# Ajay Prakash Dwivedi & Anr v. Union Of India & Ors - **Citation:** (2016) 7 ILRA 964 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-06 - **Bench:** Sudhir Agarwal, Prabhat Chandra Tripathi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-prakash-dwivedi-anr-v-union-of-india-ors-44092 - **Pages:** 6 ## Headnote S.S.C., Shri D.B. Kauser, Shri G.K. Singh, Shri Manoj Kumar Sharma, Ms Rollie Kauser, Shri V.K. Singh, Shri Vivek Misra Held - ## Text 964 INDIAN LAW REPORTS ALLAHABAD SERIES 35. Sri Shivam Yadav learned counsel for the respondent has raised a preliminary objection with reference to the right of the petitioners of Writ Petition No. 16066 of 2015 to maintain the present writ petition. As according to him, they had entered into a mutual agreement with the lease holder without the consent of NOIDA. 36. We need not enter into the said issue and leave the same to be examined by the Chief Executive Officer as directed above. 37. With the above observations and directions the writ petitions are disposed of. Interim orders are discharged. ------------ ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 06.07.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE PRABHAT CHANDRA TRIPATHI, J. Writ A No.- 43400 Of 2002 Ajay Prakash Dwivedi & Anr. ...Petitioners Versus Union Of India & Ors. ...Respondents Counsels for the Petitioners: Shri Vikash Budhwar, Shri S.C. Budhwar Counsel for the Respondents: S.S.C., Shri D.B. Kauser, Shri G.K. Singh, Shri Manoj Kumar Sharma, Ms Rollie Kauser, Shri V.K. Singh, Shri Vivek Misra Held - 1. Appearances: The court heard counsel for the petitioners and respondent-4; other respondents remained unrepresented. 2. Background of Petitioner-1: Petitioner-1 was appointed as a Technical Assistant (T-II-3) by the Indian Council of Agricultural Research (ICAR) on December 2, 1989, following an advertisement dated July 27, 1989. 3. Background of Petitioner-2 and Respondent-4: ICAR advertised more posts in March 1991. Petitioner-2 and respondent-4 both applied; Petitioner-2 was declared successful on September 4, 1991. 4. Initial Challenge: Respondent-4 initially filed an Original Application (OA) in 1991 before the Tribunal, challenging only the appointment of Petitioner-2. 7 All. Ajay Prakash Dwivedi & Anr. Vs Union Of India & Ors. 965 5. Delayed Impleadment: Years later, respondent-4 sought to implead Petitioner-1. A first application was rejected in 1998, but a second was allowed in 2001, despite the significant time lapse. 6. Tribunal Decision: On March 18, 2002, the Tribunal declared both petitioners' appointments illegal. It directed that respondent-4 be appointed and placed above Petitioner-2 in seniority, prompting this writ petition. 7. Termination During Pendency: Following the Tribunal's order, the petitioners' services were terminated on October 5, 2002. The petitioners subsequently amended their writ to challenge these terminations. 8. Ruling on Petitioner-1 (Jurisdiction & Limitation): The High Court held that the Tribunal exceeded its jurisdiction. The challenge to Petitioner-1 was barred by the statute of limitations (being 8-9 years late) and the principle of res judicata. Furthermore, respondent-4 had no locus standi as he did not participate in the 1989 selection process. 9. Grounds for Invalidating Petitioner-2: The Tribunal had previously voided Petitioner-2's appointment on two grounds: excessively high viva-voce marks and lack of requisite qualifications. 10. Viva-Voce Proportions: The High Court found that 30% marks for viva-voce (30 out of 100) is not inherently arbitrary for a technical post in a selection involving both written and oral tests. 11. Policy Decisions: The court noted that the allocation of marks for interviews is a policy decision and there is no "hard and fast rule" that 15-20% is the maximum limit. 12. Case Law Distinction (Education vs. Employment): The court highlighted the legal distinction between admissions to educational institutions (where high interview marks are discouraged) and public employment. 13. Employment Criteria: In matters of employment, the appropriate allocation of marks depends on the nature of the post and the specific recruitment rules. 14-17. Judicial Precedents: The court cited several Supreme Court rulings where interview weightages ranging from 20% to 50% were upheld as valid depending on the context of the recruitment. 18. Tribunal's Error on Marks: The High Court criticized the Tribunal for failing to consider established legal authorities that allow higher interview percentages and for applying a "straightjacket formula." 19. Comparative Merit: Record showed Petitioner-2 scored higher than respondent-4 in both the written exam and the viva-voce. Even if interview marks were excluded, respondent-4 would not have surpassed Petitioner2. 20. Qualifications: The court confirmed Petitioner-2 held a relevant degree (B.Sc. Agri & AH) from a recognized university, making the Tribunal's finding on lack of qualification incorrect. 21. Conclusion: The High Court quashed the Tribunal's judgment and set aside the termination orders. The writ petition was allowed, restoring the petitioners to their positions. List of Citations Ajay Hasia Vs. Khalid Mujib Sehravardi, 1981(1) SCC 722 State of U.P. Vs. Rafiquddin, AIR 1988 SC 162 966 INDIAN LAW REPORTS ALLAHABAD SERIES Anzar Ahmad Vs. State of Bihar, 1994(1) SCC 150 Jasvinder Singh Vs. State of Jammu and Kashmir, 2003(2) SCC 132 Bishnu Biswas and others Vs. Union of India and others, 2014(5) SCC 774 (Delivered by Hon'ble Sudhir Agarwal, J. & Hon'ble Prabhat Chandra Tripathi, J.) 1. Heard Sri Vikash Budhwar, learned counsel for petitioners and Ms. Lollie Kauser, learned counsel for respondent-4. None appeared for other respondents. 