Noor Ali Ansari vs State of U.P. and Others

B.S. Chauhan and Arun Tandon, JJ.—This writ petition has been filed for quashing the minimum marks fixed by the Selection Committee constituted by the High Court of Judicature at Allahabad for filing up the vacancies in U.P. Higher Judicial Service, i.e., 50 percent in the written examination for being called for interview for all category of candidates including the candidates of reserved category.

Facts and circumstances giving rise to this case are that 160 vacancies of Higher Judicial Officer were advertised under the U.P. Higher Judicial Service Rules, 1975 (hereinafter called the "Rules, 1975"). Out of the said vacancies, 84 vacancies were to be filled up by direct recruitment. In view of the provisions of Rule 18 of the Rules, 1975, the Selection Committee fixed the bench mark of 50 percent in the written examination for the candidates to be called for interview for all categories of candidates. The said bench mark is under challenge.

Shri Prabha Shanker Pandey, learned Counsel for the petitioner has submitted that in view of the provisions of Article 16 of the Constitution of India, it was mandatory on the part of the High Court/Selection Committee to fix a lower bench mark for the reserved category candidates and since it has failed to do so, the selection process stood vitiated.

In support of his submissions, Shri Pandey, has submitted that petitioner belongs to Other Backward Class and had there been a different bench mark prescribing some lower marks than 50 percent, he could have been selected. He has further submitted that in other States like, Uttaranchal, Punjab and Haryana 40 percent marks have been fixed as bench mark for reserved category candidates, while 50 percent for general category candidates. The same criteria ought to have been adopted by the respondents.

On the other hand Shri Amit Sthalekar, learned Counsel for the respondents has vehemently opposed the petition contending that Article 16 of the Constitution is merely an enabling provision and fixing the bench mark falls within the exclusive domain of the employer/state authorities. In order to maintain the efficiency, in administration it is always open to the authority concerned to fix the bench mark for all category of candidates in view of the provisions of Article 335 of the Constitution of India. He submits that the petition lacks merit and is liable to be dismissed.

We have considered the rival submissions made by the learned Counsel for the parties and perused the record.

In exercise of power under Rule 18 of the Rules, 1975. the Selection Committee prepared a syllabus for the purpose of recruitment prescribing 5 papers out of which 1st paper was of General Knowledge; 2nd paper of language; 3rd paper of Substantive Law; 4th paper of Law (Procedure and Evidence) and 5th paper for (Penal, Revenue and local laws). Each paper carried 200 marks. It further provided that interview will be of 100 marks. It contained the following note:

The cut off marks in the written examination shall be 50 per cent in respect of all categories and candidates securing the marks above the cut off marks shall only be called for the interview, ----

The marks obtained in the interview will be added to the marks obtained in the written papers and the candidates'' place will depend on the aggregate of both.

Petitioner who appeared in the examination could secure 448 marks out of 1000 in 5 papers as is evident from the mark sheet produced by Shri Amit Sthalekar, learned Counsel for the respondents in the Court. As he secured less than 50 percent marks in aggregate, he was not called for interview.

The question does arise, as to whether the State is bound to provide a different bench mark providing for lower percentage of marks for reserved category candidates.

In C.A. Rajendran Vs. Union of India (UOI) and Others, the Hon''ble Supreme Court considered the scope of Articles 14 16 and 335 of the Constitution and held that Clause 4 to Article 16 is an enabling clause and not an independent provision of law, therefore, requires to be construed strictly. Provisions of Article 16(4) of the Constitution has to be read with in the context and background of Article 335 of the Constitution. Therefore, the State/employer is bound to stick with a balance in the interest of the reserved category candidates and maintenance of efficiency of administration, as efficiency of administration is a matter of paramount importance. Article 16(4) of the Constitution does not impose any duty upon the State to make a reservation or for providing for relaxation for a reserved category candidate. Merely being an enabling provision it confers a discretionary power upon the State to provide for reservation or relaxation for reserved category candidates. While deciding the said case, reliance was placed upon its earlier judgments in The General Manager, Southern Railway Vs. Rangachari, ; M.R. Balaji and Others Vs. State of Mysore, and T. Devadasan Vs. The Union of India (UOI) and Another,

In Ajit Singh and Others Vs. The State of Punjab and Others, , the Hon''ble Supreme Court in paragraph 32 held as under:

Learned senior Counsel for the reserved candidates, Shri K. Parasaran however contended that Article 16(4) and Article 16(4A) confer a power coupled with a duty and that it would be permissible to enforce such a duty by issuing a writ of mandamus. Reliance for that purpose was placed upon Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another, and also on Julius v. Lord Bishop (1880) 5 AC 214 (HL) which case was followed by this Court in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, We are unable to agree with the above contention. As pointed out earlier, the Constitution Bench of this Court in C.A. Rajendran Vs. Union of India (UOI) and Others, , held that Article 16(4) conferred a discretion and did not create any constitutional duty or obligation. In fact, in that case, a mandamus was sought to direct the Government of India to provide for reservation under Article 16(4) in certain Class I and Class II services. The Government stated that in the context of Article 335 and in the interests of efficiency of administration at those levels, it was of the view that there should be no reservation. The said opinion of the Government was accepted by this Court as reasonable and mandamus was refused. Even in M.R. Balaji and Others Vs. State of Mysore, , the Constitution Bench declared that Article 16(4) conferred only a discretion. It is true that in Jagannathan case (supra) the three-Judge Bench issued a mandamus, after referring to Article 142, that the Government must add 25 marks to S.C./S.T. candidates who had taken the S.A.S. Examination for promotion as Section Officers and also that, in future, a reduced minimum marks must be provided and announced before the examination. The Court also observed that the department had not passed orders as per a general O.M. of the Government dated 21.9.1977. But the attention of the Court was not drawn to the judgment of the Constitution Bench in C.A. Rajendran case (supra) and other cases to which we have referred earlier. Further, if the State is of the opinion that in the interests of efficiency of administration, reservation or relaxation in marks is not appropriate, then it will not be permissible for the Court to issue a mandamus to provide for reservation or relaxation. We also note that in Superintending Engineer, Public Health, U.T. Chandigarh and others Vs. Kuldeep Singh and others, Jagannathan case (supra) was followed and reference was made to Article 16(4) and Article 16(4A) and to the principle that where a power is coupled with a duty as in Julius v. Lord Bishop (supra) and Commr. of Police v. Gordhandas Bhanji (supra) the same could be enforced by the Court. But we may point out that even in Kuldeep Singh (supra) no reference was made to C.A. Rajendran (supra'' and other cases. We, accordingly, hold that the view in Jagannithan (supra) and Kuldeep Singh (supra) cases that a mandamus can be issued either to provide for reservation or for relaxation is not correct and runs counter to judgments of earlier Constitution Benches and, therefore, these two judgments cannot be said to be laying down the correct law.

