# Nagesh Chandra Kesharwani & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1779
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-18
- **Case number:** Writ-A No. 14179 of 2019
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagesh-chandra-kesharwani-ors-v-state-of-u-p-ors-45059
- **Pages:** 19

## Headnote

Eligibility criteria/conditions - Constitution
of India: Article 14, 16, 315, 320, 335; Uttar
Pradesh Government Department Statistical
Service Rules, 2012: Rules 6, 7, 8, 9, 10, 11,
16, 17; Uttar Pradesh
Public Service
Commission (Regulation of Procedure) Act,
1985: Section 11(1); Uttar Pradesh Public
Service
Commission
(Procedure
and
Conduct of Business) Rules, 2011: Rule 29,
33, 51, 73, 74; Uttar Pradesh Direct
Recruitment
through
Public
Service
Commission Preliminary Examination Rules,
1986: Section 2(vi), 2(vii), 2(viii); Uttar
Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994: Section

## Text

_Characters 0–39,921 of 64,268. This is a partial read: ask again with offset=39921 for what follows._

1780 INDIAN LAW REPORTS ALLAHABAD SERIES
Kamla Cheran Hair Vs. State of U.P. 2009
(27) L.C.D. 130)."

55. So far as the judgment passed by
the Hon'ble Apex Court in Yashvir Singh
Gulia (supra), relied upon by the learned
counsel for the petitioner Sri P.K. Sinha is
concerned, we are of the view that the
same is not applicable in the present case
as in the said case the enquiry proceedings
were initiated by issuing charge sheet for
imposing
major
punishment
but
subsequently the competent authority
dispensed with departmental enquiry and
after considering the reply submitted by
the delinquent officer imposed the minor
punishment keeping in view the peculiar
facts of the case, the Hon'ble Apex Court
interfered in the judgment passed by the
District Judge as well as the High Court,
whereas in the present case enquiry
initiated against the petitioner was not
dispensed with and the enquiry officer in
relation to the charge sheet issued for
awarding major punishment conducted the
enquiry and thereafter submitted the
enquiry report and on the basis of the
enquiry report reply was submitted to the
same by the Opposite party no.1 and the
order of punishment was passed.

56. For the foregoing reasons, we are
not inclined to interfere in the judgment
and order dated 24.09.2018 passed by the
Tribunal.

57. Accordingly, the writ petition for
it, is dismissed. No order as to costs.
----------
(2020)1ILR 1779

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2019

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ-A No. 14179 of 2019
Connected With 17 Other Writ-A Cases

Nagesh Chandra Kesharwani & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Seemant Singh

Counsel for the Respondents:
C.S.C., Sri M.N. Singh

A. Service - Appointment/Recruitment -
Eligibility criteria/conditions - Constitution
of India: Article 14, 16, 315, 320, 335; Uttar
Pradesh Government Department Statistical
Service Rules, 2012: Rules 6, 7, 8, 9, 10, 11,
16, 17; Uttar Pradesh
Public Service
Commission (Regulation of Procedure) Act,
1985: Section 11(1); Uttar Pradesh Public
Service
Commission
(Procedure
and
Conduct of Business) Rules, 2011: Rule 29,
33, 51, 73, 74; Uttar Pradesh Direct
Recruitment
through
Public
Service
Commission Preliminary Examination Rules,
1986: Section 2(vi), 2(vii), 2(viii); Uttar
Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994: Section
3.

The question for consideration before the
Court is as to whether the Commission
has any jurisdiction in the applicable
statutory
scheme
to
fix
minimum
marks/criteria at the stage of interview
for adjudging the suitability of the
candidate for appointment to the post in
question. (Para 7)

The Commission, as a constitutional body is
expected to follow a uniform rational
criteria to determine fitness of a candidate
for selection to a public office - The
Commission has a positive obligation in the
constitutional scheme (Art. 335) to ensure that
only a suitable candidate is appointed to the
service of State. The adjudging of suitability
1 All. Nagesh Chandra Kesharwani & Ors. Vs. State of U.P. & Ors.
1781
consistent with maintenance of efficiency of
administration has to be on a rational and
objective criteria. Otherwise, the selection itself
would not withstand the test of judicial scrutiny
and would be open to challenge for violation of
Article 14 and 16. In the absence of contrary
stipulation in the rules, laying of criteria by the
Commission of securing 40% minimum marks at
written test and interview would, therefore,
clearly be justified. (Para 19, 28, 30, 31, 32 & 40)

