This bunch of 20 writ petitions has been filed challenging the selections and appointments made on the post of Assistant Review Officer (hereinafter referred to as ARO) in the High Court of Judicature at Allahabad. The bunch has been nominated to this Court under order of the Hon'ble the Chief Justice.
For the purposes of overseeing the selections and appointment on the post of ARO the Hon'ble The Chief Justice of the Court constituted a Judges Committee. The process of selection was initiated by publication of an advertisement in newspaper on 29.07.2009. A copy of the advertisement has been enclosed as Annexure-SCA-6 to the supplementary counter affidavit filed on behalf of the High Court. The advertisement mentions that the selection process shall comprise of following phases: (a) preliminary written examination, (b) main written examination (preliminary being objective in nature and main being subjective in nature), (c) computer knowledge test and (d) interview.
The preliminary written examination and main written examination were scheduled to take place on one and the same date. The preliminary written examination was to comprise of 100 objective type questions to be answered on OMR Sheet, while main written examination was to comprise of 4 subjective questions. It was provided that only such candidates, who achieve the cut of marks fixed in the preliminary examination in order of merit shall be eligible for their subjective answer sheets to be evaluated and thereafter to undertake the computer knowledge test followed by interview to be held on the same date. Reference- Clause (a) and (b) of the advertisement. The syllabus for the examination was also notified and amongst other it was provided that computer knowledge would mean the knowledge of data entry, words processing and computer operations.
The merit list was to be prepared on the basis of the aggregate marks obtained in main examination, computer knowledge test and interview.
Before the written test could take place, the Five Hon'ble Judges Committee (hereinafter referred to as the "Committee") in its meeting held on 29th September, 2010 resolved that (a) in view of the Full Court Resolution dated 10.04.2004, the candidates who apply against reserved seats of OBC, SC and ST will be considered against the seats in that particular category to which they belong, (b) Merit list shall be prepared on the basis of marks obtained in written examination i.e. the subjective test and computer test only. Subjective test shall carry 80 marks and the computer test shall carry 20 marks, (c) Minimum marks to be procured by the candidates of all categories in Subjective Test and Computer Test would be 40% each. However, the minimum aggregate of the two tests should be 50% in respect of general category and OBC category candidates, whereas it should be 45% in respect of SC and ST category candidates, (e) After preliminary examinations, candidates 20 (twenty) times the number of vacancies will be declared qualified as per their category. In case if there are several candidates who score same minimum qualifying marks, then copies of all such candidates will be evaluated irrespective of the limitation of 20 times and (f) The number of candidates (who qualify the written examination) to be called for Computer Test will be 4 (four) times the number of vacancies.
The written examination both preliminary as well as main were conducted on one and the same date i.e. on 06.02.2011. The computer test took place on 5th, 6th and 7th July, 2011.
All the petitioners before this Court applied in terms of the advertisement so published. All the petitioners have qualified the preliminary written examination. Thereafter their written main examination sheets have been examined and in order of merit they have participated in computer knowledge test.
The Judges Committee was informed by the Examination Cell vide its report dated 18.07.2011 that the total number of vacancies stood reduced to 400 only, as follows: General-199, OBC-107, SC-83 and ST (including backlog vacancies 8+3)-11. The Committee was also informed that after the written examination as per the minimum norms fixed for qualifying as per the resolution dated 29th September, 2010 only following number of candidates could qualify; General-73, OBC-16, SC-23 and ST-00 (Total 112).
After considering the said aspect of the matter the Judges Committee resolved that the cut of minimum qualifying aggregate percentage marks be reduced by 10%. Accordingly, the minimum aggregate qualifying marks for General and OBC category candidates stood reduced to 45%, while that for SC/ST stood reduced to 40.5%.
A further relaxation of .5% was provided to SC/ST candidates by the Hon'ble The Chief Justice and therefore the minimum qualifying marks for SC/ST candidates reduced to 40% only. After such reduction of minimum aggregate qualifying marks, Committee was informed that number of candidates who would qualify the examination would be as follows; General-199, OBC-61, SC-43 and ST-00 (Total 303).
The Committee also noticed that in the General category the number of candidates, who would qualify the examination within the cut of percentage after reduction of the minimum aggregate, was 222, while in all other categories; namely OBC, SC and ST the number of candidates, who would qualify the examination was less than the number of vacancies available. It was, therefore, resolved that a wait list of 23 candidates of General category be prepared.
Under the said decision of the Judges Committee and with the approval of the Chief Justice the results of the selections was declared roll number-wise, without disclosing the category to which the selected candidates belonged, by the Registrar General on 25.07.2011. It contains roll number of 308 candidates. It is this select list which is under challenge in these petitions.
On behalf of the petitioners following submissions have been made:
(1) Under the advertisement for selections and appointment as ARO four phases were specified (a) preliminary written examination, (b) main written examination, (c) computer knowledge test and (d) interview. Such procedure, as declared and notified to the candidates under the advertisement i. e. at the time of initiation of the process of selection, could not have been altered in the mids of the selection by the Committee under its resolution dated 29.09.2010 by confining the selections on the aggregate marks obtained in the main written examination and the computer knowledge test. The stage of interview had wrongly been done away. According to the petitioners such change in the norms, regulating the procedure for selection, after the process of selection has been initiated is illegal and unsustainable in view of the law laid down by the Apex Court in the case of Madan Mohan Sharma v. State of Rajasthan, reported in 2008 AIR SCW page 1850 (Para 4).
(2) The evaluation of the computer test sheets has been done in a most arbitrary manner for following reasons:
(a) D.K. Dwivedi was only the System Manager and therefore an employee of the High Court. The Committee, while asking the Examination Cell to hold the computer knowledge test, could not have delegated its authority to lay down the norms of evaluation upon D.K. Dwivedi. This amount to sub-delegation of authority by the delegated authority, namely the Judges Committee, who were in fact exercising the delegated powers of the Hon'ble The Chief Justice, (b) The decision taken by System Manager on his own to provide (i) that typing of 361-400 words would earn 100% marks so on and that only 2 marks shall be deducted at the maximum irrespective of the number of mistakes committed in typing, (ii) the words not typed being treated to be of no relevance and (iii) awarding of additional marks in the matter of formating etc. are all without any reasonable basis.
It is the case of the petitioners that the candidates were provided the text of different judgments for being reproduced during computer knowledge test. The candidates were specifically informed that 500 words were to be typed on the computer in 10 minutes. Every candidate was expected to type 500 words in 10 minutes and if mistakes are committed or words are left out, then such candidates had to be penalized for the same. It is submitted that at no point of time during examination the candidates were informed that if they type 361 to 400 words then for not typing the rest more than 100 words no marks shall be deducted or irrespective of the number of mistakes committed the maximum number of marks to be deducted for mistakes would be 2 only.
The arbitrariness of the method is explained by following examples:
(i) A candidate who may have committed 350 spelling mistakes while typing only 400 words would still receive 18 out of 20 words, as only 2 marks could be deducted for mistakes, while a candidate who may have typed 300 words with permissible mistakes of 1 word for every 50 words would receive at the maximum 16 marks. (ii) Similarly, two candidates typing equal number of words, for example 325 words with different number of mistakes say 200 and 20 would be treated as equal for awarding the marks. (iii) Lastly even if all the words typed by the candidates are spelling mistakes still he will be awarded marks on simple counting of the words after deducting 2 marks at the maximum.
Such procedure on the face of it is arbitrary and amounts to treating unequal as equal. Words not typed are always taken to be mistakes both in the type test and computer knowledge test conducted by the Public Services Commission and other examining bodies.
The petitioners submit that the decision taken by the System Manager to provide that a candidate who had typed 361-400 words, would be treated to have achieved maximum efficiency and therefore to be awarded 20 out of 20 marks is an imagination of the System Manager himself. If such was the decision, there was no need for asking the candidates to type 500 words in 10 minutes. If such criteria namely that typing of 361-400 words would earn the maximum marks and, irrespective of the number of mistakes committed, only 2 marks would be deducted at the best, the minimum required was that such information should have been disclosed to all the candidates before the examination. Such arbitrary norms cannot be laid down after the examinations are over and answer sheets are evaluated.
