JUDGMENT S.R. Singh, J.
1. The above three appeals are knit together by common questions of law and fact and hence for convenience sake, they have been taken up for disposal by a composite Judgment.
2. Special Appeal Nos. 240 of 99 and 410 of 99 stem from an order of the learned single Judge thereby allowing Civil Misc. writ petition No. 44649 of 1993 on the lines of judgment rendered in Civil Misc. writ petition NO. 24976 of 1993, Ramagya Chaubey v. State of U. P. and others, validity of which has come to be canvassed in Special Appeal No. 387 of 1998. The disputation pertains to recruitment to the posts of Sub-Inspector Civil Police, numbering 630-570 (male) and 60 (female) vide advertisement dated 4.10.91 (annexured as Annexure-1 to the affidavit in support of the stay application) as amended vide notification dated 26.10.1991. According to the initial advertisement, 525 vacancies were publicised out of which 475 were earmarked for male candidates and 50 for female candidates but the initial advertisement was subsequently modulated which made an accretion of 105 more vacancies as a consequence of which the number of vacancies to be filled by male and female candidates rose to as high as 570 and 60 respectively. It brooks no dispute that the recruitment is not circumscribed within any statutory service rules and as per the advertisement, it was to be made on the basis of written examination preceded by a preliminary test which was held on 28.6.1992 and by physical test held between January 4 and January 9. 1990. In all 36353 candidates applied for recruitment to the posts in question but as a result of screening by means of preliminary examination and physical test, 4649 candidates appeared in the final examination the result of which was declared on 19.7.93. The final examination culminated in qualifying 723 candidates for interview (viva voce) test. The respondents in the two appeals secured enough marks in the aggregate in the final written examination but they were reckoned out of consideration for interview due to the reason that they failed to secure 40% marks in one of the subjects. As a sequel to it, the respondents invoked the jurisdiction of this Court under Article 226 for the relief of a mandamus commanding the respondents to declare them successful for the posts of Sub-Inspector. Civil Police on the premises that according to the advertisement, it was not essential for the candidates to secure 40% marks in each subject in order to qualify for interview. The learned single Judge held the view that the result of the final examination was to be declared on the basis of total aggregate marks irrespective of whether a candidate had secured 40% marks in each subject or not and accordingly.
allowed the petition directing the appellants herein to declare the result of the writ petitioner attended with a command that he would not be declared unsuccessful "merely because he has not obtained 40% marks in one paper, i.e., in Hindi if he has been found otherwise fit and successful."
3. We have heard learned standing counsel appearing for the appellants and Sri C. B. Yadav, learned counsel representing the respondents. The question that surfaces for consideration is whether it was imperative for the candidates to have secured 40% marks in each subject in order to make way for interview. The learned standing counsel relied upon the Government Notification dated July 10. 1986 (Annexure-2 to the affidavit in support of the stay application) to enforce his submission that it was incumbent for the candidates to have secured 40% marks in each subject in order to qualify for interview. The notification on which the learned standing counsel has placed credence relates back to the selection of Sub-Inspector. Civil Police for training for the year 1986-87. The notification referred to, embodied specific provision that candidates had to secure 40% marks in each subject and a minimum of 50% in the aggregate. No such condition is stipulated in the advertisement dated 4.10.91 as modified by subsequent advertisement dated 26.10.91 pursuant to which the recruitment in question is sought to be made. The relevant provision of the advertisement reads as under :
'Ukta Parikshaon Me Safal ghoshit Abhiyarthtyon/ Abhiyarthini ko Sakshatkar hetu Amantrit Kiya Jayega. Yadi Safal Abhiyarthi/Abhiyarthini Adhik Sankhiya Me Hote Hain to Sakshatkar ke liye keval vahi Abhiyarthi/Abhiyarthini Bulayen Jayenge, Jinhone Pariksha me Adhiktam ank prapta kiya ho. Up Nirikshak. Nagrik Police ke jitne pad rikta honge, us sankhya ke lagbhag teen guna adhik Abhiyarthi Sakshatkar ke liye bulaye jayenge. Kist bhi dasha me asaphal Abhiyarthi sakshatkar me bulaye nahi jayenge. Sakshatkar me bulate samaye arakshan sambandhi Niyamo ka bhi poora dhyan rakha jayega."