B. The decision of the Commission is
otherwise not an independent decision
but is based upon the direction of the
State Government - In the light of GO dated
30th September, 1966, Commission took a
decision on 24th December, 1966 to fix
minimum standard of fitness consistent with
maintenance of efficiency of administration, to
be maintained for all candidates including
reserved category candidates. This decision has
otherwise been consistently followed for the
last more than 50 years. The executive
instructions of the State as also the fixing of
minimum marks by the Commission, therefore,
would clearly be just and legal. (Para 18, 20,
21, 32 & 40)

C. Suitability and eligibility are otherwise
not interchangeable words. The mere fact
that a candidate is eligible would not lead
to an inference that such candidate is
also suitable for appointment even if he
has passed the screening test - In Rules of
2012, no criteria for adjudging suitability is
provided and that the preliminary/screening
examination is not for the purposes of
adjudging
suitability
of
a
candidate
for
appointment but merely to screen out large
number of applicants. It is equally settled that
State can issue administrative instructions in
the absence of any contrary provision in the
statutory rules. The Commission's power to fix
minimum marks for adjudging suitability of a
candidate at the stage of interview could
otherwise be sustained with reference to Rule
73 of the Rules of 2011 as the matter is not
specifically provided for in the Rules of 2011 or
the Service Rules of 2012. (Para 28, 33 & 41)

Writ Petitions dismissed. (E-4)

Precedent followed: -
1. Shrawan Kumar and 5 others Vs. Uttar
Pradesh Public Service Commission, WP No.
13091 of 2019 (Para 3 & 4)

2. Dr. Ram Sukh Yadav Vs. State of U.P. and
others, (1997) 1 UPLBEC 416 (Para 24)

3. Ram Shankar Roy and others Vs. State of U.P.
and others, (2000) 3 UPLBEC 2289 (Para 24)

4. U.P. Public Service Commission Vs. Sangeeta &
81 others, 2019 (4) ADJ 650 (Para 24, 25 & 38)

5. Ashok Kumar Nayak Vs. State of U.P. and
another, 2004 (1) AWC 129 (Para 24)

6. K. Manjusree Vs. State of U.P. and another,
(2008) 3 SCC 512 (Para 24 & 35)

Precedent distinguished: -

1. Durgacharan Misra Vs. State of Orissa and
others, (1987) 4 SCC 646 (Para 22, 34 & 38)

2. Dr. Krushna Chandra Sahu and others Vs.
State of Orissa and others, AIR 1996 SC 352
(Para 22, 36 & 37)

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Petitioners, in this bunch of writ
petitions, are aggrieved by their non-selection
for appointment to the post of Assistant
Statistical Officer as they have failed to secure
minimum marks in the interview. The
jurisdiction of Public Service Commission to
fix minimum marks for qualifying interview is
primarily questioned in all the writ petitions.
All the petitions have been heard together and
are being decided by this common judgment.
Writ Petition No.14179 of 2019 (Nagesh
Chandra Kesharwani and 26 Others Vs. State
of U.P. and 11 Others) is taken as the lead
case.

2. Uttar Pradesh Public Service
Commission (hereinafter referred to as
''the Commission') issued advertisement
No.4 of 2014-15 dated 17th March, 2015
1782 INDIAN LAW REPORTS ALLAHABAD SERIES
initiating recruitment to large number of
vacancies occurring in different departments
of the State of Uttar Pradesh. Controversy in
this bunch of petitions, however, is confined
to 373 posts of Assistant Statistical Officer
(general recruitment) in Economic and
Statistic Division, State Planning Institution
U.P. A total number of 7291 applications
were received by the Commission against
373 advertised posts of Assistant Statistical
Officer. The recruitment exercise consisted
of a screening test followed by interview.
1261 candidates could qualify screening test
and were accordingly called for interview.
Out of those 1261 candidates only 1133
candidates could submit their educational
and other eligibility documents to the
Commission. A committee was constituted
to examine eligibility of candidates who had
cleared screening test. The committee found
that only 340 candidates were eligible for
being
called
to
face
interview.
302
candidates out of those 340 actually
appeared to face interview.