It is then contended that in the matter of preparation of the select panel the High Court has acted illegally while deciding that OBC and SC/ST category candidates, irrespective of their merit secured in the selections, would be confined to their category only. The decision is arbitrary and violative of Article 14 and 16(1) of the Constitution of India.
It is explained that the recommendation of the Three Members Committee dated 04.03.2004, as approved by the Full Court of the High Court in its meeting held on 10.04.2004, cannot hold the field in view of the law declared by the Supreme Court of India in the case of Jitendra Kumar Singh and another vs. State of U.P. and others; (2010) 3 SCC 119 and in the case of Madan Mohan Sharma (supra). He submits that the resolution of the Full Court, being violative of Article 14 and 16 of the Constitution of India and even otherwise bad in law could not have been followed while preparing the select list. This has made the entire select panel bad. It is their case that the members belong to the reserved category have to be assigned their respective place in accordance with their merit against the General category posts and they cannot be confined to their own category only. It is stated that the legal proposition in that regard has been settled by the Apex Court in the case of Public Service Commission Uttaranchal vs. Mamta Bisht and others (2010) 12 SCC 204.
Sri D. P. Singh, Senior Advocate appearing on behalf of the petitioners in Writ Petition No. 61923 of 2011 (Prasoon Tomar and others vs. High Court of Judicature at Allahabad and others) contended that the petitioners belong to the OBC category, they should have been provided relaxation in the matter of minimum aggregate qualifying marks fixed for selection by 10% for two reasons; (a) The Supreme Court of India in the case of P. V. Indiresan (2) vs. Union of India and others; (2011) 8 SCC 441 has provided that there can be relaxation upto 10% in favour of OBC category candidates vis-a-vis General category candidates and (b) The Chief Justice had provided 0.5% additional relaxation in favour of SC/ST, similar should have been the treatment in respect of OBC category candidates also. If this had been done, the petitioners of this petition and large number of others would have qualified. Lastly a plea of sports quota being not provided has also been pressed.
In reply to that has been submitted by the counsel for the petitioners, counsel for the High Court Sri Ranjan Srivastava and Sri Shashi Nandan, Senior Advocate, counsel for the selected candidates have raised following objections: no issue pertaining to the method of evaluation of answer sheets of computer/type test is there in the pleading of these petitions and therefore this Court may not travel beyond the pleadings. The petitioners have taken their chance in the process of selection, they cannot be now permitted to either challenge the norms fixed for evaluation of type sheets. The Chief Justice of the High Court has absolute power under Rule 41 read with Rule 45 of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (hereinafter referred to as 'Rules, 1976'') to lay down such norms for selections as he deems fit and proper. Since the petitioners have failed to achieve the minimum fixed for being selected, they have no locus to challenge the selection.
So far as the power of the System Manager of the Computer Centre to lay down the norms for evaluation of answer sheets is concerned, it is submitted that since the Judges Committee and thereafter The Chief Justice approved the select list prepared, it is to be presumed that the norms fixed for such selections have also been approved by the Judges Committee and ultimately by The Chief Justice. Therefore, the plea of sub delegation of authority by the Judges Committee to the System Manager, Computer Centre has no merit. With regard to the fairness of fixation of maximum two marks to be deducted irrespective of the number of mistakes committed as well as the words not typed being ignored, it is submitted that since there was no negative marking and since the principle has been applied uniformly, there is no violation of Article 14 and 16 of the Constitution of India in the matter of evaluation of type sheets. It is their case that moderation was done so that larger number of candidates could qualify.
On the issue of confining of the OBC and SC/ST candidates within their respective categories irrespective of the merit secured in the selections, it is pointed out that such decision has been taken by the Judges Committee knowingly, with reference to the resolution of the Full Court dated 10.04.2004, which according to them could be deemed to be an order of The Chief Justice with reference to his powers under Rule 45. For the proposition reliance has been placed upon the judgments reported in (2000) 4 SCC 640; State of Bihar & Anr v. Bal Mukund Sah & Ors. and AIR 1997 SC 1431; State of U. P. v. C. L. Agarwal as well as in the case of Udai Bhan Mishra vs. State of U.P. and others.
With regard to the alteration in the method of selection, as was notified in the advertisement viz-a-viz which has been followed i. e. of not holding any interview, it is submitted that there was a bona fide mistake in the advertisement and such mistake has been rectified by the Judges Committee by deleting the stage of interview. It is submitted that interview is not a part of the selection process, as provided for under Rule 12 of Rules, 1976. Even otherwise it is submitted that the interview has been done away for all the shortlisted candidates, who had qualified the written examination, and they were so informed before the computer knowledge test. The petitioners did not suffer in any manner because of the said change.
So far as the plea of not providing any Sports quota is concerned, counsel for the High Court points out that since the candidates within Sports quota could not achieve the minimum prescribed, they have not been selected. According to respondents the petitions lack merit and be dismissed.
The procedure for selection and appointment on the post of ARO is regulated by Rules, 1976. Rule 8 provides for the sources of recruitment, while Rule 12 lays down the method for direct recruitment on the post of Review Officer and Assistant Review Officer. Rule 12(1) provides for ascertainment of number of vacancies including those reserved. Rule 12(2) provides for invitation of applications for admission to the competitive examination. Rule 12(3) provides for the syllabus for the competitive examination, which may be prescribed from time to time by the appointing authority. Rule 12(4), which is relevant for our purposes, lays down that the merit list shall be prepared on the basis of the marks obtained in the written examination including shorthand, typing and performance in computer operation, if any. The select list shall hold good for one year or until the next selection whichever is earlier. Rule 23 provides for reservation for Scheduled Castes and Scheduled Tribes and from amongst disabled military personnel etc. in accordance with the orders to be issued by the Chief Justice from time to time. Rule 41 confers a residuary power upon the Chief Justice to make such orders, from time to time, as he may deem fit in regard to all matters incidental or ancillary both for which provisions have been made as well as for those which have not been sufficiently provided for. Rule 45 confers a further power upon the Chief Justice to make such orders, as he may deem fit, in respect of recruitment, promotion, confirmation or any other matter. The Rule 45 starts with non-obstante clause.
Facts as are borne out from the records of this petition, affidavits filed and the documents, which have been handed over to this Court by the counsel for the High Court pertaining to the ARO Examination-2009, are as follows:
A Three Members Committee of Hon'ble Judges in its meeting held on 20.05.2009 directed the Registry of the High Court to calculate the vacancies of ARO available till 30th June, 2009 and to place the same before the Committee in its next meeting so that the same may be advertised without any further delay. This decision of the Committee was approved by The Chief Justice on 26.05.2009. A report was submitted by the Joint Registrar (E) to the Registrar General disclosing the number of vacancies available as well as the draft advertisement for being placed before the Three Members Committee. The total number of vacancies disclosed was 468.
An advertisement inviting applications for appointment on the post of ARO was published on 30.09.2009 with total number of 468 vacancies. 232 for the General category, 126 for OBC category, 98 for SC category and 12 for ST category. The selection procedure, as disclosed in the advertisement, was to comprise of following phases:
(a) Preliminary Written Examination;
(b) Main Written Examination;
(c) Computer Knowledge Test; and
(d) Interview Preliminary written examination was to be objective, while main written examination was to be subjective. It was provided that only such candidates, who qualify objective test in order of merit, shall be entitled for their subjective test answer sheets being examined. It was further contemplated that only such candidates, who qualify the subjective test in order of merit, will be permitted to undertake the computer knowledge test followed by interview on the same date.
The marks obtained in the subjective test, computer knowledge test and interview in aggregate were to be taken into consideration for determination of the merit. (Copy of the advertisement is Annexure-SCA-6 to the affidavit of Deputy Registrar (Examination Cell) dated 16.05.2012).
