Hon'ble Prabhat Chandra Tripathi,J.
(Per: Tarun Agarwala,J.) We have heard Sri Radha Kant Ojha, the learned senior counsel assisted by Sri A.K.Singh and Sri V.K.Singh, Mrs. Darshana Vatsa, Sri S.K.Chaubey, Sri V.K.Rai, Sri V.K.Pandey, Sri Sanjiv Singh, Sri Rakesh Kumar Tripathi and Sri Upendra Kumar Verma, the learned counsel for the petitioners and Sri M.N.Singh, the learned counsel for the U.P. Public Service Commission.
This group of petitions raises a common question and are being decided together.
The fact, as culled out from the assertions made in the writ petitions, counter affidavit and the supplementary counter affidavit is, that the petitioners hold a valid degree of Bachelor of Homeopathic Medicine and Surgery (BHMS). An advertisement No.1 of 2013-14, dated 24.9.2013 was issued by the U.P. Public Service Commission (hereinafter referred to as the Commission) pursuant to a direction from the State Government to fill up 177 posts of Homeopathic Medical Officer in which 23 posts were reserved for Other Backward Classes, 41 posts for Scheduled Caste category and 113 posts for unreserved category. Pursuant to this advertisement, 5577 candidates applied, which was more than 20 times the number of seats offered.
Paragraph 7 of the general instructions contemplated that in case a large number of applications are received, the Commission may hold a screening test in order to weed out the candidates. Based on this instruction, the Commission issued a resolution dated 4.7.2014 for holding a screening test. This decision of the Commission was approved by the State Government on 3.9.2014. The State Government further directed the Commission to prepare a syllabus, which was done and thereafter approved by the State Government on 2.1.2015. Subsequently, an advertisement was issued on 24.2.2015 intimating the candidates that a screening test would be held in which objective types question would be required to be answered carrying 150 marks. The screening test was eventually held on 19.4.2015 and a combined merit list was prepared. Subsequently, a decision was taken by the Examination Controller on 8.6.2015 to prepare a merit list in accordance with the resolutions dated 31.12.2012 and 30.8.2013 . This decision was approved by the Secretary of the Commission on 9.6.2015. The resolution dated 31.12.2012 of the Commission indicates that a merit list is required to be prepared category wise and thereafter candidates are to be called in the ratio of 1:8, i.e., 8 candidates for one post for verification of the documents, and thereafter, candidates would be called for interview in the ratio of 1:3, i.e., 3 candidates for one post. Based on the approval by the Secretary on 9.6.2015, a press communique dated 21.7.2015 was issued intimating that candidates in the ratio of 1:8 are being called as per the merit list for verification of their testimonials and other documents and thereafter candidates in the ratio of 1:3 would be called for interview. Subsequently on 6.4.2016 another communique was issued by the Commission calling the candidates in the ratio of 1:3 on various dates for interview.
The petitioners, being aggrieved by this communique dated 6.4.2016, have filed these writ petitions contending that they were successful in the screening test, but, were not called for interview and that the candidates having lesser marks were called for interview. The petitioners further contended that once a screening is done in the ratio of 1:8, no further short listing could be done in the ratio 1:3, in view of Rule 29(iii) and Rule 52 of the Uttar Pradesh Public Service Commission (Procedure and Conduct of Business) Rules 2011 (hereinafter referred to Rules of 2011) read with Rule 3 of the Uttar Pradesh Direct Recruitment through Public Service Commission Preliminary Examinations Rules, 1986 (hereinafter referred to as the Rules of 1986). The petitioners urged that the communique dated 6.4.2016 is arbitrary and should be quashed and that all candidates who have passed the screening test should be called for interview. In the alternative, the candidates qualifying the screening test should be called in the ratio of 1:8.
The counter affidavit of the Commission reveals that pursuant to the resolution dated 31.12.2012, a merit list was prepared category wise and thereafter candidates in the ratio of 1:8 were called for verification of the documents and thereafter candidates in the ratio of 1:3 were called for interview and, in this manner, 809 candidates are being called for interview. The bifurcation and calculation of these 809 candidates has been specified in 17 of the counter affidavit filed in Writ Petition N paragraph o.17868 of 2016, which reveals an interesting method of short listing of candidates by the Commission.
It was contended that for the unreserved category 113 posts were advertised. Consequently, 3 candidates for one post would lead to calling 113x3=339 candidates for interview. The last candidate received 85 marks and it was found in the merit list that there were 49 more candidates having 85 marks and consequently 339+49=388 candidates would be called for interview. Similarly for 23 posts of Other Backward Classes, 3 candidates for each post totaling 69 candidates would be called for interview. The last candidate received 99 marks and consequently, as per the policy of 29.5.2004 the merit list was scaled down to 85 marks, as a result 207 more candidates came under this purview and, therefore, 69+207=276 candidates were being called for interview in the Other Backward Class category. Similarly in the Scheduled Caste category against 41 post, in the ratio of 1:3, 123 candidates were being called for interview.. The last candidate received 75 marks. There were 8 more candidates who had received 75 marks and, therefore, total number of 131 candidates were being called for interview.
The counter affidavit further reveals that in the same fashion 14 more candidates were being called after considering the horizontal reservation in each category. In this manner 809 candidates are being called for interview.
Having heard the learned counsel for the parties, it would be appropriate to refer to the Rules of 2011. For facility, Rule 29(iii) of the Rules of 2011 is extracted here under:-
"29 (iii). In cases of direct selection through interview only, if the proportion of candidates to the number of posts is high, the Commission may, after having considered feasibility, expediency and other aspects to hold examination, decide to hold preliminary examination/screening test of the candidates."