3. The determination of eligibility by
the Committee constituted for the purpose
came to be questioned before this Court in
Writ Petition No.13091 of 2019 (Shrawan
Kumar And 5 Others Vs. Uttar Pradesh
Public Service Commission). This Court
while dismissing the writ petitions vide
judgment dated 21.8.2019 clarified that
eligibility of the candidate would have to
be restricted to the recruitment rules and
the advertisement. The Commission also
undertook to scrupulously comply with the
provisions of the applicable rules and the
advertisement
while
determining
eligibility of candidates. Para 13 and 14 of
the judgment in Shrawan Kumar (supra) is
relevant and is reproduced hereinafter:-

"13. The thrust of the submission
on behalf of the petitioners is that the
process of scrutinising the application was
undertaken on the basis of the three
member committee report and that persons
who do not qualify in terms of second
essential qualification or are otherwise not
eligible in view of the stand taken by the
Commission have infact been allowed to
participate. This contention raised on
behalf of the petitioners need not cause
any difficulty inasmuch as having taken a
categorical stand before this Court that the
Commission shall restrict consideration to
candidature of those persons who have
either obtained 'O' level diploma in
computer awarded by the DOEACC
Society or atleast one year diploma in
Computer Science from any recognised
University/ Institution established by law,
the consideration would have to be limited
to that category of applicants alone. The
Commission is expected to scrutinise this
aspect and to ensure that only such
candidates are allowed to take part in the
interview
who
possess
requisite
qualification in accordance with the
advertisement and the applicable service
Rules
of
2012.
The
apprehension
expressed on behalf of the petitioners,
therefore,
would
not
justify
any
interference by this Court in exercise of
writ jurisdiction.
14. In view of the discussions made above
and in light of the stand taken by the
Commission, as also the statement of their
senior counsel that Commission shall
scrupulously comply with it, this writ
petition is consigned to records."

4. The Commission, accordingly,
revisited the issue of eligibility in light of
the observations made by this Court in the
case of Shrawan Kumar (supra). Upon a
careful
examination
the
Commission
found only 198 candidates to be eligible
for
appointment.
The
Commission
1 All. Nagesh Chandra Kesharwani & Ors. Vs. State of U.P. & Ors.
1783
accordingly subjected only 198 eligible
candidates to face interview. Only 142 out
of those 198 eligible candidates were
found suitable by the Commission for
appointment.
The
suitability
for
appointment has been judged on the basis
of 40% minimum marks secured at the
interview
for
unreserved
and
OBC
candidates,
while
35%
marks
for
Scheduled
Castes/Scheduled
Tribes
candidates. Selection has been made of
142 suitable candidates alone. Petitioners
are essentially aggrieved by this decision
of the Commission. According to petitioners
all candidates who have qualified the screening
test and are found eligible are liable to be
selected, inasmuch as the Commission lacks
any power/jurisdiction to fix minimum marks
in interview for adjudging suitability of
candidate concerned. According to petitioners
the applicable service rules do not confer any
jurisdiction upon the Commission to fix
minimum marks at the interview for adjudging
suitability of candidate for selection to the post
in question.

5. Petitioners' contention in that
regard is countered by the State, as also
the Commission, by relying upon Article
320 and 335 of the Constitution of India as
also the applicable service rules, and the
procedure
rules
that
regulates
the
functioning
of
the
Commission.
Submission is that suitability of a
candidate for selection to the post is
required
to
be
determined
by
the
Commission and power to fix the
minimum norms for the purpose is clearly
implicit in the applicable scheme for
recruitment.
Various
provisions
and
Government Orders in that regard have
been relied upon, which shall be dealt
with, later. It is in this context that the
issue arises for consideration before this
Court.

6. I have heard Sri Ashok Khare,
learned Senior Counsel assisted by Sri
Aishwarya Pratap Singh and Sri Seemant
Singh for the petitioners; Sri G.K. Singh,
learned Senior Counsel assisted by Sri
F.A. Ansari for the Commission, and Dr.
A.N. Singh, learned Standing Counsel for
the State, and have perused the materials
brought on record.

7. The short question that arises for
consideration, in the facts of the present
case, is as to whether the Commission has
any jurisdiction in the applicable statutory
scheme to fix minimum marks/criteria at
the stage of interview for adjudging
suitability
of
the
candidate
for
appointment to the post in question?