2. The Indian Council of Agricultural Research (the ICAR) published an advertisement for selection on various categories of posts on 27.7.1989. One of the post was a Technical Assistant TII-3. Petitioner-1 was one of the applicant. He was selected and appointed as Technical Assistant TII-3 on 2.12.1989. 3. Subsequently, ICAR again advertised for selection of candidates for some more posts including the post of Technical Assistant T-II-3 on 23/29.3.1991. In this selection, petitioner-2 as well as respondent-4 appeared. The result of above selection was declared. Petitioner-2 was declared successful on 4.9.1991. 4. Respondent-4 filed an Original Application no.1081 of 1991 before Central Administrative Tribunal, Allahabad (the Tribunal) challenging appointment of petitioner-2 only. 5. During pendency of the aforesaid application before Tribunal, respondent-4 filed an application no. 4032 of 1997 for impleladment of petitioner-1 challenging his appointment also. This application was rejected on 13.5.1998. Respondent-4 filed another application no. 4736 of 2000 for impleladment of petitioner-1 challenging his appointment. This application was allowed on 27.2.2001 and petitioner-1 was also impleaded in the original application. 6. The original application filed by respondent-4 was allowed by Tribunal on 18.3.2002. By this order, Tribunal held that appointments of petitioners are illegal. However, it further observed that it would not like to disturb appointments and leave it to ICAR to decide thereon. Tribunal also directed that respondent-4 should be appointed and be placed over and above petitioner-2. Hence this writ petition. 7. During pendency of writ petition, services of petitioners were terminated vide order dated 5.10.2002 pursuant to directions of Tribunal vide impugned judgement dated 18.3.2002 . The petitioners have amended the writ petition and challenged this order also. 8. After hearing learned counsel for parties and perusing the record we find no hesitation in holding that Tribunal exceeded its jurisdiction, acted wholly illegally when not only it permitted impleadment of petitioner-1 by allowing second amendment application after rejection of first one 7 All. Ajay Prakash Dwivedi & Anr. Vs Union Of India & Ors. 967 and without considering the fact that challenge to appointment of petitioner after more than 8-9 years by way of amendment and impleadment application was barred by limitation under Administrative Tribunals Act, 1985. Petitioner-1 was selected on 2.12.1989 in pursuance of advertisement dated 27.7.1989. Respondent-4 was not a candidate in this selection. Respondent-4 did not challenge this selection. He filed OA before Tribunal challenging appointment of petitioner-2 only after respondent-4 remained unsuccessful in selection held in 1991 in which petitioner-1 was not a candidate at all. The appointment of petitioner-1 was challenged for the first time by means of amendment application in 1997. This application was rightly dismissed. However, respondent-4 filed second application which was allowed on 27.2.2001. The limitation for challenging appointment of petitioner-1 before Tribunal is one year. Respondent-4 was not an applicant in the selection held in 1989 in which petitioner-1 was selected. Respondent-4 thus had no locus-standi to challenge selection and appointment of petitioner-1. This was not a public interest litigation before Tribunal and it ought not to have allowed second amendment application when one it was already rejected. Second application was also barred by the principles of res judicata. Even otherwise, there was no justification to entertain challenge regarding legality of appointment of petitioner-1. We also wish to clarify that petitioner-1 had requisite qualification according to the advertisement published in 1989. In view of above, impugned judgement and order of Tribunal in so far as it has declared selection and appointment of petitioner illegal, cannot be sustained and has to be set aside. Now, we proceed to consider impugned judgement and order to the extent it relates to petitioner-2 as well as respondent-4. 9. Petitioner-2 and respondent-4 appeared in the selection of Technical Assistant T-II-3 in pursuance of advertisement dated 23/29.3.1991. This selection was done on the basis of written examination as well as interview. Tribunal has observed that selection of petitioner-2 is illegal on the following grounds: (i) The marks in viva-voce were high. (ii) Petitioner no. 2 did not possess requisite qualification. 10. Tribunal has observed that marks for viva voce were high but has not clearly indicated as to how many marks were assigned for viva voce and how many marks were for written examination. It appears from judgment that 30 out of 100 marks were allocated for viva and 70 marks for written examination. 30 out of 100 is not such a high percentage for which a selection on the post of Technical Assistant T-II-3 in ICAR could be held illegal. 11. Prescription of marks in a selection for written and interview, all constitute policy decision and there is no hard and fast rule that aforesaid prescription of marks of 15-20% for interview is per arbitrary. 