A new committee of Five Hon'ble Judges (hereinafter referred to as 'Judges Committee') was constituted for overseeing the ARO Examination, vacancies whereof had already been advertised. This Judges Committee on 29th September, 2010 took following decisions amongst other in respect of the ARO Examinations:
"(a) in view of the Full Court Resolution dated 10.04.2004, the candidates who have applied against Reserved Quota will be considered in that particular category to which they belong.
(b) Merit list shall be prepared on the basis of marks obtained in written examination in the subjective test as well as computer test, Subjective test shall carry 80 marks and the computer test shall carry 20 marks.
(c) Minimum marks to be procured by the candidates of all categories in Subjective Test and Computer Test would be 40% each. However, minimum of the two tests should aggregate 50% in respect of general category and OBC category candidates, whereas it should be 45% in respect of SC and ST category candidates.
(d) In preliminary Examination, 20 (twenty) times candidates against the number of vacancy will be declared qualified as per their category, i. e. number of S.C./S.T./O.B.C. Candidates declared qualified in preliminary examination will be equivalent to 20 times of the vacancy reserved for them. In case if there are several candidates who score minimum qualifying marks then copies of all such candidates will be evaluated irrespective of the limitation of 20 times.
(e) The number of candidates (who have qualified the written examination) who will be called for Computer Test will be 4 (four) times of the vacancy."
In terms of the decision of the Judges Committee, preliminary as well as main written examinations took place on 06th February, 2011. Result was declared and 980 candidates were shown to have achieved the cut of merit. A copy of the list of empanelled candidates has been enclosed as Annexure-SCA-9 to the supplementary counter affidavit of Deputy Registrar).
It may be noticed that the result was not declared category-wise with reference to reservation applicable.
Computer knowledge test of the qualified 980 candidates took place on 5th, 6th, and 7th July, 2011.
A meeting of the Judges Committee took place on 21st July, 2011. In the said meeting the number of vacancies available was disclosed as 400. 199 for General category candidates, 107 for OBC category candidates, 83 for SC category candidates and 3+(8 backlog vacancy), total 11 for ST candidates. The Judges Committee on the said date also took a policy decision to reduce the minimum aggregate of the two test for a candidate to be selected for the post of ARO by 10%. It is relevant to reproduce the relevant resolutions, which reads as follows:
"The Committee in it's Resolution dated 29.09.2010 fixed 40% as the minimum marks to be procured by the Candidates of all Categories in Subjective Test & Computer Test but minimum aggregate of the two tests should be 50% in respect of General & O.B.C. Category Candidates and 45% in respect of S.C. & S.T. Category Candidates. As per these norms following number of Candidates have qualified as per the Report dated 19.07.2011 submitted by the System Manager, Computer Center-
Sl.No.
Category No. of Posts
01. General 73
02. Other Backward Class 16
03. Scheduled Caste 23 04 Scheduled Tribe 0 TOTAL 112 Considering that the instant Examination for the post of Assistant Review Officer has been held after a period of three years, the Committee resolves that the norms be relaxed and qualifying marks in aggregate be reduced by 10%. As such, ,the minimum qualifying marks in aggregate for General & O.B.C. Category will be 45% and 50.5% for the S.C. & S.T. Category. After relaxing the norms, the Category-wise break-up of Candidates who have qualified in respective categories depending on vacant posts as per the Report submitted by the System Manager, Computer Center is as follows:
Sl.No.
Category No. of Posts
01. General 199
02. Other Backward Class 61
03. Scheduled Caste 43 04 Scheduled Tribe 0 TOTAL 303 The Office has reported that several qualified Candidates do not join the Post and as such a Waiting List is required to be drawn so that vacant posts may be filled.
In this regard, Committee has perused the Waiting List of 10% qualified Candidate, prepared by the System Manager, Computer Center in those Categories where the number of qualified Candidates is more than the vacancies and where there are many candidates who have secured equal marks to the last Candidate of the Waiting List then the limit of 10% has been relaxed and the name of all those Candidates securing equal marks have been placed in the Waiting List."
It was resolved that the result will be declared only after obtaining the approval of The Chief Justice. The Chief Justice further relaxed the requirement of minimum aggregate of 40.5% marks in respect of SC/ST candidates to 40% under his order dated 25.07.2011. In terms of the said decision the list of successful candidates was notified on 25.07.2011.
It will not be out of place to record hear that the responsibility to hold the examinations pertaining to ARO selection was with the Examination Cell of the High Court, which is headed by a Deputy Registrar. For the first time the System Manager of the Computer Center is stated to have submitted a report before the Judges Committee pertaining to the number of candidates who could actually achieve the minimum norms fixed for being selected for the post of ARO. It is on the basis of the report of the System Manager dated 19.07.2011, which disclosed that only 112 candidates could qualify on the norms fixed, a decision was taken to reduced the minimum aggregate as fixed under the earlier resolution of the Judges Committee.
This Court while hearing the petition was informed that the evaluation of the answer-sheets in respect of computer knowledge test has been done in an arbitrary manner, in support of the plea roll numbers of few such candidates was also furnished to the Court. The Court, therefore, under order dated 18.05.2012 required that the answer-sheets of the candidates bearing Roll Nos. 39710, 12796, 30162 and 14129 be produced for its consideration.
On examination of these four computer knowledge type sheets, this Court found that there was no uniform system of evaluation of type-sheets.
It may be recorded that all the shortlisted candidates, who participated in the computer test, were provided different judgments of the High Court and were required to type 500 words on computer within 10 minutes. The maximum marks provided for computer knowledge test was 20.
This Court found that the candidate bearing Roll No. 39710 had typed only 215 words, he had been awarded 11 marks out of 20 with an endorsement that there were three errors. The candidate bearing Roll No. 12796 had typed only 145 words, 18 errors were noticed and he had been awarded 7 out of 20 marks. The candidate bearing Roll No. 30162 had typed only 418 words, the endorsement made is that there were two errors, he has been awarded 20 out of 20 marks. Candidate bearing Roll No. 14129 had typed only 361 words, there is an endorsement to the effect that there were 16 errors and the candidate had been awarded 17 out of 20 marks.
By means of a reasoned order dated 17.05.2012 the Court required the High Court to inform as to what procedure/norms have been followed in the matter of evaluation of computer knowledge answer sheets.
In response to the order of the Court dated 17.05.2012, D.K. Dwivedi, System Manager, Computer Center handed over three sheets to the Court for the purposes of explaining the method of evaluation of the computer test answer-sheets. These three sheets have been taken on record.
In the 1st sheet supplied by the System Manager to the Court, said to be general instructions for evaluation of the answer sheets of the computer knowledge test, it has been informed as follows:
"ARO Examination 2009 General instructions for evaluation of the copies of the Computer Operation Test
1. Different passages of about 500 words were given to the candidates of each batch for typing, formatting in the same pattern as has been provided in the Sheet in given time of 10 Minutes.
2. Total Marks allocated for the Computer Operation Test is 20 marks.
3. Marks are to be awarded based on total no. of words typed by the Candidate, formatting of the text and errors committed.
4. Errors are to be marked and one error in each 50 words may be ignored. If errors are more, then marks are to be deducted. However, such deduction should not be more than 10% of the total marks i. e. 2 marks.
5. On the other hand, if typed sheet of the candidate is error free, properly formatted in terms of font style, font size as is used in the original sheet provided to the candidates, bonus of one mark may be given in case of exceptionally good sheets.
6. Since 40% cut-off marks have been fixed to qualify in the Computer Operation Test so copies shall be checked in two steps i. e. at first step, initial checking for typing mistakes, spelling errors, formatting deviations etc. shall be done and at the second step, marks shall be awarded after adopting appropriate scaling in case it is required so that sufficient number of candidates qualify in the Computer Operation Test."
