sri S, A. M. Jamall. Section Officer, Public Service Commission, U. P., Allahabad in Writ Petition No. 826 of 1994. Renu Mahendra v. State of U. P. and others, the petitioner was entitled to be placed higher in the merit-list inasmuch as he had secured higher marks in the aggregate of the compulsory subjects and in the personality test.

The petitioner has been denied selection on the basis of Rule 15 (4) of the U. P. Civil Services (Executive Branch) Rules. 1982. which visualises that. "The Commission shall prepare a list of candidates in order of their proficiency and aggregate marks obtained by each candidate at the written examination and the interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate securing higher marks in the svritten examination shall be placed higher in the list....." The Rules aforestated, however, admittedly apply to Civil Services (Executive Branch) and ex-facie have no application to the subordinate services. For the Commission, it has however, been submitted that the Commission have taken a decision to prepare the select-list in accordance with the provisions of the rules aforestated vide Commission''s order dated 15.9.1984 on File No. 18-C-1/83-84. A perusal of the decision of the Commission dated 15.9.1984 would be eloquent of the fact that it was restricted to examination of 1983. No policy decision of the Commission was brought to the notice of the Court having the effect of overriding the earlier decision taken by the Commission as delineated in File No. 149 C-79-80 Part 2 page 240 a copy of which has been annexed as Annexure-S.Cl to the Suppl. counter-affidavit filed by the petitioner. In such view of the matter, the petitioner was entitled to be selected in preference to other candidates who had obtained in the aggregate obtained equal marks In the compulsory subjects of the written examination and the Interview.

Assuming that the provisions of the U. P. Civil Services (Executive Branch) Rules. 1982, apply pro (anto to subordinate services as per policy decision, if any. taken by the Public Service Commission, even then the petitioner was entitled to be selected in preference to at least Abhishek Srivastava whose aggregate of marks was 283 whereas the aggregate of marks obtained by the petitioner was 330 inasmuch as the first part of sub-rule (4) of Rule 15 of the Rules aforestated enjoins a duty upon the Commission to prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and the interview. The second part of sub-rule (4) of Rule 15 comes into play only if two or more candidates obtained equal marks in the aggregate in which event "the name of the candidates obtaining higher marks in the written examination shall be placed higher in the list". General Hindi and General Knowledge were the compulsory subjects for the posts other than Naib Tahsildar for which elementary Maths was also compulsory. The aggregate of the marks obtained by the petitioner in General Hindi and General Knowledge comes to 133 whereas the aggregate of marks obtained by SaroJ Kumar Tripathi, Arun Kumar Shahi, and Anil Kumar Singh was 120. 132 and 131 respectively. The aggregate of the marks obtained by the petitioner in the written examination was more than that of Abhishek Srivastava and, therefore, even according to the second part of sub-rule (4) of Rule 15, the petitioner was entitled to be selected in preference to Abhishedk Srivastava in that unlike the policy decision as quoted hereinabove, the rule makes no distinction between compulsory and non-compulsory subjects. Rather, it speaks of "aggregate marks at the written examination."

The next question that surfaces for consideration is whether the petitioner can be granted relief without impinging upon the selection/appointment of any of the candidates selected and appointed on the basis of the recommendations made by the Commissioner. It brooks no dispute that the result of the examination as originally announced, was subsequently modulated on 24.6.2000 thereby rescinding the result of 13 candidates who were declared selected and instead, declaring 12 new candidates who were nor earier declared selected in the list dated 19.12.1999. The 13 candidates whose results were cancelled included 3 candidates of generally category and 12 candidates who were declared successful according to the modified result dated 26.6.2000 included 2 candidates belonging to general category. Thus, there remains one post vacant in the general category. The petitioner, in my opinion, being a general candidate can be assimilated in this vacancy without impinging upon the appointment/selection of the other candidates having secured equal marks.

As a result of foregoing discussion, the petition succeeds and is allowed. The respondent Commission shall recommend the name of the petitioner for appointment on some suitable post according to the merit within one month from the date of receipt of a copy of this order and the State Government in its turn, shall issue appointment letter to the petitioner within one month from the date of receipt of the recommendation by the Commission.