Raj Kumar Uttam vs State of U.P.and another

K. L. Sharma, J.—The petitioner has filed this writ petition under Article 226 of the Constitution of India for the issue of a writ of certiorari quashing the amendment of the result of Combined State Services Examination 1987 published by the Public Service Commission, U. P. in its notice dated 5th May, 1989 contained in Annexure7 to the writ petition. The petitioner has also prayed for the issue of a writ of mandamus commanding the opposite parties to appoint the petitioner in U. P. Agriculture Service Class 11, Section ''B'' on the basis of the result declared by the Commission prior to amendment. The relevant facts necessary for appreciation of and decision on the controversy between the parties are stated as follows.

The petitioner appeared at the Combined State Service Examination held by the Public Service Commission for the year 1987. The petitioner being a Graduate in Agriculture and belonging to a backward class applied for his selection on the post of District Agriculture Officer included in U. P. Agriculture Service Class II, Section ''B'' against reserved quota of backward class. After holding the competitive examination and the interviews of the candidates found successful at the written examination, the Commission declared the final results of the examination by publishing the merit list of the successful candidates on 24289. The petitioner was finally declared successful and included in the merit list at SI. Mo. 55 as a backward candidate for appointment in U. P. Agriculture Service Class 11, Section ''B'' vide Annexure5 to the writ petition. The petitioner legitimately expected his appointment to U. P. Agriculture Service and waited for long. In June 1991, the petitioner approached the office of the Commission at Allahabad and there he came to know that the original result of the examination had been amended by excluding the petitioner from the list of successful candidates by issuing the notice dated 5589 contained in Annexure7 and the names of S/Sri Satveer Singh, general candidate and Vijai Singh, backward class candidate were declared successful candidates, and Sri Banwari Lal, general candidate and Sri Raj Kumar Uttam (Petitioner), backward class candidates declared successful earlier on February 24, 1989 were excluded from the merit list of successful candidates of general candidates and backward class candidates respectively. Then the petitioner made representation to the Secretary, Public Service Commission, U. P., Allahabad for issuance of an appointment order at an early date. The petitioner did not, however, receive the appointment order and filed this writ petition. By supplementary affidavit, the petitioner averred on 15192, the State Government directed and requested the Secretary, U. P. Public Service Commission, Allahabad for recommendation of one more backward class successful candidate of the merit list of 1987 for consideration of appointment to the service vide Annexure Sl to the supplementary affidavit, but the Commission has not complied with the request of the government and has illegally and arbitrarily refused to recommend the name of the petitioner, whereas he was included in the merit list published on 2421989.

On behalf of the Public Service Commission, opposite party No. 2, a counter affidavit has been filed admitting the fact that the petitioner was earlier included in the merit list at SI No. 55 in the category of backward class quota. It has been further stated that after the declaration of the final results on February 24, 1989, it was discovered that four candidates S/Sri Satveer Singh, Govind Singh, Haridra Prasad Singh and Vijai Singh were also eligible to be called for personality test but due to wrong coding of service group by the computer, they were not called for interview. It was further stated that after detection of this error, they were called for interview, and after their interview by the Commission, the earlier results were amended in order to accommodate the candidates securing higher marks in the merit list, and consequently Sri Satveer Singh (general) and Sri Vijai Singh (backward class) were finally selected on merit depending on their marks, and Raj Kumar Uttam (backward class) and Banwari Lal (general) were excluded from the merit list published in February 1989 by issuing an amendment order on 551989. The marks obtained by the candidates have also been mentioned in para 3 of the counter affidavit. By an additional affidavit filed by the Section Officer of the Public Service Commission, it was stated that the Commission considered the proposal and request of the government contained in the letter dated 1511992, but finding no provision for carrying forward the vacancies of the backward classes in the reserved quota did not recommend one more name for a vacancy refer ed to by the government.

By a rejoinder affidavit, the petitioner made the allegation that the records relating to the examination were manipulated in the office of the Commission, and the petitioner is entitled to be appointed on the basis of his own merit in the reservation quota, and the Commission is duty bound to recommend the name of the petitioner for appointment in response to the request of the government contained in its letter dated 15192.

We have heard Sri S. C. Srivastava, learned Counsel for the petitioner, and Sri Pradeep Kant, learned Counsel for the Public Service Commission, and perused the record.

