# Ashish Kumar Chaurasia v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-11
- **Case number:** Civil Misc. Writ Petition No. 52089 of 2013
- **Bench:** Rajes Kumar, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kumar-chaurasia-v-state-of-u-p-and-ors-42734
- **Pages:** 7

## Headnote

C.S.C., Sri Ayank Mishra

U.P. State Electricity Board(Procedure &
conduct
of
Business)Regulation
1978Regulation-30,31 and 74- Advertisementvacancy of Assistant Engineer-minimum
eligibility
of
qualification-60%
in
degree/diploma in concern trade-validity of
such requirement amounts to denial of
opportunity to participate in competitive
examination-who even otherwise eligibleheld-such
requirement
contrary
to
regulation-not
sustainable-quashedconsequential direction given.

Held: Para-13
Thus the purpose of shortlisting would be
achieved without prescribing any minimum
cut-off marks. Further, we may observe that
where there is a written competitive
examination, providing higher cut off marks
at the threshold, by changing the minimum
qualifications, to exclude the candidates,
who fulfill the minimum qualification, from
even applying is not at all justified in
absence of a specific power provided for that
purpose
under
the
Statutory
Rules/Regulations.
As
no
statutory
Rule/Regulation has been shown to us and,
particularly, when the advertisement itself
provides for a written test, we do not find
any rational basis to provide for cut off
marks of 60% for the General and OBC
candidates and 55% marks for SC/ST
candidates for being eligible to apply for
undergoing the recruitment process.

Case law discussed:
(2003) 11 SCC 559; 2010 (78) ALR 525

## Text

3 All] Ashish Kumar Chaurasia Vs. State of U.P. and Ors.
1507
the Rules 2001, strictly, and in true spirit
thereof.

55. The petitioner shall be entitled to
cost, which I quantify at Rs.2000/-
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 11.10.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MANOJ MISRA, J.

Civil Misc. Writ Petition No. 52089 of 2013

Ashish Kumar Chaurasia ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C., Sri Ayank Mishra

U.P. State Electricity Board(Procedure &
conduct
of
Business)Regulation
1978Regulation-30,31 and 74- Advertisementvacancy of Assistant Engineer-minimum
eligibility
of
qualification-60%
in
degree/diploma in concern trade-validity of
such requirement amounts to denial of
opportunity to participate in competitive
examination-who even otherwise eligibleheld-such
requirement
contrary
to
regulation-not
sustainable-quashedconsequential direction given.

Held: Para-13
Thus the purpose of shortlisting would be
achieved without prescribing any minimum
cut-off marks. Further, we may observe that
where there is a written competitive
examination, providing higher cut off marks
at the threshold, by changing the minimum
qualifications, to exclude the candidates,
who fulfill the minimum qualification, from
even applying is not at all justified in
absence of a specific power provided for that
purpose
under
the
Statutory
Rules/Regulations.
As
no
statutory
Rule/Regulation has been shown to us and,
particularly, when the advertisement itself
provides for a written test, we do not find
any rational basis to provide for cut off
marks of 60% for the General and OBC
candidates and 55% marks for SC/ST
candidates for being eligible to apply for
undergoing the recruitment process.

Case law discussed:
(2003) 11 SCC 559; 2010 (78) ALR 525

(Delivered by Hon'ble Rajes Kumar, J.)

1. We have heard Sri Ashok Khare,
learned senior counsel, assisted by Sri
Siddharth Khare for the petitioner, learned
Standing Counsel for the respondent No.1
and Sri Ayank Mishra for the respondent
Nos. 2 and 3.

2. By the instant petition, the
petitioner, who claims himself to be the
member of the other backward classes, has
challenged the condition No. 4(C) of
Advertisement
No.03/VSA/2003,
dated
02.09.2013, issued by the Electricity Service
Commission, U.P. Power Corporation Ltd.,
Lucknow whereby applications have been
invited for filling up a large number of posts
of Assistant Engineer (Trainee) in different
branches of Engineering including (Civil
Engineering). As per the advertisement, a
candidate amongst others was required to
possess a Bachelors Degree in Electrical
Engineering/
Electronics
Engineering/
Computer Science Engineering/Information
Technology and Civil Engineering from a
University or institution established by law in
Uttar Pradesh or from any other institution
recognized by the State Government or a
degree recognized as equivalent thereto by
the State Government OR Part A & B
examinations conducted by the Institution
of Engineers (India). (Same branch as
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
Engineering Branch of post being applied
for). Sub-clause (C) of Condition No.4 of
the advertisement provided that General
and OBC candidates having minimum
60% marks and SC/ ST candidates having
minimum 55% marks in aggregate in
Engineering Degree are only eligible to
apply for the above post. It is this
condition which has been challenged in
the instant petition.