8. Before proceeding any further it
would be relevant to notice the scheme for
recruitment
to
the
post
in
question.
Appointment to the post of Assistant Statistical
Officer is an appointment to an office under
the State and would have to be in consonance
with Article 16 of the Constitution of India,
which provides for equality of opportunity in
matters
of
public
employment.
The
recruitment to the post in question is regulated
by the provisions of the Uttar Pradesh
Government Department Statistical Service
Rules, 2012 (hereinafter referred to as ''the
Rules of 2012'). The post in question forms
part of the cadre of service specified in Rule 6
of the Rules of 2012. Rule 7 provides that
appointment to various category of posts in the
service shall be made in the manner specified.
Rule 7(1) of the Rules of 2012, in that regard,
is reproduced hereinafter:-

"7."Recruitment to the various
categories of posts in the service shall be
made from the following sources:

(1)
Assistant
Statistical
Officer/Assistant
Research
Officer
1784 INDIAN LAW REPORTS ALLAHABAD SERIES
(Statistics) - By direct recruitment through
the Commission."

9. Rule 8 of the Rules of 2012
provides for reservation to the specified
category of candidates and is reproduced
hereinafter:-

"8. Reservation for the candidates
belonging to the Scheduled Castes, Scheduled
Tribes and other categories shall be in
accordance with the Act, and the Uttar Pradesh
Public Services (Reservation For Physically
Handicapped,
Dependents
of
Freedom
Fighters and Ex-Servicemen) Act, 1993, as
amended from time to time, and the orders of
the Government in force at the time of the
recruitment."

10. Qualification of the candidate for
direct recruitment is specified in Rule 9 of
the Rules of 2012. Age of candidate is
specified in Rule 10, while academic
qualification for direct recruitment is
specified in Rule 11 thereof, which is
reproduced hereinafter:-

"11. A candidate for direct
recruitment to the various posts in the
service
must
possess
the
following
qualifications:-

(i)
Post-graduate
degree
in
Assistant Research Office Mathematics or
Mathematical Statistics or Commerce or
Economics or Statistics from a University
established
by
law
in
India
or
a
qualification
recognised
by
the
Government as equivalent thereto.

(ii)
'O'
level
Diploma
in
Computer awarded by DOEACC Society
or at least one year Diploma in Computer
Science from any recognised University/
Institution.

(iii) Knowledge of Hindi in
Devnagri Script.

2. (i) Post-graduate degree in
Mathematics or Mathematical Statistics Or
Commerce or Economics or Statistics with
at least fifty five percent marks from a
University established by law in India or a
qualification
recognized
by
the
Government as equivalent thereto. Or

Two
years
Post-graduate
diploma in Statistics from an Institute
recognized by the Government.

(ii) Knowledge of Hindi in
Devnagri Script."

11. Procedure for recruitment is
contained in Part-V of the Rules of 2012.
Rules 16 provides for determination of
vacancies while Rule 17 regulates the
procedure for direct recruitment. Rule 16
and 17 of the Rules of 2012 are also
relevant and are reproduced hereinafter:-

"16. The appointing authority
shall determine the number of vacancies to
be filled during the course of the year of
recruitment as also the number of
vacancies to be reserved for candidates
belonging to Scheduled Castes, Scheduled
Tribes and other categories under rule 8.
The vacancies to be filled through the
Commission shall be intimated to them.

17.(1) Application for being
considered for selection shall be called by
the Commission in the form published in
the
advertisement
issued
by
the
Commission.

(2)
The
Commission
shall,
having regard to the need for securing due
representation of the candidates belonging
to the Scheduled Castes, Scheduled Tribes
and other categories in accordance with
rule 8, call for interview such number of
candidates,
who
fulfil
the
requisite
qualifications, as they consider proper.

(3)
The
Commission
shall
prepare a list of candidates in order of their
1 All. Nagesh Chandra Kesharwani & Ors. Vs. State of U.P. & Ors.
1785
proficiency as disclosed by the marks
obtained by each candidate in the
interview. If two or more candidates
obtain equal marks, the names of the
candidates shall be arranged in accordance
with
the
general
policy
of
the
Commission.
The
Commission
shall
forward
the
list
to
the
appointing
authority."