4. The learned standing counsel placed reliance on a decision of the Supreme Court in M. P. Public Service Commission v. Navnit Kumar Potdar, AIR 1995 SC 77. Tn that case, advertisement was issued inviting applications for appointment to the post of presiding officer of the labour court constituted under the provisions of M. P. Industrial Relation Act. 1960. In view of Section 8(3)(c) of the said Act, it was prescribed in the advertisement that the applicants should have put in practice as an advocate or a pleader for a total period of not less than five years, ft would transpire that in view of large number of applications received from the general category candidates against four posts, a decision was taken by the Commission to call for interview only those applicants for interview who had completed 7 1/2 years of practice although in view of Section 8 (3) (c) of the Act, only five years of practice as an advocate or a pleader in the Madhya Pradesh was a minimum eligibility requirement as per the statute. It was canvassed that according to the statutory requirement, only five years of practice as an advocate or pleader was essential for qualifying for interview and, therefore, it was not open to the Commission to enlarge the said period to 7 1/2 years and debar the applicants who fulfil statutory requirement of five years of practice as advocate or pleader. The High Court allowed the writ petition taking the view that as the statutory qualification in respect of practice was only five years, raising the said period to 7 1/2 years was equivalent of laying down a criterion in violation of the prescribed statutory criterion. A direction was given either to call the applicants for interview who have completed five years of practice required by Section 8 (3) (c) of the Act or to screen the candidates through some other tests and thereafter to call only such candidates who qualify at the said screening test. The Supreme Court where the matter was taken, allowed the appeal and held as under:
"According to us, the High Court has not appreciated the true implication of the shortlisting which does not amount to altering or changing of the criteria prescribed in the Rule, but is only a part of the selection process. The High Court has placed reliance on the case of Praveen Kumar Trivedi v. Public Service Commission, M. P., 1986 Lab 1C 1990. where it has been pointed out that Commission cannot ignore a statutory requirement for filling up a particular post and cannot opt a criteria whereby candidates fulfilling the statutory requirements are eliminated from being even called for interview. As we have already pointed out that where the selection is to be made purely on basis of interview, if the applications for such posts are enormous in number with reference to the number of posts available to be filled upon, then the Commission or the Selection Board has no option but to shortlist such applicants on some rational and reasonable basis."
On the question as to whether in the process of shortlisting. the Commission had altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed against the post of presiding officer. labour court, the Supreme Court held in the case aforestated as under :
"It may be mentioned at the very outset that whenever applications are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidates amongst the applicants. In most of the services screening tests or written tests have been introduced to limit the numbers of the candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus. which govern the selection of the candidates. But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview."
5. In State of Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165 : AIR 1973 SC 2216, the Supreme Court was called upon to consider as to whether the appointments could have been offered only to those who had scored not leas than 55% marks when Rule 8 which was under consideration, in that case, made candidates who had obtained 45% or more in competitive examination eligible for appointment, The Apex Court held that Rule 8 was a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit and the one higher in rank is deemed to be more meritorious than the one who is lower in the rank. Accordingly, it was propounded that there was nothing arbitrary in fixing the scoring of 55% for the purpose of selection although a candidate obtaining 45% was eligible to be appointed. In State of U. P. v. Rafiquddin, AIR 1988 SC 162. the question was as to whether the Public Service Commission was competent to fix minimum marks under Rule 19 of U. P. Civil Services (Judicial Branch) Rules. 1951. as it then stood. Rule 19 of the rules under consideration jn that case visualised that Commission would prepare a list of candidates who had taken the examination for recruitment to the service "in order of their proficiency as disclosed by aggregate marks finally awarded to each candidate". And further that "if two or more candidates obtain equal marks in the aggregate the Commission shall arrange them in order of merits on the basis of (heir general suitability for the service." The proviso to the rule read as under :
"Provided that in making their recommendations the Commission shall satisfy themselves that the candidate :
(i) has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service ;
(ii) has obtained in the viva voce test such sufficiently high marks that he is suitable for the service."
It has been held by the Apex Court in that case as under :
"Where selection is made on the basis of written as well as viva voce test, the final result is determined on the basis of the aggregate marks. If any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate, the same has to be respected. Clause (ii) of the proviso to Rule 19 clearly confers power on the Commission to fix minimum marks for viva voce test for Judging the suitability of a candidate for the service. Thus, even if a candidate has obtained higher aggregate marks in written and viva voce test but if he had failed to secure the minimum marks in the viva voce test his name could not be included in the list prepared by the Commission under Rule 19."
6. There is no quarrel with the principles laid down by the Apex Court in the cases referred to above but the decisions aforestated bear no resemblance for application to the facts of the present case. The advertisement in question herein clearly postulates that if a large number of candidates have qualified in the written examination, then only such candidates would be called for interview who have secured 'maximum marks'. The notification dated July 10, 1986 reliance on which has been placed by the learned standing counsel, was in respect of a particular recruitment year. It cannot be attributed any force of the statutory rules. In the absence of any statutory rules, the recruitment has to be governed by what is provided in. the advertisement pursuant to which the recruitment is sought to be made. The advertisement in the pre'sent case, as already noticed, clearly postulates that only those candidates should be qualified for interview who have secured "maximum marks" in the final written examination. It nowhere prescribes any minimum mark in the aggregate or any minimum in each subject, i.e.. it nowhere provides that candidates will have to secure 40% marks in each subject and 50% in the aggregate in order to be able to make way for interview. Therefore, according to the advertisement, the criterion for calling the candidates for interview is the merit to be determined on the basis of total aggregate marks obtained in the final written examination. Accordingly, no exception can be taken to the view taken by the learned single Judge.
7. As a result of foregoing discussion, the appeals fail and are dismissed in limine.