3. The learned counsel for the petitioner
submitted that the aforesaid condition is
arbitrary and amounts to changing the
eligibility criteria provided by the service
regulations. It was submitted that recruitment
to the post of Assistant Engineer in the
aforesaid service is governed by U.P. State
Electricity Board Service of Engineers
Regulations, 1970 (hereinafter referred to as
the Service Regulations), which have been
notified on 08.12.1970 by the then U.P. State
Electricity Board, in exercise of power under
Sections 79(C) of the Electricity (Supply) Act,
1948. It was submitted that Regulation 10,
provides for the qualifications, as under:-

"10. Qualification.- A candidate for
direct recruitment as Trainee Engineer
must
besides
having
a
through
knowledge-of Hindi in Devnagri script,
hold the following qualifications-

(i)
a
Degree
in
electrical/mechanical/telecommunication/instrumentation engineering
from a University or Institution established
by law in Uttar Pradesh or from any other
Institution
recognized
by
the
State
Government or a degree or diploma
recognized as equivalent thereto by the State
Government;

or

(ii) Sections 'A' and 'B' of the
Associate Membership of the Institution
of Engineers (India).

or

be an Associate, Member of the
Institution
of
Electrical
Engineers
(London)."

4. It was submitted that Appendix-B of
the Service Regulations, provides for the
procedure for direct recruitment, which
requires holding of a written test followed by
an interview for selection of the candidates. It
was submitted that fixing minimum cut off
marks over and above the minimum
eligibility criteria provided by the Service
Regulations, at the threshold of the
recruitment process, by the Electricity
Service
Commission
for
determining
eligibility to apply for the post is totally
arbitrary and unjustified, particularly, when a
written test is there for entering the second
stage of the examination i.e. the interview. It
was submitted that it is well settled that in the
event of conflict between the statutory
regulations/rules
and
the
terms
and
conditions of the advertisement relating to
eligibility, it would always be the statutory
regulations/rules that would prevail. It has
thus been submitted that the aforesaid
condition in the advertisement is liable to be
quashed and that a direction be issued to the
respondents to issue an advertisement by
way of corrigendum inviting applications
from all those candidates who hold minimum
qualifications as per the Service Regulations.

6. Considering the nature of the
controversy, which does not involve any
factual dispute as well as the fact that the
probable date for the written examinations
was
shown
to
be
on
26.10.2013/
27.10.2013, instead of calling for a
counter affidavit, we required Sri Ayank
Mishra,
learned
counsel
for
the
Corporation as well as the Commission,
to seek instructions in the matter so as to
inform the Court about the legal basis of
3 All] Ashish Kumar Chaurasia Vs. State of U.P. and Ors.
1509
such a condition put by the Electricity
Service Commission at the threshold of
the recruitment process.

7. Sri Ayank Mishra, did not dispute
the
minimum
eligibility
conditions
provided by Regulation 10 of the Service
Regulations, which we have noticed
herein above, but, on 25.09.2013, when
the matter was taken up, Sri Ayank
Mishra produced before us Electricity
Service
Commission,
U.P.
State
Electricity Board (Procedure and Conduct
of
Business)
Regulations,
1978
(hereinafter referred to as the Business
Regulations), notified in exercise of
power under Clause (c) of Section 79 of
the Electricity (Supply) Act, 1948, which
governs the procedure and conduct of
business
of
the
Electricity
Service
Commission, U.P. State Electricity Board,
so as to contend that under the residuary
powers provided by Regulation 70 of the
Business Regulations, the Commission
could have taken such a decision. Sri
Mishra, however, could not produce
before us any specific provision in either
the Service Regulations or the Business
Regulations where under the Electricity
Service Commission had the power of
prescribing minimum cut off marks in the
qualifying examination as an eligibility
criterion to participate in the recruitment
process. Regulation 70 of the Business
Regulations on which Sri Mishra placed
reliance to justify the action of the
Commission, provides as follows:-

"Commission may deal in such
manner as they deem fit with any matter
not specifically provided for in these
Regulations."