The aforesaid Rule provides that considering the feasibility, expediency and other aspects, the Commission may decide to hold a preliminary examination/screening test of the candidates where the proportion of candidates to the number of posts is high.
Rule 52 of the Rules of 2011 provides as under:
"52. Notes for preliminary weeding of candidates shall be submitted in the manner prescribed to the Commission, and the Commission shall admit such number or candidates to interview, as they deem fit."
The aforesaid Rule indicates that the preliminary weeding of candidates would be done in the manner prescribed by the Commission. Consequently, the procedure for holding the preliminary examination has to be prescribed by the Commission. In this regard Rule 2(vi) of the Rules of 1986 defines "preliminary examination" as under:
"2 (vi) "Preliminary Examination" means screening test to be conducted by the Commission with the purpose of finding out suitable candidates for admission to the main examination or interview."
The aforesaid Rules indicates that screening test to be conducted by the Commission for the purpose of finding out suitable candidates for admission to the main examination or interview.
Rule 2(viii) of the Rules of 1986 defines "suitable candidates" as under:-
"2(viii) "Suitable candidates" means candidate securing minimum number of marks as may be fixed by Commission in its discretion at Preliminary Examination thereby enabling him to appear in the main examination or interview as the case may be."
Rule 3(2) of the Rules of 1986 provides as under:-
"3(2) Where a preliminary examination is held only such candidates as qualify in the preliminary examination will be entitled for admission to Main Examination or interview, as the case may be."
The aforesaid Rules provides that those candidates who qualified in the preliminary examination would be entitled to appear for the interview. The words "qualify" as provided in Rule 3(2) of the Rules is of importance.
Admittedly the Commission decided to hold a preliminary examination/ screening test in order to weed out the candidates for the purpose of calling "suitable candidates" for the interview. No cut of marks or minimum marks was specified while holding the screening test. The manner of short listing of the candidates, as per Rule 52 of the Rules of 2011, is as prescribed by the Commission. The Commission had issued a resolution dated 31.12.2012 indicating that the merit list has to be prepared category wise and thereafter candidates in the ratio of 1:8, i.e., 8 candidates for one post would be called for verification of the documents and thereafter candidates in the ratio of 1:3 would be called for interview. Such resolution dated 31.12.2012 was adopted by the Commission for this examination.
The idea to call candidates in the ratio of 1:8 for verification of the document is salutary. This is done for the purpose to ensure that suitable candidates in the ratio of 1:3 are available for the interview. For example, if the Commission had initially issued a direction to call the candidates in the ratio 1:3 for the purpose of verification and thereafter for interview and if it was found that certain candidates did not possess the requisite documents, they would have been debarred from appearing for the interview and thereby the ratio of 1:3 would not have fallen short. The Commission would again be required to do the necessary exercise for calling further candidates to achieve the target of 1:3. To avoid duplication of work and wastage of time, the candidates in the ratio of 1:8 were initially called for verification of documents and thereafter on the basis of merit list prepared category wise, the requisite candidates in the ratio of 1:3 were called for the interview. In our opinion, such resolution is in consonance with Rule 29(iii) of the Rules of 2011 read with Rule 52 of the Rules of 2011 and Rule 3 of the Rules of 1986.
The contention of the petitioners that the candidates in the ratio of 1:8 are alone to be called and there cannot be another short listing reducing it to 1:3 is incorrect. The object of screening test is to eliminate the long list of candidates. The preliminary examination/screening test provides a wider scope to get the best of the talent by way of competition in the examination. The ultimate object is to get atleast 3 candidates as prescribed by resolution who would be called for the interview; against one post. The contention of the petitioners that they qualified in the screening test is not correct. The screening test was only a step in aid for calling the candidates for interview in the ratio of 1:8 and thereafter in the ratio of 1:3. The preliminary examination/screening test only fixed the eligibility criteria. Merit was not being judged.
The action of the respondents in lowering the marks of the last candidate in Other Backward Class category and bringing it down to 85 is not the constitutional mandate. Such scaling down, as per the resolution dated 29.5.2004, cannot be invoked nor was the same adopted for this examination. Once a ratio of 1:3 has been fixed, the respondents are required to call three candidates from the merit list in each category for the number of posts advertised. Reservation at this stage cannot be applied.
In the instant case 177 posts were advertised. Taking the ratio of 1:3, i.e., 3 candidates for 1 post, 531 candidates would be invited for the interview. As per the supplementary counter affidavit dated 24.5.2016, the last candidate at Sl.No.531 secured 89 marks and 9 other candidates had also secured the same marks, i.e., 89, therefore, the total number of candidates in the ratio of 1:3 would be 540, that would be the correct ratio bringing parity in each category without there being any discrimination. The procedure that was adopted by the respondents, which is reflected in paragraph 17 of their counter affidavit in Writ petition No.17868 of 2016 is not correct, inasmuch as, the ratio for Other Backward Class category becomes 1:12, namely, 12 candidates are being called for interview for one post, whereas, for the unreserved category and Scheduled Caste category the ratio remains 1:3. Such increase in the number of candidates in the Other Backward Class category, as indicated in the counter affidavit of the Commission, becomes not only arbitrary but also discriminatory.
In the light of the aforesaid, the writ petitions are partly allowed. Since the interview was postponed, a writ of mandamus is issued directing the Commission to prepare a merit list category wise pursuant to the screening test and call the candidates in order of merit, in the ratio of 1:3, i.e., three candidates for one post.