6 At the outset it may be mentioned that in order to verify the allegation of the petitioner that there has been some manipulation in the records of the Commission, we directed the Commission to produce for perusal of the Court the original records consisting of (i) answer scripts of the petitioner and the four candidates who were subsequently interviewed, (ii) the examiners'' marksheets (iii) the computer''s tabulation sheet of the written examination (iv) marksheet of the personality test, and (v) the final merit list of all the candidates interviewed by the Commission. The Commission could not produce the original answer scripts for the reason that the original answer scripts of the examination of 1987 had been destroyed under the rules of the Commission. However, the Commission produced the remaining original documents. After careful perusal of all these documents, we unhesitatingly came to the conclusion that there has been no manipulation, correction or alteration in the marks obtained by the petitioner and the other four candidates who were subsequently called for interview on the discovery of the mistake committed by the computer. As such the allegation of the petitioner regarding manipulation of examination record with a view to oust him from the merit list has not been substantiated. The four candidates called for interview by the Commission later on discovery of the computer''s mistake deserved the same on the basis of the marks obtained in the written examination, and two of them, namely. Satveer Singh (general) and Vijai Singh (backward class) were finally included in the merit list on the basis of the aggregate of marks obtained by them in the written examination as well as in the personality test visavis other successful candidates. On this ground the amendment made by the Commission in the final merit list already declared on February 24, 1989 was justified on facts and in law. Therefore, this amendment made by the Commission on 5589 contained in Annexure7 to the writ petition is not liable to be quashed.

However, the learned Counsel for the petitioner submitted that the petitioner had stood successful in the written examination as well as in the personality test and on the basis of the aggregate marks obtained by him, he was included in the final merit list, and as such his suitability after securing about 52 per cent of marks in the aggregate was established, and as such the request of the government contained in letter dated 1511992 contained in Annexure Sl to the supplementary affidavit of the petitioner must have been complied with by the Commission by recommending the name of the petitioner for appointment to the U. P. Agriculture Service under the reserved quota. The learned Counsel further submitted that the Commission is legally duty bound to make recommendations of selected and suitable candidates in response to the requisition/request of the government for appointment and the Commission does not have any legal authority to question the decision of the government and to refuse to recommend the names of the suitable and successful candidates for appointment as desired by the government, which merely asked for the recommendation of one more qualified candidate of the backward category on the results of the examination of 1987. The learned Counsel for the Commission Mr. Pradeep Kant replied that the Commission cannot be compelled by the government to recommend any candidate if there is no provision for carrying forward the vacancies of backward classes, and the Commission was justified after considering the request of the government to refuse to make recommendation. However, the learned Counsel for the Commission could not produce or refer to any provision of law or a judicial pronouncement in support of the stand of the Commission.

As already stated, we find on admitted facts that the petitioner was a fully qualified, suitable and successful candidate for appointment to U. P. Agriculture Service Class II on the basis of the aggregate of the marks obtained by him in the written examination and the personality test. It is clear from the letter dated l5l1992 (Annexure Sl to the supplementary affidavit of the petitioner) that the government informed the Commission that while carrying forward the vacancies of the backward classes, the government found a vacancy to be filled up by a backward candidate, and accordingly requested the Commission to send the name of one more backward candidate, who has been found successful and suitable in the examination of 1987. The government did not ask the Commission to recommend a specific candidate by name, or any candidate who was not found qualified and suitable for the desired appointment. The learned Counsel for the Commission Mr. Pradeep Kant hinted that in the case of State of U. P. v. Rafiquddin (AIR 1988 Supreme Court 162) the Supreme Court deprecated the tendency of the government to force the Commission recommend more names after the declaration of the final results and appointments of selected candicates by the government, by lowering the standard of Selection by the Commission.

The relevant views of the Apex Court in the case of Rafiquddin (supra) are reproduced below :

"The Public Service Commission is an independent expert body. It has to act in an independent manner in making the selection on the prescribed norms. It may consult the State Government and the High Court in prescribing the norms for judging the suitability of candidates if no norms are prescribed in the Rules. Once the Commission determines the norms and makes selection on the conclusion of the competitive examination and submits list of the suitable candidates to the Government it should not reopen the selection by lowering down the norms at the instance of the Government. If the practice of revising the result of competitive examination by changing norms is followed there will be confusion and the people will lose faith in the institution of Public Service Commission and the authenticity of selection."