8. We were also taken through the
various
provisions
of
the
Business
Regulations. Regulations 30, 31 and 74 of
the Business Regulations appeared to be
relevant for the controversy in issue,
which we are reproducing herein below:-

"30. Examinations and conduct of
Examination-

(i) The Commission shall conduct
examinations for the various posts to be
filled by competitive examinations.

(ii)The examination may be held at
one or more centres at any place or places
in Uttar Pradesh as the Commission may
decide. The Commission shall appoint an
incharge for each centre who shall be
responsible for conduct of examination at
his centre.

(iii)The
Commission
may
hold
combined competitive examinations for
selection to various posts under the
purview of the Commission.

31. The Commission shall advertise
the vacancies for which selections are to
be made in the manner and through the
medium/media prescribed by them, and
invite
applications
from
eligible
candidates.

74. Where selection is based on
written examination and interview the
Commission shall call candidates for
interview on the basis of merit as
disclosed
at
the
written
test.
The
Commission shall decide the number of
candidates to be called for interview,
subject to the condition that if the number
of candidates who pass the examination is
less than double the number of vacancies,
all the candidates shall be called for
interview."

9. A perusal of Regulation 31 of the
Business Regulations would go to show
that the Commission is required to
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
advertise the vacancies for which selections
are to be made in the manner and through
medium/media prescribed by them and invite
applications
from
eligible
candidates.
Regulation 30 provides for the manner in
which the examinations are to be conducted
by the Commission as also that the
Commission
may
hold
combined
competitive examination for selection to
various posts under the purview of the
Commission. Regulation 74 reveals that
where selection is based on written
examination and interview, the Commission
shall call the candidates for interview on the
basis of merit as disclosed on the written test
and that it is for the Commission to decide
the number of candidates to be called for
interview, subject to the condition that if the
number of candidates who pass the
examination is less than double the number
of vacancies all the candidates shall be called
for interview.

10. Thus, from the Business
Regulations it does not appear that at the
threshold of the recruitment process, the
Commission can prescribe for a condition,
higher than the prescribed eligibility, for
being
eligible to
apply
under
the
advertisement.

11. No doubt, by various judicial
pronouncements short-listing or screening
has been accepted as a pretext to limit the
number of candidates to be called for
interview. Two methods are generally
adopted for screening and short-listing:
(a) by holding competitive examination
and calling candidates for interview on
the basis of merit in such competitive
examination; and (b) by screening the
applications on the basis of certain
procedure and criteria thereby limiting the
number of candidates to be called for
interview.

12. In State of Punjab and others Vs.
Manjit Singh and others: (2003) 11 SCC 559
the Apex Court took the view that the
Commission cannot lay down the cut off
marks so as to exclude the candidate
fulfilling the minimum qualification as per
the relevant rules at the threshold itself as the
same would amount to altering the minimum
qualification as laid down in the relevant
rules for which the Commission had no
power. The relevant observations of the
Apex Court are found in paragraph nos.7, 8,
10 and 11 of the report, which are
reproduced herein below:-

"7. Now adverting to the point under
consideration, it may be observed that so far
the powers and functions of the Commission
in shortlisting of candidates is concerned,
there can certainly be no doubt about it. Say
for example 10,000 candidates apply for
recruitment to 100 posts, it would obviously
not be possible to take full test /examination
and interview of such large number of
applicants, though eligible. In that event
shortlisting of the candidates by screening out
those, in respect of whom it would serve no
purpose to call them for further test, may be
excluded by adopting the method of screening
test. Generally speaking a ratio of 3-5
candidates for one post is normally accepted
depending upon the number of seats.
Therefore, for 100 posts the selecting body
may in order of merit take out about first 500
candidates for further tests/interview. The rest
of the candidates would be screened out. No
candidate excluded by adopting such a
method for shortlisting can raise any
grievance whatsoever.