The 2nd sheet handed over to the Court again titled General Instructions for evaluation of the copy of the Computer Operation Test, reads as follows:
" ARO Examination 2009 General instructions for evaluation of the copies of the Computer Operation Test S.N.
No. of total words printed in the Sheet (including header and footer information) Marks to be awarded
1. 361-400 onwards 19-20
2. 321-360 17-18
3. 281-320 15-16
4. 241-280 13-14
5. 201-240 11-12
6. 161-200 9-10
7. 121-160 7-8
8. 81-120 5-6
9. 0-80 1-4 D.K. Dwivedi"
The 3rd Sheet is the report to the Deputy Registrar Examination pertaining to the same Examination bearing the date as 11th May, 2012 and the System Manager has stated as follows:
"Dy. Registrar (Exam) Kindly refer to the note dated 10.05.2012 of O.S.D. (Litigation) forwarded by you to Computer Centre, note dated 11.05.2012 of Section Officer (Examination Cell) approved by Registrar General dated 11.05.2012, and marking of the Registrar General Dated 10.05.2012 and J.R. (Establishment) with regard to producing Answer Sheet of the Candidate who had been awarded 20 marks out of 20 in Computer typing.
Different passages of about 500 words were given to the candidates of each batch for typing, formatting in the same pattern as has been provided in the Sheet in given time of 10 Minutes. Total Marks allocated for the Computer Operation Test was 20 marks. Marks were awarded based on total no. of words typed by the Candidate, formatting of the text and errors committed."
After examining the three sheets handed over by Sri D.K. Dwivedi, the Court under order dated 18.05.2012 framed issues with regard to the competence of D.K. Dwivedi to lay down the norms for evaluation of answer-sheets, including his decision to deduct maximum 2 marks for whatever be the number of mistakes and for not deducting any marks in respect of the words not typed. The reason for confining the reserved category candidates to their stream only was also asked to be informed. The Judges Committee was requested to revisit the entire matter and the report of the Judges Committee was asked to be placed before the Court on 23rd July, 2012.
With reference to the order so passed, the Judges Committee was kind enough to meet again on 23.07.2012. The resolutions passed in the said meeting of the Judges Committee have been handed over to the Court. The relevant part of the resolutions are as follows:
"1. The Assistant Review Officer Examination-2009 was to be conducted in three parts- Preliminary Examination (Objective Type), Mains Examination (Subjective Type) and Computer Proficiency Test. Preliminary Examination and Mains Examination were held together.
The setting of Question Papers for Preliminary Examination and Mains Examination was entrusted to two Members of the Committee. The method of evaluation of Answer Booklets of the Preliminary Examination was also entrusted to this Committee.
The Committee in its Meeting held on 29th September, 2010 had resolved that in Preliminary Examination, Twenty times candidates against the number of vacancy will be declared qualified as per their Category and their Answer Booklets of Mains Examination would be examined.
The method of evaluating the Answer Booklets of the Mains Examination was left at the discretion of the Examiners of the Uttar Pradesh Public Service Commission.
The Committee in its Meeting held on 29th September, 2010 had also resolved that the number of candidates who have qualified the Written Examination to be called for Computer Test will be Four times of the vacancy.
The responsibility of holding the Computer Proficiency Test was left to Computer Center. Examination was held by Computer Center, and the result prepared by the Computer Center was approved by Committee.
The Committee in its Meeting held on 29th September, 2010 had resolved that minimum marks to be procured by the candidates of all categories in Subjective Test and Computer Test would be 40% each. However, minimum of the two tests should aggregate 50% in respect of General Category & O.B.C. Category candidates, whereas it should be 45% in respect of S.C. & S.T. Category candidates, but in the Meeting held on 21st July, 2011, the Committee after noticing that the Examination had been held after a period of three years, and sufficient number of candidates are not qualifying as previously decided norms. Accordingly, the Computer Centre was directed to prepare summary charts of candidates who would qualify in each category based on different norms. After perusal of these charts, the Committee resolved that the norms be relaxed and qualifying marks in aggregate be reduced by 10%. Thus, the minimum qualifying marks in aggregate for General & O.B.C. Category was 45% and 40.5% for the S.C. & S.T. Category. Subsequently, as the less number of candidates had qualified, Hon'ble The Chief Justice further reduced the Merit by 0.5% for S.C. & S.T. Category Candidate taking it to 40%.
The Committee also requested the Computer Centre to find out the number of candidates who would qualify in case marking is done on 500 Words. It has been pointed out by the Computer Centre that in that event sufficient number of candidates would not have qualified.
The Computer Centre has also pointed out that no candidate from amongst the unsuccessful candidates (as per the result prepared on the basis of marking on maximum 400 words typing limit) will be selected if the marking is done on maximum 500 words.
2.........."
After the resolution the Judges Committee was considered by this Court and the counsels were heard, this Court found that certain issues still remained unanswered. Therefore, vide order dated 27.07.2012 five issues were required to be answered by the Registrar General by way of an affidavit, after obtaining such instructions as may be necessary. Similar opportunity was also afforded to the selected candidates. The order dated 27.07.2012 reads as follows:
"Report of the Judges Committee has been placed today before the Court. Following four issues still need to be answered:
(a) Could the Judges Committee, which was exercising delegated power of the Hon'ble the Chief Justice while holding the selections for the post of Assistant Review Officer (ARO), further delegate their power in the matter of holding computer efficiency test to the Computer Centre of the High Court, including the authority to lay down the norms for evaluation of the answer-sheets and for altering the same as and when required.
(b) For the computer proficiency test the candidates were supplied copies of judgments of this Court which were approximately 500 words each. The candidates were directed to reproduce/copy the judgment both in the formate as well as in the words within the prescribed ten minutes. It has been decided by the Computer Center that for evaluation of the computer sheets, a candidate, who types only 400 words out of 500 words will be provided 20 marks out of 20 marks i. e. full marks, although the candidate may not have typed 100 words. What happens to these 100 words is not disclosed. It is common knowledge that in respect of type test and shorthand test words not typed are taken as mistake.
(c) Irrespective of the number of mistakes committed, the maximum marks which could be deducted has been fixed as 2. For example even if a candidate commits 200 mistakes in reproduction of the text, he will loose only 2 marks and another candidate who commits 20 mistakes would also loose 2 marks.
(d) The Selection Committee has decided to place the candidates belonging to reserved category, namely OBC, SC/ST within their respective quota irrespective of the marks obtained by them in the selection. For example, if a candidate belongs to OBC has secured higher marks than the candidate selected in the general category, he has not been shifted to the general category and has been placed within the OBC category only.
According to the petitioners such application of the reservation violates Article 14 and 16 of the Constitution of India, inasmuch as open category posts are not reserved for any category and therefore the open category posts are to be filled on merit irrespective of the category to which the candidate belongs, he may be General, OBC or SC/ST.
Let Registrar General of this Court, after obtaining such information as may be desired, file an affidavit on all the aforesaid issues.
The selected candidates are also at liberty to file reply in response to the aforesaid query.
Respondents shall also produce the chart which was prepared with reference to 500 words, as referred to in the report of the Judges Committee on the next date.
Put up on 13th August, 2012."
An affidavit has been filed by the Registrar of the High Court in response to the queries made under order dated 13th August, 2012. The relevant portion of paragraphs 4, 5, 6 and 7 of the affidavit are read as follows:
"4. .............The computer proficiency test was conducted as the responsibility of holding the same was left to the Computer Centre which was approved by the Hon'ble Committee vide its minutes dated 23.7.2012. A photo copy of the minutes is marked and attached to this affidavit as Annexure No.-1.
5. That in regard to issue no. (b) supra it is stated that in computer proficiency test, the candidates of each batch were given passages from different texts of approx. 500 words, (depending on where a complete sentence came to as end) which varied from batch to batch for typing and formatting in 10 minutes. Even if 500 words limit is considered for evaluation, it is a normalisation of range to 500 words. No negative marking was done in any of the tests i. e. preliminary, main written test as well as the computer proficiency test, hence the left out passages in the text in computer proficiency test, must not be assumed to be mistakes. Marks awarded in each of the tests were based on the attempted questions or passages from the text attempted for typing by the candidates.