12. In the matter of admission to education institutions in Ajay Hasia Vs. Khalid Mujib Sehravardi, 1981(1) SCC 722, Court observed that allocation of more than 15% marks for oral interview would be arbitrary and unreasonable. 968 INDIAN LAW REPORTS ALLAHABAD SERIES 13. Since then this question has been considered in a large number of cases and Courts have explained proposition that appropriate allocation of marks for interview where selection is to be made by written test as well as interview would depend on nature of post and no straight jacket formula can be laid down. It has been held that there is a distinction in cases relating to employment and that of admission in academic course. Courts have emphasized time and again that for the purpose of admission in educational institution allocation of interview marks should not be very high but for the purpose of employment, allocation of marks for interview would depend on the nature of post as well as procedure of selection under the Rules. 14. In State of U.P. Vs. Rafiquddin, AIR 1988 SC 162 which was a matter relating to recruitment in judicial service of State of U.P., fixation of 35% marks as minimum qualifying marks in viva was upheld. 15. In Anzar Ahmad Vs. State of Bihar, 1994(1) SCC 150, which was a matter pertaining to recruitment and appointment of Unani Medical Officers, Court upheld allocation of 50% marks for viva and 50% marks for academic performance. 16. In Jasvinder Singh Vs. State of Jammu and Kashmir, 2003(2) SCC 132, for selection to the post of Sub-Inspector of Police, allocation of 20% marks for viva test against 80% marks of written test was held valid. 17. The above decisions have been reiterated recently in Bishnu Biswas and others Vs. Union of India and others, 2014(5) SCC 774. In that case Rules did not envisage holding of interview at all but after holding written test interview was included and this has been held to be bad. 18. Looking to nature of institution, post in question which involves 30% marks for interview per se cannot be said to be bad. Further, respondent-4 had also been considered with same standard as petitioner-2 and that being so, in our view Tribunal was not justified to interfere with selection on the ground that marks of viva voce were high. It is also unfortunate that though Tribunal has deprecated marks of viva voce but has not discussed the matter in the light of various authorities on the subject wherein it has clearly been held that there is no hard and fast rule to show that in every case more than 15% marks for interview would be bad or arbitrary. As we have already said, in State of U.P. v. Rafiquddin (supra), Court upheld 35% marks for interview; in Anzar Ahmad (supra) 50% marks for interview and in Jasvinder Singh (supra) 20% marks for interview were upheld. 19. Further petitioner-2 had scored 29.4 and 20.7 marks in written examination and viva voce whereas respondent-4 had obtained only 27.8 and 18.8 marks in written examination and viva voce. Petitioner-2 had obtained more marks than respondent-4, not only in viva voce but also in written examination. In case marks of viva voce are ignored and marks of written examination are taken, even then, respondent-4 could not have been selected in place of petitioner-2. 7 All. Home Guard No. 0384 Ram Nath Gupta & Ors. Vs State Of U.P. & Ors. 969 20. Petitioner-2 had requisite qualification as advertised in the advertisement. In any case petitioner-2 was B.Sc. (Agri) (AH) from GB Pant Agricultural University, Pant Nagar. According to Tribunal, agricultural is relevant field so it can not be said that the petitioner did not possess degree in the relevant subject. Both the reasons given by Tribunal for invalidating selection of petitioner-2 are incorrect. Hence, findings of Tribunal with respect to appointment of petitioner-2 as well as respondent-4 are also bad and cannot be sustained. 21. In view of our findings above, part of the judgment holding selection of petitioner-1 and 2, irregular/illegal and putting respondent-4 above petitioner-2 in merit list is illegal and the same is quashed. Consequently, termination order passed by ICAR, pursuant to observations made by Tribunal is also set aside. The writ petition is accordingly allowed. ------------ ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 08.07.2016 BEFORE THE HON'BLE DEVENDRA KUMAR UPADHYAYA, J. Writ A No.- 47479 Of 2015 & Connected With Other Cases Home Guard No. 0384 Ram Nath Gupta & Ors. ...Petitioners Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioners: Shri Shailesh Verma, Shri Vijay Gautam, Shri Vinod Kumar Mishra , Shri P.N. Shukla, Shri P. N.Shukla Counsel for the Respondents: C.S.C. Held - Procedural Orders: The Court accepted the rejoinder affidavit and allowed an oral prayer to amend the description of petitioner no. 1 to "Home Guard No. 0384." Consolidation of Cases: Since all petitions sought similar relief regarding pay parity and regularization, the Court decided to adjudicate all matters through this common judgment. Petitioners' Prayer: The Home Guards requested pay and benefits equal to regular police personnel based on a 2015 Supreme Court precedent. Some also sought regularization of services and regular salary instead of an honorarium. State's Initial Defense: An Expert Committee (formed in 2013) argued that Home Guards are a "voluntary force" and not "civil post" holders. They claimed duties, recruitment, and training were not comparable to regular police constables.