12. By virtue of Rule 17(1) of the
Rules of 2012, the recruitment to the post
in question has to be made by direct
recruitment through the Commission. The
Commission is established under Article
315 of the Constitution of India. Its
functions are specified in Article 320 of
the Constitution of India. Clause (1) of
Article 320, as also Sub-clause (b) of
Clause (3) of Article 320 of the
Constitution of India, are relevant for the
present
purposes,
and
are
therefore
reproduced hereinafter:-

"320.(1) It shall be the duty of
the Union and the State Public Service
Commissions to conduct examinations for
appointments to the services of the Union
and the services of the State respectively.

320.(3)
The
Union
Public
Service Commission or the State Public
Service Commission, as the case may be,
shall be consulted--

(b) on the principles to be
followed in making appointments to civil
services
and
posts
and
in
making
promotions and transfers from one service
to another and on the suitability of
candidates
for
such
appointments,
promotions or transfers;"

13. The State Legislature has enacted
the
Uttar
Pradesh
Public
Service
Commission (Regulation of Procedure)
Act, 1985 (hereinafter referred to as ''the
Act of 1985') to regulate the procedure of
the Commission in discharge of its
functions. In exercise of powers under
Section 11(1) of the Act of 1985, statutory
rules have been framed, known as The
Uttar Pradesh Public Service Commission
(Procedure & Conduct of Business) Rules,
2011 (hereinafter referred to as ''the Rules
of 2011'). Rule 29 thereof regulates
conduct of examination in cases where
direct selection is through interview only.
If the proportion of candidates applying to
the number of posts is high, the
Commission
may,
after
examining
relevant
aspects,
decide
to
hold
preliminary examination/screening test of
the candidates. Rule 29(iii) of the Rules of
2011 is extracted hereinafter:-

"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."

14. Rule 33 of the Rules of 2011
regulates
conduct
of
preliminary
examination in the manner prescribed by
the Uttar Pradesh Direct Recruitment
through
Public
Service
Commission
Preliminary Examination Rule, 1986, as
amended from time to time. Rule 33 of the
Rules of 2011 throws light on the purpose
of holding preliminary examination and is
reproduced hereinafter:-

"33.(i) Notwithstanding anything
to the contrary contained in relevant
service rules or Government Orders
regarding recruitment, the Commission
may
hold
preliminary
examination/screening test for finding out
1786 INDIAN LAW REPORTS ALLAHABAD SERIES
suitable candidates for admission to main
examination or interview, as the case may
be;

(ii)
Preliminary
examination
shall mean screening test to be conducted
by the Commission with the purpose of
finding out suitable candidates in required
proportion as fixed by the Commission in
each category, reserved and unreserved,
for admission to the main examination or
interview, as the case may be;

(iii)
Preliminary
examination
shall
be
conducted
in
the
manner
prescribed by the Uttar Pradesh Direct
Recruitment
through
Public
Service
Commission
Preliminary
Examination
Rule, 1986 as amended from time to time.
The marks obtained by the candidates in
the preliminary examination/screening test
shall not be counted for determining final
order of merit.

(iv) The Commission shall fix
the place, dates and time of examination
which
includes
preliminary
examination/screening
test
and
main
examination, as the case may be.

(v) The centres of examination
shall be fixed with prior approval of the
Chairman/Examination Committee.

(vi) All arrangements for such
examinations shall be made by the
Controller of Examination in consultation
with the Secretary and in accordance with
such directions as may be issued by the
Commission in that behalf."

15. Rule 51 of the Rules of 2011
contemplates
selection
by
direct
recruitment
and
is
also
reproduced
hereinafter:-

"51.
The
advertisement
for
selection to various posts by direct
recruitment shall be issued and application
form from eligible candidates be invited
by the Commission in accordance with the
requisition received in that behalf as per
provisions of service rules or adhoc
principles agreed by the Commission
where there are no service rules."

16. Rule 73 of the Rules of 2011
deals with residuary matters while Rule 74
thereof provides for procedure to resolve
doubts that may arise in interpretation of
rules. Rule 73 and 74 of the Rules of 2011
reads as under:-

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

74. If any doubt arises as to the
interpretation
of
these
rule,
the
interpretation made by the Commission
shall be final."