On facts and law mentioned in the case of Rafiquddin (supra), the present case is clearly distinguishable, and the Commission cannot justify its refusal on the basis of that decision for recommending one more candidate of backward category as requested by the Government.

The learned Counsel for the petitioner invited our attention to the provisions of Article 320 of the Constitution of India. We consider it fruitful to reproduce the said provisions as follows:

"320, Functions of Public Service Commissions (1) It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.

(2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more States so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required.

(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted

(a) on all matters relating to methods of recruitment to civil services and for civil posts ;

(b) on the principles to be followed in making appointments to civil services arid posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;

(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;

(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India or, as the case may be, out of the Consolidated Fund of the State ;

(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them :

Provided that the President as respects the AllIndia services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.

(4) Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which effect may be given to the provisions of Article 335.

(5) All regulations made under the proviso to clause (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid."

On perusal of these provisions contained in Article 320 of the Constitution, we clearly find that the Commission is only an advisory body in the matters relating to methods of recruitment, promotion, transfer, punishment and award of pension in respect of civil services and civil posts under the Government. It is the duty of the Commission to conduct examinations for appointments to the services on the requisitions made by the Government. The President and the Governor of a State have been empowered to make regulations specifying the matters in which either generally, or in any particular class of case, or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. The Constitution has itself provided by clause (4) of Article 320 that nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which the effect may be given to the provisions of Article 335. This clause clearly takes away the jurisdiction of the Commission in the matter of reservation of backward classes made by the Government under clause (4) of Article 16, which runs as follows :

"(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."

The Commission cannot also interfere with the manner in which the effect may be given by the Government to the provisions of Article 335, which refers to the maintenance of efficiency of administration in the making of appointments visavis the reservation of the members of the scheduled caste and the scheduled tribes. In view of the provisions of Article 320, Article 16(4) and Article 335 of the Constitution, the Commission cannot refuse to comply with the request or requisition of the Government for making a recommendation of a qualified and suitable candidate for a particular civil post or civil service under the Government.

The Commission cannot question the authority and wisdom of the Government in making reservations in favour of the backward classes, scheduled caste and scheduled tribes. It is the Government, namely, the President of the Union, or the Governor of the State which is the only appointing authority for all civil posts and civil services under the rule making power of the President, or the Governor of a State. It is the Government which has a right and jurisdiction to specify a reservation and prescribe the manner in which the effect may be given to the reservation. In the case of Indra Sawhnay v. Union of India (ALR 1993 Supreme Court 477), a Bench of nine Judges of the Hon''ble Supreme Court has held that the reservation can be effected by the Government in public services even by issuing executive directions from time to time by a general or special order, and no legislation is called for to carry out the policy of reservation envisaged by Article 16 (4) read with Article 335 of the Constitution. The Court has also permitted the executive Government to decide after periodical evaluation of the need for reservation as the circumstances may require and no period of reservation has been provided. Therefore, this is the exclusive domain of the executive Government to consider the need of reservation in public services, or at a particular post from time to time, and if by special order the Government requires the Commission to send more names of suitable candidates in a particular category of service, it does not lie within the competence or jurisdiction of the Commission to refuse to comply with the request of the Government. The Commission has no jurisdiction to challenge the request of the Government that the request is not founded on the basis of the existing provisions of reservation or the manner of fulfilment of reservation quota. It is not always necessary for the Government to issue general orders for making reservation or the manner of fulfilment of reservation quota in all the services of civil posts, but it has also got power to issue special order considering the need for reservation on a particular post and has also got the power to decide the manner in which the effect can be given to such a reservation on a particular post at a particular time. In view of this legal position, the stand of the Commission that there is no provision existing for carrying forward the vacancies of the backward classes against the reserved quota, is wholly unjustified, unreasonable, arbitrary and contrary to law. The contention of the learned Counsel for the petitioner is, therefore, accepted.