6. That, generally in competitive examinations like Common Admission Test (CAT) held by the IIMs for admission in MBA Course, Graduate Aptitude Test in Engineering (GATE) held by IITs for admission in M.Tech. And Ph.D. Courses in India as well as the examinations held by several institutions in foreign countries the marks awarded to the candidates appearing in GMAT, GRE, TOEFL etc., are based on the performance of a candidate over the other candidates. Candidates with highest score of 99.90% (percentile) in some of the above tests conducted by reputed professional institutions will not mean that the candidate has attempted all questions and committed a mistake of 0.1% only. Upper range of 400 words was fixed for evaluation purpose as an average candidate was expected to type only so many words with proper format in ten minutes. Maximum candidates performed in the range of 150 to 300 words. Norms adopted for the evaluation of the answer sheets of the computer proficiency test were applied uniformly on all candidates and scaled scores were based on the overall performance of the candidates in computer proficiency test over the other candidates treating the highest performing candidate (typing more than 400 words) as the best candidate who has been treated to have achieved landmark score of 100% marks and awarded 20 out of 20 marks.
7. ............................. In those cases where the candidates did not commit any mistake and the typed & formatted text of passage were in the same pattern as printed in the sheet provided to the candidates, option of awarding one bonus mark was also considered with a view to distinguish such candidates from the others.
From the aforesaid it is apparently clear that the System Manager, who claims to have been assigned responsibility for holding the computer test, as well as the High Court admit that at the first instance initial checking of the mistakes, total words typed, formating etc was done and at the second stage marks were awarded after adopting the method of scaling for the purposes of ensuring that sufficient number of candidates qualify the computer operation test.
It is with reference to the said purpose that norms were laid down providing for the candidates typing between 361 to 400 words to be awarded 20 out of 20 marks and so on. A candidate with innumerable mistake, and passages left out would entail a deduction of 2 marks at the maximum. It is their case that since no negative marking was done in any of the test i. e. preliminary written examination or main written examination or in computer proficiency, left out words/passage in the computer test were not taken as mistake. Marks were awarded for the words actually typed. The maximum number of words typed by the best candidate was taken as the benchmark, which was more than 400 words and therefore it was decided that a candidate who types 361-400 words is to be treated to have achieved the landmark score of 100%. On the words typed being less than 360 onwards the marks to be awarded were reduced gradually. For the purposes of objectivity and rationality, general guidelines and a chart of range of words typed and marks to be awarded for that range of typed words was prepared for reference and was followed by the examiners. (Ref.- Sheets provided by System Manager to this Court). This has been described as scaling by the System Manager in his report to the Assistant Registrar.
Before this Court counsel for the High Court specifically contended that as a matter of fact the principle of moderation had been applied in order to get suitable number of candidates selected within the parameter of minimum aggregate fixed by the Committee. According to him the use of the word 'scaling' in the three sheets handed over by the System Manager is not proper.
Before adverting to the fairness or otherwise of the evaluation norms adopted by the System Manager on his own, said to be ratified by Judges Committee with the approval of results, it would be appropriate for this Court to explain the system of moderation and scaling as applicable in the matter of evaluation of answer sheets.
The Apex Court in the case of Sanjay Singh and Anr. vs. U.P. Public Service Commission, Allahabad and Anr.; (2007) 3 SCC 20 has analysed as to what scaling means and as to what moderation means. The Apex Court, after referring to various text books on the subject pertaining to the system of examinations, in paragraph 19 to 23 of the judgment has explained that when the answer-sheets in respect of the same examination are evaluated by different examiners, some of whom may be strict and some of whom may be lenient, different standards for evaluation result, known as 'examiner variability' or 'Hawk-Dove effect'. It is to do away with such disparity in evaluation that there is a need to evolve a procedure to ensure uniformity inter se the Examiners so that the effect of 'examiner subjectivity' or 'examiner variability' is minimised. This method is known as moderation.
The same judgment explains the system of scaling in paragraph 25. It has been clarified that scaling is the process which brings the marks awarded by Examiner 'A' in respect of a particular subject and the marks awarded by Examiner 'B' in respect of another subject to a common scale. Scaling is a method by which the result of different scales adopted for different subjects by different examiners is reduced to a common scale so as to permit comparison of inter se merit. By this exercise, the raw marks awarded by the examiner in different subjects is converted to a score on a common scale by applying a statistical formula and is called scaling.
In my opinion neither the principle of moderation nor scaling can be applied in the facts of the case. What was to be evaluated by the examiners of the computer test answer sheets was the number of words actually typed by a particular candidate correctly or otherwise as against the total number of words required to be typed within 10 minutes. As per the norms the marks were to be allotted for the words typed, formatting of the text and errors committed. There was no subjectivity involved so far as the evaluation of the computer test sheets is concerned.
This Court may record that where there was no subjective evaluation in the matter of evaluation of type answer sheets, like in the case of objective tests held on OMR sheets, it is wholly irrelevant as to which examiner evaluates the answer sheet. Similarly it is wholly irrelevant as to which particular subject a particular candidate opts for. For example in the case of selections held by the U.P. Secondary Education Services Selection Board in the matter of candidates to be selected for the post of Social Science Teachers, where the candidates have the choice to appear in optional papers to be held on OMR Sheets.
As no subjectivity is involved, there can be no Hawk-Dove effect or examiner variability nor there is any occasion for a different degree of strictness or lenience in evaluation. In respect of such examinations the procedure of scaling or moderation cannot be adopted.
This Court also fails to understand as to how did the High Court determined that an average candidate was expected to type only 400 words in 10 minutes. What is the basis for such a statement in the affidavit of the Registrar General is not known.
The entire premises of the Computer Center, said to have been approved by the Judges Committee, for evaluating the answer sheets of computer test in the manner it has been done is patently arbitrary and unjust.
What in fact has been done is that the System Manager has made an attempt to reduced the qualifying marks fixed by the Judges Committee by resorting to a procedure of evaluation whereby the candidates, who could not achieve the cut of marks because of the mistakes committed/words not typed, have been falsely shown to have achieved the minimum marks fixed for qualifying by confining the marks to be deducted for any number of mistakes to the maximum of 2% by treating the words not typed as irrelevant, and most irrationally that a candidate typing between 361-400 words would achieve 100% marks.
This Court has no hesitation to record that what cannot be done directly cannot be permitted to be done indirectly by the System Manager. If the Committee decided to stick to the norms of 40% as the qualifying marks in computer test and further a minimum 45% of aggregate marks in respect of the General and OBC category candidates and 40% for SC/ST candidates before treating them to be qualified for the post of ARO, it could not have approved any method deviced by the System Manager to make the system of evaluation a hoax so as to create a situation where a candidate on being judged on merit strictly would not have secured 40% marks in computer test or aggregate marks of 45% or 40% respectively within their category has yet been selected by adopting the irrational method of evaluation of the computer sheets. The purpose being that sufficient number of candidates achieve the minimum fixed so as to qualify.
In my opinion the High Court cannot dilute the merit in order to confer benefit of appointment on larger number of persons only because it is not able to select suitable persons within the minimum aggregate fixed for selection under its own resolution. Any exercise undertaken for the purpose would be per se arbitrary and violative of Article 14 of the Constitution of India.
From the affidavit filed on behalf of the High Court as well as from the report submitted by the System Manager it is apparent that the decision to fix 361-400 words as the optimum for the purposes of determination that the candidate has achieved 99.9 percentile and therefore entitled to 20 out of 20 marks i.e. full marks for the computer type test had been arrived after the answer sheets of all the candidates were evaluated and the maximum number of words typed by any of the candidate, who had appeared in the computer test, was found out. It was also then decided to fix the maximum marks to be deducted for mistakes at 2% irrespective of the number of mistakes and treating the left out words as of no consequence.