17. The Uttar Pradesh Direct
Recruitment
through
Public
Service
Commission
Preliminary
Examination
Rules, 1986, referred to in Rule 33 of the
Rules
of
2011,
defines
preliminary
examination in Section 2(vi), which is
reproduced hereinafter:-

"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;"

Section 2(vii) of the Rules of 1986
defines direct recruitment while Section
2(viii) defines suitable candidates and the
same are reproduced hereinafter:-

"2.(vii)
"Direct
Recruitment"
means recruitment directly made through
the Commission either by competitive
1 All. Nagesh Chandra Kesharwani & Ors. Vs. State of U.P. & Ors.
1787
examination or by selection other than by
Competitive Examination as may be
prescribed
in
Service
Rules
and
Government orders;

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;"

18. It is not in issue that no written test
has been held and after the candidates have
been screened in the preliminary test, their
suitability for appointment has been adjudged
in the Interview. The Commission in order to
justify the allocation of minimum marks for
adjudging suitability of a candidate for
appointment to the post in question has
referred to a communication issued by the
State Government on 30th September, 1966,
which is extracted hereinafter:-

"I am directed to say that in this
Department circular G.O. no.O-3140/II-B26-1949, dated October 29, 1949, on the
subject noted above, it was indicated that a
lower standard of test should be applied in
the selection of candidates of Scheduled
Castes and even if it was found that the
candidates belonging to the Scheduled
Castes with the minimum qualifications
were below others in merit, they should, to
the extent of their quota, be selected for
appointment. These orders were reiterated
in subsequent G.O. no.13SC/II-B-311-64,
dated March 10, 1964. Further, in G.O.
no.556-SC/II-B-467-1964, dated February
15, 1966, it was provided that in all
recruitments, whether by competitive
examination or selection, a minimum
standard of fitness consistent with the
maintenance
of
efficiency
of
administration, should be fixed for the
candidates of the Scheduled Castes, and if
such a candidate comes up to that
standard, he should be selected for
appointment irrespective of the marks
obtained by the last general candidate so
selected.

2. The question whether the
aforesaid orders infringed the constitutional
guarantee relating to equality of opportunity in
matters of public employment came up for
consideration recently, and Government have
been advised that the minimum standard of
fitness consistent with the maintenance of
efficiency of administration should be the
same for all candidates and that it cannot be
different for Scheduled Castes as compared to
other candidates. Therefore, in suppression of
the orders contained in the three G.Os. cited
above, it has been decided that with a view to
enabling the Scheduled Castes to secure their
due quota in services, a minimum standard of
fitness consistent with the maintenance of
efficiency in administration should be laid
down for all candidates and subject to the said
minimum standard of fitness, the selection of
candidates belonging to Scheduled Castes
should be made separately to the extent of the
seats reserved for them, even though their
absolute performance may be inferior to that of
the last general candidate selected against the
non-reserved seats.

3. These orders may please be
brought to the notice of all concerned for
their information and guidance."

19. The requirement to fix minimum
standard of fitness consistent with the
maintenance
of
efficiency
of
administration appears to have arisen on
account of a specific provision contained
in Article 335 of the Constitution of India,
which is reproduced hereinafter:-

"335. The claims of the members
of the Scheduled Castes and the Scheduled
1788 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribes shall be taken into consideration,
consistently with the maintenance of
efficiency of administration, in the making
of appointments to services and posts in
connection with the affairs of the Union or
of a State:

Provided that nothing in this
article shall prevent in making of any
provision in favour of the members of the
Scheduled Castes and the Scheduled
Tribes for relaxation in qualifying marks
in any examination or lowering the
standards of evaluation, for reservation in
matters of promotion to any class or
classes of services or posts in connection
with the affairs of the Union or of a State."

20. In light of the aforesaid
communication of the State, a decision has
been taken by the Commission on 24th
December, 1966 to fix minimum standard
of fitness consistent with maintenance of
efficiency
of
administration
for
a
candidate for appointment, which is
reproduced hereinafter:-

"Extracts of the order from file
no.281/47-48 of communal representation
in Service- Govt. orders regarding.

DISCUSSED on Dec. 23.