8. But for such shortlisting as
indicated above, it is not necessary to fix
any minimum qualifying marks. Any
candidate on the top of the list at number
1 down upto 500 would obviously constitute
3 All] Ashish Kumar Chaurasia Vs. State of U.P. and Ors.
1511
the shortlisted zone of consideration for
selection. For the purpose of elaboration it may
be observed that in case some cut-off marks is
fixed in the name of shortlisting of the
candidates and the number of candidates
obtaining such minimum marks, suppose is
less than 100 in that event screening test itself
will amount to a selection by excluding those
who
though
possess
the
prescribed
qualification and are eligible for consideration
but they would be out of the field of
consideration by reason of not crossing the cutoff marks as may be fixed by the recruiting
body. This would not be a case of shortlisting.
In shortlisting, as observed above, any number
of candidates required in certain proportion of
the number of vacancies, they may be
shortlisted in order of merit from serial no. 1
upto the number of candidates required.

10. As observed earlier, for the
purpose of shortlisting it would not at all be
necessary to provide cut-off marks. Any
number of given candidates could be taken
out from the top of the list upto the number
of the candidates required in order of merit.
For example, there may be a situation where
more than required number of candidates
may obtain marks above the cutoff marks
say for example out of 10,000 if 8,000 or
6,000 candidates obtain 45% marks then all
of them may have to be called for further
tests and interview etc. It would in that
event not serve the purpose of shortlisting
by this method to obtain the given ratio of
candidates, and the vacancy available. For
100 vacancies at the most 500 candidates
need be called. If that is so any candidate
who is otherwise eligible upto the 500th
position whatever be the percentage above
or below the fixed percentage would be
eligible to be called for further tests. Thus
the purpose of shortlisting would be
achieved without prescribing any minimum
cut-off marks.

11. In the case in hand, it was not for
the Commission to have fixed any cut- off
marks in respect of reserved category
candidates. The result has evidently been that
candidates otherwise qualified for interview
stand rejected on the basis of merit say, they
do not have the upto the mark merit, as
prescribed by the Commission. The selection
was by interview of the eligible candidates. It
is
certainly
the
responsibility
of
the
Commission to make the selection of efficient
people amongst those who are eligible for
consideration. The unsuitable candidates
could well be rejected in the selection by
interview. It is not the question of
subservience but there are certain matters of
policies, on which the decision is to be taken
by the Government. The Commission derives
its powers under Article 320 of the
Constitution as well as its limits too.
Independent and fair working of the
Commission is of utmost importance. It is also
not supposed to function under any pressure
of the government, as submitted on behalf of
the appellant Commission. But at the same
time it has to conform to the provisions of the
law and has also to abide by the rules and
regulations on the subject and to take into
account the policy decisions which are within
the domain of the State Government. It cannot
impose its own policy decision in a matter
beyond its purview."

12. A Full Bench of this Court in
Gaurav Tripathi Vs. State of U.P. and
others: 2010 (78) ALR 525, after
considering
various
judgments,
summarized the law with regards to
screening and short-listing applicants
/candidates to be called for interview. The
relevant paragraph of the Full Bench
judgment is being quoted herein below:-

"114. We may summarize the
principles in regard to the question of
screening and short-listing the applicants
1512 INDIAN LAW REPORTS ALLAHABAD SERIES
by laying down the procedure and the
criteria in order to restrict the number of
candidates to be called for interview:

(1) (a) Even if it is not provided for
in the Rules/Advertisement etc., the
Selection Body may resort to screening
and short-listing in order to restrict the
number of candidates to be called for
interview.

(b) For this purpose, the Selection
Body may lay down the procedure and the
criteria.

(c) The procedure and the criteria for
screening and short-listing must be
rational and reasonable.

(d) In case, the relevant rules
prescribe minimum qualifications for
recruitment, the criteria for short-listing
must be based on such minimum
qualifications.
Thus,
if
minimum
qualifications
contemplate
"academic
qualification", the criteria may prescribe
higher academic qualifications for shortlisting.
Similarly,
if
minimum
qualifications contemplate "experience"
then the criteria may provide for higher
experience for short-listing.

(e) "Experience" is an objective,
reasonable and rational criterion. But if
minimum qualifications do not require
"experience" then this may not be a
criterion for screening and short-listing.

(f) The candidates who fulfill the
minimum qualifications, cannot be excluded at
the threshold by changing the minimum
qualifications or providing for cut-off marks.
However, it is open to the Selection Body to
provide certain marks for higher qualifications -
i.e., for higher academic qualifications where
minimum qualifications provide for academic
qualifications, or for higher experience where
minimum
qualifications
provide
for
experience. It is also open to the Selection
Body to prepare a merit list on the basis of
minimum qualifications, and then call requisite
number of candidates for interview on the basis
of such merit list.