What logically follows is that the criteria for awarding 20 out of 20 marks to a candidate, who had typed 361 to 400 words out of the allocated 500 words and gradual reduction of marks, was arrived at by the System Manager himself after the answer sheets of all the candidates had been examined. It is obvious that the System Manager did not take any permission from the Judges Committee for such fixation of optimum words i.e. 361-400 words for awarding 20 out of 20 marks and gradual decrease thereafter and for other norms. Even if it is presumed that such consent flows from the approval of the final result by the Judges Committee and then the Chief Justice, then I have no hesitation to record that the decision of the Committee has also gone wrong. Like the case in hand.
The procedure so adopted by the System Manager necessarily means that the rules for evaluating the answer sheets have been fixed after the answer sheets of all the candidates were examined and maximum number of words typed was ascertained. Such cannot be the procedure for laying down the norms for evaluation of the answer sheets where minimum cut of marks are fixed for being successful. The norms have to be laid down before the test is actually held and not after evaluation of the answer sheets of the test in cases like one in hand.
The System Manager and for that purpose the Judges Committee have gone wrong by confining the maximum marks to be deducted for any number of mistakes at 2% and by ignoring the words not typed and not treating as mistakes, on the plea that there was no negative marking. The concept of negative marking will not apply in a written test held, where minimum cut of marks are prescribed for being successful in the test. Where minimum cut of marks are fixed, the mistakes committed and the words left out must result in gradual increase in deduction of marks. For the purpose the following example will suffice:
In objective test where multiple choice questions are given and there is no negative marking can it be said that a candidate who does not answer all the questions can still be awarded 100 out of 100 marks on the plea that there is no negative marking. The answer is obviously no. The questions not answered by a candidate have to be treated as mistakes and such a candidate cannot be awarded full marks only because in the entire examination the best candidate could answer only a certain percentage of of the questions e.g. 80% of the questions.
This Court may further explain that the principle of negative marking includes within its ambit deduction of marks for wrong answer given from the total marks, which a candidate has been awarded in respect of correct answers. Such principle could not be applied to the type test held nor could be extended for ignoring the words not typed. It is beyond comprehension of any reasonable man to accept that a candidate, who does not type more than 100 words out of 500 words allocated within time allotted, can still be awarded 20 out of 20 marks thereby making the fixation of minimum marks for being eligible for selection inconsequential.
This Court is surprised with the stand taken by the System Manager, whereby the maximum marks which could be deducted for mistakes committed has been limited to 10% of the total marks only i. e. 2. On what principle such a norm can be fixed. In my opinion such norm of evaluation of answer sheet of computer type test is per se discriminatory, as would be highlighted by following: a candidate committing 200 spelling mistakes in typed words would suffer deduction of 2 marks only. Similarly, a candidate committing only 50 spelling mistakes would also suffer deduction of 2 marks only, likewise a candidate committing only 20 spelling mistakes would suffer the same deduction of 2 marks.
The net result is that the candidates with larger number of mistakes have been treated at par with candidates with much lesser number of mistakes in the type sheets by restricting the maximum marks to be deducted at 2% and by ignoring the left out words. This results in treating unequals as equal and therefore violative of Article 14 of the Constitution of India. Ref. Uttar Pradesh Power Corporation Limited v. Ayodhya Prasad Mishra and another; (2008) 10 SCC 139 (para 40).
In my opinion with the increase in the number of mistakes there should be gradual increase in the number of marks to be deducted. What should be the scale for such deduction of marks must be laid down by the Judges Committee and the System Manager cannot be authorized to take a decision on his own in that respect.
The system of scaling and moderation are serious complex issues. Even the system of scaling adopted by the Public Service Commission has been found to be faulty by the Apex Court in the case of Sanjay Singh (supra). System Manager, who has no expertise in holding public examinations, could not on his own adopt an arbitrary procedure and defend it in the name of scaling or moderation.
This Court may also highlight that under resolution of the Judges Committee, Computer Center was authorized to hold the computer test examination but from the records it appears that the System Manager became the authority in himself for laying down the norms for evaluation of the answer sheets. Even such norms have been tinkered with after the answer sheets of the candidates have been evaluated as per the choice of the System Manager as demonstrated above. Such power did not vest in the System Manager, nor he could have been delegated such power by the Judges Committee nor in the facts of the case such delegation has been made, as is apparent from the resolution passed by the Judges Committee in its meeting dated 23.07.2012.
There is another disturbing feature on the records of the present writ petition. The Computer Center had prepared 2 charts pertaining to the number of candidates, who would qualify, if the norms as applied in the examination held in previous last selections were adopted, as also the number of candidates who would qualify on the norms as revised by the System Manager for this selection. The charts have been marked as C-1 and C-2 by the Court. The charts make an interesting reading and are being reproduced herein below:
These two charts have been supplied to the Court by counsel for the High Court along with the affidavit which has been filed on 16.08.2012. Column 3 of Chart No. 1 is in itself sufficient to establish that if the type sheets were evaluated on their own merit treating the maximum words as 500 then only 149 candidates would qualify on the reduced aggregate as fixed in meeting dated 21.07.2011 i. e. 105 General category candidates, 27 candidates of OBC, 17 candidates of SC and 0 candidate of ST category.
The second chart (marked as C-2) depicts an all together different picture. Column No. 1 discloses that in all 269 candidates (198 General, 54 OBC, 17 SC and 0 ST) would qualify, if the answer sheets are evaluated keeping in view the maximum words as 500, formatting and errors committed as was done in the last examination. Column No. 2 depicts that 545 candidates (369 General, 128 OBC, 48 SC and 0 ST) would qualify if the answer sheets are evaluated by scaling up the marks keeping in view the maximum words as 400.
What follows is that the System Manager not only applied different methods for evaluation even after reducing the maximum words to be typed from 500 to 400. He further went on to after the mechanics for awarding marks with reference to the one adopted in the previous examinations.
When were these charts prepared by the System Manager and where they ever placed before the Judges Committee are questions which remain unanswered.
Why was the result as disclosed in Column No. 1 of Chart C-2 not adopted. As 269 candidates would have qualified which is near the number now declared successful. If the desire was to have larger number of candidates for the post of ARO, for which the novel method of evaluation is sought to be justified both by the System Manager and the High Court, then why was the result as per column 2 of Chart C-2 not accepted.
How could the System Manager alter the norms of evaluation so frequently without the same been placed before the Judges Committee. He appears to have become the norms maker and the executor all in himself as per his own whims and fancies.
The plea of the High Court that criteria for evaluation have been applied uniformly is no answer to the criteria applied itself being wholly arbitrary.
The Court has examined the four answer sheets of candidates made available, there are one set of marks recorded on each of them. On what basis System Manager has prepared the charts, said to have been placed before the Judges Committee in its meeting on 18.07.2011 and thereafter in the meeting dated 23.07.2012, is not known. It appears that he has recorded figures on his own without anything being reflected from the answer sheets of the candidates specifically pertaining to evaluation done keeping in mind the maximum typing words as 500. This Court may record that there are no other marks (raw marks) recorded in answer sheets except the one referred to above.
From Charts C-2, column-1 it is further clear that on evaluation of the computer answer sheets on the norms applied in the last examination keeping in view the maximum words as 500 words as many as 269 candidates would qualify. If evaluated by scaling up the marks keeping in view maximum words as 400 as many as 545 candidates will qualify. Therefore, recital in affidavit and the report of System Manager that norms of evaluation were altered so as to have more candidates is false. It is also false on the part of the System Manager to suggest to the Judges Committee that if maximum words were fixed at 500, sufficient number would not qualify. (Ref. Minutes of the meeting dated 23.07.2012, reproduced above).
It is left open for the Five Judge Committee to examine as to whether the System Manager has falsified figures only to present a misleading picture before the Judges Committee or not and to take suitable action if warranted.