In Union of India (UOI) Vs. R. Rajeshwaran and Another, , while considering the similar provision under Article 15(4) the Apex Court held that Article 15(4) like Article 16(4) confers a discretion and does not create any constitutional duty or obligation in the State to provide for reservation or for relaxation. Therefore, held, that no mandamus can be issued either to provide for reservation or for relaxation and writ cannot be entertained for seeking such a relief.

So far as the issue of competence of the Selection Committee to prescribe minimum qualifying marks is concerned, it is no more res-integra. In State of U.P. Vs. Rafiquddin and Others, the Hon''ble Supreme Court considered the issue at length and held that, the competitive examination is quite different from the examination conducted by the Universities and educational institutions. The purpose and object of competitive examination is to select more suitable candidates for appointment to public office. A person may obtain sufficient high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. The authority concerned is competent to prescribe the minimum marks/bench marks and for that purpose there is no legal requirement to give notice to the candidates. The said Judgment was approved and followed by the Apex Court in Mehmood Alam Tariq v. State of Rajasthan and Ors. AIR 1988 SC 1452 . However, once the Selection Board/Committee/Commission prescribes the minimum qualifying marks and initiates the selection process, it cannot alter the same at any subsequent stage of the section. (Vide Maharashtra State Road Transport Corporation and Others Vs. Rajendra Bhimrao Mandve and Others,

In K.H. Siraj Vs. High Court of Kerala and Others, , while dealing with a similar issue the Apex Court held that it was open to the high to prescribe minimum passing marks for written and oral examination in order to get best available talent. The purpose is to find out the suitable candidates and the High Court was alone to know what was its requirement for appointment in subordinate Judiciary, what qualities the judicial officers should possess on judicial as well as on administrative sides. Since the High Court was the best Judge of what should be the proper mode of selection, no interference is permissible on judicial side, that is why the High Court is conferred with a very wide power to evolve its opinion, procedure and in exercise of such power where the procedure is evolved which is germane and best suited to achieve the object, it is not proper to scuttle the same as beyond its powers. While deciding the said issue, reliance had been placed on the earlier judgment in Union of India (UOI) and Others Vs. Kali Dass Batish and Another,

The benefit of the statutory/constitutional provisions of such beneficial legislation is to be given effect keeping in mind the provisions of Article 335 of the Constitution of India which specifically provides for maintenance of efficiency of administration. Reservation/relaxation in educational institution and in employment can be provided under Article 15(1) or 16(1) or 16(4) of the Constitution of India, but both the said provisions enable the competent authority to provide for reservation, they are merely enabling provisions, while Article 335 is in mandatory language. (Vide Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association Vs. Union of India (UOI) and Others, ; Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., ; Dr Preeti Srivastava and Another Vs. State of M.P. and Others, and Indira Sawhney Vs. Union of India and Others,

A Constitution Bench of the Hon''ble Supreme Court in E.V. Chinnaiah Vs. State of Andhra Pradesh and Others, held as under:

Furthermore, the emphasis on efficient administration placed by Article 335 of the Constitution must also be considered when claims of Scheduled Castes and Scheduled Tribes to employment in the services of the Union are to be considered.

A Constitution Bench of the Apex Court in M. Nagaraj and Others Vs. Union of India (UOI) and Others, , examined the validity of the Constitution (Seventy Seventh Amendment) Act, 1995; the Constitution (Eighty First Amendment) Act, 2000; the Constitution (Eighty Second Amendment) Act, 2000 and the Constitution (Eighty Fifth Amendment) Act, 2001, providing for reservation to Scheduled Castes in promotions, which also provided for relaxation of qualifying marks etc. and held that constitutional limitation of efficiency under Article 335 can be relaxed but not obliterated. The Court observed as under:

If the appropriate Government enacting a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation.... It is for the State concerned to decide in a given case, whether the overall efficiency of the system is affected by such relaxation. If the relaxation is so excessive that it ceases to be. qualifying marks then certainly in a given case, as in the past, the State is free not to relax such standards in other cases, the State may evolve a mechanism under which efficiency, equity and justice, all three variables could be accommodated.

Thus, only in exceptional cases, for compelling interest of the reserved category candidates, the State may relax the qualifying marks after identification by weighing the comparable data, without affecting general efficiency of service as mandated under Article 335 of the Constitution.

In view of the above, the law can be summarised as that In order to make the appointments in higher judicial service, if the Legislature has conferred a discretion upon the High Court to evolve a procedure to find out the best suitable candidates and such a procedure Is evolved, It does not require any interference merely because the enabling provision providing for reservation or relaxation has not been put to use.

In view of the above, petition is devoid of merit and Is accordingly dismissed.