Mr. Pradeep Kant, learned Counsel for the Commission also contended that the petitioner being only a selected candidate does not have a right to appointment even though recommended by the Commission in response to the request of the Government. It is true that a selection does not confer a right on the selectee to claim the appointment on the basis of his selection. The selection by a selection committee, Commission or other examining body also makes it clear in their advertisement that the selection does not guarantee any appointment The reason is obvious. There are service rules framed under proviso to Article 3 9 of the Constitution of India that before appointment to a service the appointing authority shall get the selected candidate examined medically in outer to find his suitability; get his antecedents verified in order to find him suitable regarding conduct, the marital status, qualifications etc. The appointing authority is not bound by the recommendations of the selection committee and it has the power to accept, reject and order for reselection after fresh advertisement. Therefore, the contention of Mr Pradeep Kant is correct to the extent that mere recommendation of the Commission about a selected candidate may not bring the appointment to the candidate. But, there is a legitimate expectation of a selected candidate to get the appointment and generally or normally he gets it if he fulfils the other requirements prescribed by the service rules and nothing adverse against him comes to the notice of the appointing authority before the appointment is made. This legitimate expectancy of the petitioner cannot, however, be thwarted by the wrongful and illegal refusal of the Commission to recommend the name of the selected candidate in response to the request made by the Government. Let the Commission do its duty and comply with the request of the Government and leave it to the Government for consideration of the recommended candidate for appointment in accordance with the service rules and to the satisfaction of the appointing authority.

The doctrine of legitimate expectancy has been recently propounded and recognised by the Hon''ble Supreme Court in the case of NavJyoti Coo.Group Housing Society v. Union of India (AIR 1993 Supreme Court 155), on the basis of which the petitioner having a legitimate expectation of being treated in a certain way has a right to be given an opportunity to make a representation in that matter. If the authority proposes to defeat that person''s expectation, and against the denial of that opportunity by the public authority, the aggrieved person has a right to maintain his writ petition. In the present case the Commission exercised its authority against the petitioner by excluding his name from the merit list alrady decleared for reasons beyond the comprehension and knowledge of the petitioner to his disadvantage and defeated his legitimate expectation of receiving an appointment to the service. The petitioner was not given any information by the Commission itself to as to afford an opportunity to the petitioner to make a representation, howsoever fruitless and abortive it might have been. The Commission should not have acted in the peculiar circumstances of the present case to defeat the legitimate expectation of the petitioner if the government had requested the Commission to recommend one more name of the category of backward class for appointment in a vacancy available on the basis of carrying forward the reservation of backward classes from previous years, on the basis of the result of the 1987 examination. Neither the Commission lost anything in the matter of its constitutional powers or in the matter of its prestige when it had already recognised and rectified its mistake by calling subsequently qualified candidates for personality test and for including them in the merit list by modification of the earlier results declared. On the other hand, there has been defiance of the request of the Government, which was not legally sustainable on the part of the commission. In addition, the legitimate expectation of the petitioner having successfully competed and being included in the merit list has been unreasonably defeated by the act of the Commission.

For the aforesaid reasons and in the facts and circumstances of the case, the petitioner is entitled to get a direction to the Commission for compliance of the request of the Government contained in its letter dated 15.1.92, but the writ of certiorari cannot be issued to quash the modification of the merit list made by the Commission on 5.5.1989 contained in Annexure7 to the writ petition. The matter of appointment on the basis of the recommendation of the Commission will have to be considered by the Government, namely, the opposite party no. 1 in accordance with the relevant rules, of course, without any further delay in the vacant post reserved under the interim directions of this Court issued on 19.8.1991

In the result, this writ petition is partly allowed to the following extent only :

The U. P. Public Service Commission, opposite party No. 2 shall send a recommendation of a suitable candidate in order of merit belonging to the category of backward classes on the basis of the results of Combined State Services Examination 1987 to the State Government, opposite party No. 1 in response to its letter dated 15192 within a period of ten days from the date of the receipt of the certified copy of this judgment, and thereupon the State Government in the Agriculture Department, opposite party No. 1 shall consider the recommended candidate for appointment to the vacant post of U. P. Agriculture Service Class II Section ''B'', kept reserved under the interim direction dated 19891 in accordance with the relevant rules on fulfilment of other requirements to its satisfaction, and issue the appointment order to the recommended candidate within a period of two months from the date of the receipt of the recommendation of the candidate from the Public Service Commission.