The petitioners appear to be justified in contending that once an advertisement has been published and norms for selection have been laid down then such rules notified for selection cannot be altered in the mids of the selections. In the facts of the case the rules have been altered by the Judges Committee after the advertisement has been published. In its meeting held on 29.09.2010 it was decided to do away with the interview and to confine the process of selection on the basis of written main test and computer knowledge test.
In the affidavit filed by the High Court it has been stated that such decision was taken by the Judges Committee in the mids of the process of selection only to bring the selections in conformity with Rule 12 of 1976 Rules.
Rule 12(4) of 1976 Rules provides for selections being held on the basis of the written examination including stenography, typing and computer knowledge, if any. It does not talk of any interview. But at the same time it has to be remembered that once the advertisement has been published by the Registrar General under the authority of the Hon'ble The Chief Justice, it is to be presumed that the Hon'ble The Chief Justice has granted approval to the method of selections so notified. Interview can also be included in addition to the tests for selection provided for under rule 12(4) by the Chief Justice in exercise of his powers under Rule 45 of Rules, 1976.
The Supreme Court of India has repeatedly held that the procedure for selection cannot be altered once the process of selection has commenced, and the process commences with the advertisement. If under the advertisement four stages were notified for selection, it was not open to the Judges Committee to alter the said procedure for selection once the process had begun. Reference- Madan Mohan Swaroop (supra).
If the Judges Committee was of the opinion that an error has crept in the advertisement, it was required to cancel the same and to publish a fresh advertisement giving details of the procedure to be followed.
However, in the facts of the case since the candidates, who qualified the preliminary examination and main written test had been informed at the time of issuance of call letter for computer knowledge test that there shall be no interview and selections shall be made on the basis of aggregate marks obtained in the main written examination and computer knowledge test only, this Court finds that no prejudice has been caused to any of the short listed candidates including the present petitioners. Therefore, although this Court finds that the Judges Committee could not have altered the rules once the process of selection had begun, yet in the facts of the case in absence of any prejudice being caused to any of candidates, including the petitioners and the respondents, as the change was intimated through the call letter before type test, this Court is not inclined to interfere with the selection on that ground.
Now turning to the issue of confining the reserved category candidates within their stream irrespective of the overall merit secured by them as per their aggregate marks of main written test and computer knowledge test.
Article 229 of the Constitution of India confers the power of appointment of officers and servants of the High Court upon the Chief Justice of the Court. Article 229(2) confers the power to frame rules for laying the conditions of service for such officers and staff of the Court. Sub-clause (2) of Article 229 reads as follows:
"(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other judge or officer of the Court authorised by the Chief Justice to make rules for the purpose."
The power of the Chief Justice to frame rules for laying down the conditions of service of officers and servants of the High Court as flows from Article 229 (2) is subject to same conditions. The legal position in that regard has been explained in paragraph 18 and 19 of the judgment of the Apex Court in the case of High Court of Judicature at Rajasthan vs. Ramesh Chandra Paliwal and another; (1998) 3 SCC 72. It has been laid down in paragraph 19 that the rule making power of the Chief Justice is subject to three conditions. Para 19 reads as follows:
"19. The rule making power of the Chief Justice is subject to three restrictions:
(i) If the rules relate to salaries, allowances, leave or pensions, they have to be approved by the Governor of the State.
(ii) If the Legislature of the State has made any law, the rules made by the Chief Justice would operate subject to the law.
(iii) If the Governor of the State has, by rule, provided that no person, not already attached to the Court, shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission, the Chief Justice while making appointment on such post shall first consult the State Public Service Commission."
Since power to frame rules by the Chief Justice follows from the Constitution of India, it also subject to the fundamental right of equality granted under Article 14 and the fundamental right of equal opportunity in the State employment guaranteed under Article 16(1) of the Constitution of India.
Article 14 and 16(1) have been held to be the basic structure of the constitution. Ref. State of Karnataka v. Uma Devi-III (2006) 4 SCC 1.
The conditions which apply to rule making powers of the Chief Justice will apply with same force on the authority of the Full Court. Any decision of the Full Court would be liable to be tested on the principles of arbitrariness and the right of equal opportunity in employment guaranteed under Article 16(1) of the Constitution of India.
A Division Bench of this Court in the case of High Court of Judicature at Allahabad vs. Raj Kumar and others, reported in 1997 AWC (Supp) 489 has held that Rule 23 of Rules 1976, like Article 16(4) of the Constitution of India, is an enabling provision. It confers a discretion upon the Hon'ble Chief Justice to provide for reservation in favour of various categories. It is for the Chief Justice to provide or not to provide reservation under Rule 23. However, since the Chief Justice has now decided to provide for reservation in favour of SC/ST and OBC categories candidates as against the posts of A.R.O., the issue with regard to reservation being provided looses all significance.
This reservation provided by the Chief Justice in favour of OBC, SC and ST candidates is a vertical reservation.
It is no doubt true that the provisions of U.P. Act No. 4 of 1994 will not be applicable so far as the appointment against posts covered under 1976 Rules are concerned, inasmuch as from Section 2(c) of Act 4 of 1994 itself it is clear that the rules have not been applied in respect of officers and employees of the High Court.
The Apex Court in the case of Public Service Commission Uttaranchal vs. Mamta Bisht and others (supra) has explained that because of vertical reservation provided in favour of a Backward Class/SC/ST, candidates belonging to such reserved class competes against non reserved posts also and if they are appointed against the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective class. The members of reserved categories candidates, who are selected on their own merit, get selected to open category vacancies, equal or even exceeds the percentage of posts reserved for SC, it cannot be said that the reservation quota for SC has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Ref: Paragraph 9).
A Division Bench of this Court in the case of Sanjeev Kumar Singh v. State of U.P. and others; 2007(2) ALJ 86, which has since been reiterated in the judgment reported in 2008(2) ALJ 314; Shiv Prakash Yadav & Ors. v. The State of U.P. & Ors., has explained that if certain seats are reserved it would not mean that unreserved seats are reserved for general category candidates i. e. unreserved category. There is no reservation for general category candidates. In other words when certain seats are reserved, a reserved category candidate in addition to reserve seats can always compete in respect of unreserved seats. By way of example it has been pointed out that if there are 100 seats, 27 are reserved for OBC, 18 for SC and 2 for ST, it would mean that the OBC category candidates would be able to compete against 27 seats as well as remaining 53 unreserved seats. On the contrary the general category candidates can compete only against 53 seats, which are unreserved seats.
The Apex Court in the case of Jitendra Kumar Singh and another vs. State of U.P. and others; (2010) 3 SCC 119 in paragraph 39 framed the core issue, which was under consideration before it. Paragraph 39 reads as follows:
"39. We have considered the submissions made by the learned counsel for the parties. The core issue in the writ petitions was with regard to filling up the general category posts by candidates belonging to the reserved category candidates on their obtaining more marks than the last candidate in the general category. ......."
After referring to the judgment of the Post Graduate Institute of Medical Education & Research v. Faculty Assn.; reported in (1998)4 SCC 1 (Para 32), the Apex Court in paragraph 43 again reiterated the issue which was under examination before it in the said case. Paragraph 43 reads as follows:
"43. It is in this context, we have to examine the issue as to whether the relaxation in fee and upper age-limit of five years in the category of OBC candidates would fall within the definition of "reservation" to exclude the candidates from open competition on the seats meant for the general category candidates."
The answer given to the aforesaid question is contained in paragraph 48, 49, 50, 51 and 52, which are being quoted herein below:
"48. In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the general category candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list.
49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantage of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16(1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates on a par with general category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates.
50. It has been recognised by this Court in Indra Sawhney that larger concept of reservation would include incidental and ancillary provisions with a view to make the main provision of reservation effective. In Indra Sawhney it has been observed as under: (SCC pp. 692-93, para 743) "743. The question then arises whether clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question it is well to examine the meaning and content of the expression 'reservation'. Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are 'any provision for the reservation of appointments or posts'. The question is whether the said words contemplate only one form of provision namely reservation simpliciter, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its weep all supplemental and ancillary provisions.... and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration- the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i. e. to ensure that the members of the reserved class fully avail of the provision for reservation in their favour."