The Commission agreed to the
observations of the Government that a
minimum standard of efficiency must be
insisted upon from the Scheduled Caste
candidates, which minimum standard
should not be different for the general
candidates. The Commission, therefore,
decided to adopt this principle for future
recruitment. The Commission also decided
that the minimum limit may be different
for different posts and that generally
speaking it should not be less than 40% of
marks that may be secured in the
aggregate of marks secured at the
interview and/or in written papers."

Undisputedly, the aforesaid decision
of the Commission is being consistently
followed in all subsequent selections for
the unreserved and OBC candidates.

21. By a subsequent decision the
Commission has modified the minimum
standard of efficiency for the Scheduled Castes
candidates by lowering it to 30%. The decision
in that regard has again been revised and the
minimum standard for efficiency in respect of
Scheduled Castes and Scheduled Tribes
candidates has been revised to 35% vide
decision of the Secretary dated 25th July,
2019. It is on this yardstick that 142 candidates
have been adjudged suitable for appointment
by the Commission.

22. Sri Ashok Khare, learned Senior
Counsel for the petitioners submits that
Recruitment Rules of 2012, as also the
Procedure & Conduct of Business Rules of
2011, do not vest jurisdiction in the
Commission to fix minimum marks at the
stage of interview for a candidate to be
selected for appointment. Sri Khare has
placed reliance upon a judgment of the
Apex Court in the case of Durgacharan
Misra Vs. State of Orissa and others,
(1987) 4 SCC 646, to submit that in the
absence of express power conferred in the
rules the Commission cannot fix any
minimum
marks
to
be
secured
at
interview. Reliance is also placed upon a
judgment of the Apex Court in Dr.
Krushna Chandra Sahu and others Vs.
State of Orissa and others, AIR 1996 SC
352. With reference to para 35 to 38, it is
firmly contended that the Commission at
its own level was denuded of any
jurisdiction to lay down standards for
adjudging suitability when the rules
framed under proviso to Article 309 of the
Constitution of India do not contemplate
so.
1 All. Nagesh Chandra Kesharwani & Ors. Vs. State of U.P. & Ors.
1789

23.
Sri
Seemant
Singh,
also
appearing
for
the
petitioners,
while
adopting the argument of Sri Khare further
submits that once suitability of a candidate
has been examined in the preliminary
examination it was not open thereafter for
the Commission to lay down criteria of
minimum marks at the stage of interview.
It is urged that suitability of a candidate
for
appointment
had
already
been
examined by the Commission in the
preliminary examination, and that in the
absence of any specific power the
Commission could only determine the
inter-se merit of candidates for recruitment
to the post in question, by virtue of Rule
17(3) of the Rules of 2012. Sri Singh,
therefore, submits that all candidates, who
are adjudged suitable at the screening test
are liable to be included in the select list,
after it was found that they do possess
requisite eligibility. Submission is that
elimination of candidates, at the stage of
interview,
is
wholly
arbitrary
and
unsustainable.

24. Submission advanced on behalf
of petitioners is countered by Sri G.K.
Singh, learned Senior Counsel assisted by
Sri F.A. Ansari for the Commission.
Reliance is placed by Sri Singh upon
Division Bench judgments of this Court in
the case of Dr. Ram Sukh Yadav Vs. State
of U.P. and others, (1997) 1 UPLBEC 416;
Ram Shanker Roy and others Vs. State of
U.P. and others, (2000) 3 UPLBEC 2289,
and U.P. Public Service Commission Vs.
Sangeeta & 81 Others, 2019 (4) ADJ 650.
It is stated that fixing of qualifying marks
as 40% for General and OBC candidates
has been specifically affirmed in the
abovenoted
three
Division
Bench
judgments. Reliance is also placed upon a
judgment of this Court in the case of
Ashok Kumar Nayak Vs. State of U.P. and
Another, 2004(1) AWC 129. Learned
Senior Counsel has also referred to the
judgment of Apex Court in K. Manjusree
Vs. State of U.P. and Another, (2008) 3
SCC 512.

25. Learned Senior Counsel for the
Commission submits that the Division
Bench of this Court in U.P. Public Service
Commission Vs. Sangeeta & 81 Others
(supra) has specifically endorsed the fixing
of cut off marks by the Commission to
determine fitness of a candidate for
selection, which stands affirmed by the
Apex Court with dismissal of Special
Leave Petition (Civil) Diary No.17510 of
2019 (Sangeeta and others Vs. U.P. Public
Service Commission).