In short, the minimum qualifications
cannot be changed by the Selection Body so
as to exclude the candidates fulfilling such
minimum
qualifications.
However,
for
screening and short-listing, the Selection
Body may provide marks for higher
qualifications, or may prepare merit list on
the basis of such minimum qualifications and
call requisite number of candidates for
interview on the basis of such merit list.

2. If the Rules/Advertisement provide for
screening and short-listing, and lay down the
procedure and the criteria in this regard, then
such procedure and criteria must be strictly
adhered to for screening and short-listing. No
deviation is permissible from such procedure or
criteria."

13. Taking a conspectus of the law
governing the principles to be followed for
screening/short-listing of candidates, it is well
settled that for shortlisting, it is not necessary
to fix any minimum qualifying marks at the
threshold. The candidates who fulfill the
minimum qualifications, cannot be excluded
at the threshold by changing the minimum
qualifications or providing for cut-off marks.
Although it is open to the recruitment body to
prepare merit list on the basis of such
minimum qualifications and call requisite
number of candidates for interview on the
basis of such merit list, but it cannot provide
higher cut off marks to exclude eligible
candidates at the threshold. As provided by
the apex court, vide para 10 of the judgment in
the case of State of Punjab v. Manjit Singh
(supra), for the purpose of shortlisting it would
not at all be necessary to provide cut-off
marks. Any number of given candidates could
be taken out from the top of the list up to the
3 All] Sunil Kumar Sinol Vs. The State of U.P. and Ors.
1513
number of the candidates required in order of
merit. For example, there may be a situation
where more than required number of
candidates may obtain marks above the cutoff
marks say for example out of 10,000 if 8,000
or 6,000 candidates obtain the cut off marks
then all of them may have to be called for
further tests and interview etc. It would in that
event not serve the purpose of shortlisting by
this method to obtain the given ratio of
candidates, and the vacancy available. For
example, for 100 vacancies if, at the most, 500
candidates need be called then any candidate
who is otherwise eligible up to the 500th
position whatever be the percentage above or
below the fixed percentage would be eligible
to be called for further tests. Thus the purpose
of shortlisting would be achieved without
prescribing any minimum cut-off marks.
Further, we may observe that where there is a
written competitive examination, providing
higher cut off marks at the threshold, by
changing the minimum qualifications, to
exclude the candidates, who fulfill the
minimum qualification, from even applying is
not at all justified in absence of a specific
power provided for that purpose under the
Statutory Rules/Regulations. As no statutory
Rule/Regulation has been shown to us and,
particularly, when the advertisement itself
provides for a written test, we do not find any
rational basis to provide for cut off marks of
60% for the General and OBC candidates and
55% marks for SC/ST candidates for being
eligible to apply for undergoing the
recruitment process.

14. For the reasons mentioned
above, the writ petition deserves to be
allowed and is, accordingly, allowed. The
condition No.4 (C) in the Advertisement
No.03/VSA/2013 (Annexure No.2 to the
writ petition) is hereby quashed. The
respondent no.3 is directed to issue and
publish an advertisement by way of
corrigendum
thereby
providing
reasonable time to the eligible candidates
to apply and it will also notify a fresh date
for the written examination thereby giving
all candidates a reasonable opportunity.

15. It is made clear that we have not
adjudicated on the right of the Electricity
Service Commission to adopt a rational
screening/short-listing process after receiving
the applications from all the eligible
candidates, as is permissible in law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 52468 of 2013

Sunil Kumar Sinol
 ...Petitioner
Versus
The State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Respondents:
C.S.C.

U.P. Chikitsa Evam Swasthya Vibhag Dark
Room Sahayak(Arajpatrit) Sewa Niyamawali
1998-Rule-8-Minimum
qualificationintermediate with science-mode of sort
listing-ignoring intermediate candidate-giving
preference
to
graduate
candidate-heldarbitrary-unreasonable-such mode of sort
listing-unknown in service jurisprudencedirection to allowe participation in selection
process-issued-in
accordance
with
observations.

Held: Para-14
The idea of short listing in the present case on
the part of respondents is nothing but a kind
of conferring absolute preference to the
persons possessing higher qualification. Such
preference, which excludes other candidates