(emphasis in original) In our opinion, these observations are a complete answer to the submissions made by Mr L.N. Rao and Dr. Rajeev Dhavan on behalf of the petitioners.
51. We are further of the considerate opinion that the reliance placed by Mr Rao and Dr. Dhavan on K.L. Narasimhan is misplaced. The learned Senior Counsel had relied on the following observations: (SCC p.293, para 5) "5. .........Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate."
The aforesaid lines cannot be read divorced from the entire paragraph which is as under: (K.L. Narasimhan case, SCC p.293, para 5) "5. It was decided that no relaxation in respect of qualifications or experience would be recommended by Scrutiny Committee for any of the applicants including candidates belonging to Dalits and Tribes. In furtherance thereof, the faculty posts would be reserved without mentioning the speciality; if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If no Dalit and Tribe candidate was found available, the post would be filled from general candidates; otherwise the reserved post would be carried forward to the next year/advertisement. 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."
These observations make it clear that if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate.
52. In the present case, the concessions availed of by the reserved category candidates in age relaxation and fee concession had no relevance to the determination of the inter se merit on the basis of the final written test and interview. The ratio of the aforesaid judgment in fact permits reserved category candidates to be included in the general category candidates on the basis of merit."
From the advertisement as well as from Rule 12(4) of Rules 1976 it is apparently clear that merit list in the facts of the case was to be prepared on the basis of the aggregate marks obtained in written examination and computer knowledge test. Meaning thereby that it was an open competition between all categories of candidates and the merit list was to be prepared on the basis of the aggregate marks obtained in the written tests, as detailed above.
For a selection, based on open competition, it is but necessary that the general category candidates and the candidates of reserved categories are tested on the same merit and if in that case a reserved category candidate succeeds in open competition with the general category candidates, he must be placed amongst the general category candidates. Therefore, irrespective of the application of Section 6(3) of Act, 1994 any action of the High Court to confine the persons belonging to reserved categories within their own channel ignoring their merit viz-a-viz the members of general category would be per se violative of Article 16(1) of the Constitution of India and the very concept of open competition.
Facts of the present case are more or less identical to those which were considered by the Apex Court in the case of Jitendra Kumar (supra). In the present case also only relaxation in age and fee was provided to reserved category candidates. There was no other relaxation made available to the reserved category candidates in the matter of minimum marks fixed for qualifying the preliminary as well as main written examination so as to become eligible for appearing in the computer test examination. At least no such fact has been brought on record or is otherwise reflected from the documents made available to the Court by the Computer Center or by the High Court. It is, therefore, apparent that the reserved category candidates in the facts of the case on securing more marks than the last selected candidate of the general category is entitled to be adjusted against the seats within the general category.
The defence taken by the High Court with reference to the Full Court resolution dated 10.04.2004 must fail for violation of fundamental right guaranteed under Article 14 and Article 16(1) of the Constitution of India and the law which has been laid down by the Apex Court as noticed above, which becomes the law of the land and binding upon the High Court on the administrative side in view of Article 141 of the Constitution of India. The stand so taken has to be rejected. It is held that the resolution of the Full Court dated 10.04.2004 must give way and cannot be applied to the matter of preparation of select panel in the facts of the case.
This Court may now examine other objections raised by the High Court and the selected candidates.
The first being that the petitioners having participated in the process of selection with open eyes cannot be permitted to now question the method of selections in view of the law laid down by the Supreme Court in the case of Amian Jyoti Barooah v. State of Assam and others; (2009)3 SCC 227. The second being that the petitioners, having not achieved the minimum cut of marks, have no locus to challenge the selection.
In my opinion both the objections are totally misconceived. It was never made known to the petitioner at the time of computer test was held as to what were the norms of evaluation and therefore the question of being made aware of the norms pertaining to evaluation of the computer test answer sheets before selections is totally unfounded. As a matter of fact the norms of evaluation of the answer sheets in the facts of the case have been determined by the System Manager subsequent to the computer test. The judgment in the case of Amian Jyoti Barooah (supra), relied upon by the counsel for the respondents, is clearly distinguishable.
This Court has already recorded that the system of evaluation adopted in the facts of the case is patently arbitrary and unreasonable. Therefore, the petitioners, who have participated in the process of selection, have a right to challenge the result prepared on the basis of such wrongful and arbitrary evaluation of the computer test answer sheets.
The challenge to the locus of petitioners to question the select list on the ground that they could not achieve the minimum marks fixed for being selected is also without substance. The awarding of the marks to the individual candidates itself is based on a norm which has been found by this Court to be patently arbitrary. Therefore, the result prepared on that basis which reflects that petitioner had achieved marks less than the minimum also stands vitiated for being arbitrary.
On the facts of this case, it is the petitioners, who, after being successful in the preliminary written examination participated in the main written test and the computer knowledge test, can challenge the process of selection. It may be clarified that it is not the case of the High Court that none of the petitioner could achieve the minimum fixed for general category in the written examination to be eligible for being considered for computer test. At least there is no such facts on record. Therefore, this Court has no hesitation to record that the petitioners have the locus to challenge the select panel in the facts of the case.
This Court may further record that challenge in the present petition to the select panel is also on the ground of violation of fundamental rights guaranteed under Article 14 and 16(1) of the Constitution of India. The writ at the behest of the petitioner is legally maintainable and cannot be thrown out by this Court on the objections raised.
Another objection had been taken on behalf of the respondents namely that the issues which are being examined by this Court are not so pleaded in the writ.
As is clear from the facts recorded here in above, illegalities in the matter of evaluation of computer test answer sheets as also in the matter of preparation of the select panel have been noticed after the original records were examined by this Court. It is the duty of the Court of law to strike at the illegality which has been noticed from the records placed before it.
A Division Bench of this Court in the case of Ravindra Kumar v. Sachiv Basic Shiksha Board, U.P. at Allahabad & Ors., reported in 2011(2) ESC 1347 has laid down that suo moto exercise of power by the Single Judge to cancel an illegal appointment where salary is paid by the State Government has to be upheld, inasmuch as purity in administration has to be maintained and High Court on the judicial side cannot close its eyes.
The Supreme Court of India has repeatedly held that where technicalities and substantial justice are pitted against each other, cause of substantial justice must prevail. (Ref. Ghanshyam Das & Others v. Dominion of India & Others; 1984 (3) SCC, 46, Dal Singh v. King Emperor of India, AIR 1917 PC 25; Collector, Land Acquisition Anantnag vs. Mst. Katiji & Ors., AIR 1987 SC 1353; Mohammad Swalleh & Ors. v. IIIrd Additional District Judge, Meerut & Anr., AIR 1988 SC 94;: and Sree Jain Swetambar Terapanthi Vid(s) v. Phundan Singh, AIR 1999 SC 2322).
The selections held for the post of ARO stand vitiated from the stage of evaluation of the type sheets. The Committee may either follow the norms of the last selections or lay down the norms for fresh evaluation of the type sheets taking into consideration as to how with the increase of mistakes, there shall be gradual increase in the deduction of marks and the words not typed shall be taken as mistake. The confining of the selected reserved category candidates in their respective categories is also held to be violative of Article 14 and 16 of the Constitution of India. The Full Court resolution can not hold the field in the facts of this case, in view of the judgments of the Supreme Court, referred to above. The select panel be prepared after fresh evaluation by ensuring that the candidates belong to reserved categories be adjusted against the post meant for open category (wrongly mentioned as General category) if they achieve more marks in aggregate than the last selected candidate within the general category.
The entire exercise shall be completed within one month from the date a certified copy of this order is filed before the Registrar General. The select list dated 25.07.2011 stands quashed. Writ petitions are allowed subject to the observations made.
27.08.2012 Pkb/