26. In reply to the aforesaid
argument, Sri Ashok Khare, learned
Senior Counsel submits that the service
rules framed under proviso to Article 309
of the Constitution of India were distinct
before the Division Bench in U.P. Public
Service Commission Vs. Sangeeta & 81
Others (supra). Emphasis is laid upon Rule
15(4) of the Uttar Pradesh Subordinate
Nursing (Non-Gazetted) Service (Fourth
Amendment) Rules, 2016 (hereinafter
referred to as ''the Rules of 2016') to
submit that only those candidates could be
recommended for appointment, who were
found fit for appointment, while in the
applicable rules in the present case no such
power is vested with the Commission.

27. Direct recruitment to the post of
Assistant Statistical Officer is to be made
through the Commission. The Commission
is a body established under Article 315 of
the Constitution of India. Its functions are
specified in Article 320. Sub-Article 1 of
Article 320 casts a duty upon the Union
and the State Public Service Commission
1790 INDIAN LAW REPORTS ALLAHABAD SERIES
to conduct examinations for appointment
to the services of the Union and the
services of State, respectively. Sub-Article
(b) of Article 320(3) provides that the
Commission shall be consulted on the
principles to be followed in making
appointment to civil post and on the
suitability
of
candidate
for
such
appointment
etc.
The
Commission,
therefore, is required to be consulted on
the
suitability
of
candidate
for
appointment to the post in question. The
selection by direct recruitment in the
present case is by the Commission itself.
The judging of a candidate's suitability for
appointment to a post has to be on some
rational and objective criteria. The Service
Rules of 2012 only provides that direct
appointment is to be made through the
Commission. What would, however, be
the yardstick to judge suitability of a
candidate for appointment is not specified
in the applicable service rules. Sub-rule 3
of Rule 17 of the Rules of 2012 mandates
the Commission to prepare a list of
candidates in order of their proficiency, as
disclosed by the marks obtained by each
candidate in interview. It also provides
that where two or more candidates obtain
equal marks the name of candidates shall
be arranged in accordance with the general
policy
of
the
Commission.
The
criteria/yardstick to adjudge suitability of a
candidate for selection is clearly missing
in the applicable service rules.

28.

The
Commission,
as
a
constitutional body is expected to follow a
uniform rational criteria to determine
fitness of a candidate for selection to a
public office. Prior to interview, no written
test is contemplated in the Service Rules
of 2012. Only a screening test is
contemplated for screening out candidates
for interview since large number of
candidates have applied otherwise and
only thrice the number could be called for
interview. The object of screening test is
merely to screen out large number of
applicants and the suitability at that stage
is examined only for admitting the
candidates
for
the
main
written
examination or the interview, as the case
may be. The Act of 1986, as also the
Conduct of Procedure Rules of 2011
makes it explicit that marks obtained in the
screening test would not be added for
determining
the
merit
of
candidate
concerned. This clearly conveys that
suitability for appointment to the post in
question is not determined at the stage of
preliminary/screening examination.

29. In case petitioners' contention is
accepted that all eligible persons are liable
to be selected for appointment who have
cleared the screening test and have
appeared in interview, since purpose of
interview is only to determine the inter-se
merit of candidates, then the primary
responsibility cast upon the Commission
to examine suitability of a candidate for
appointment to the public office would not
be discharged.

30. The suitability of a candidate for
appointment has to be examined in respect
of all category of candidates including
those
belonging
to
Scheduled
Castes/Scheduled Tribes. Article 335 of
the Constitution of India would come into
play, as per which claim for appointment
to a public office of a Scheduled
Caste/Scheduled
Tribe
candidate
is
required to be examined consistently with
the
maintenance
of
efficiency
of
administration. The constitutional mandate
contained
in
Article
335
can
be
accomplished only when the Commission
fixes a uniform criteria consistent with the
1 All. Nagesh Chandra Kesharwani & Ors. Vs. State of U.P. & Ors.
1791
maintenance
of
efficiency
of
administration and subjects the candidate
to it for ascertaining their suitability. It
transpires that fixing of minimum marks
for qualifying written test/interview for the
purpose of determining suitability of a
candidate for appointment is to ensure
maintenance
of
efficiency
of
administration and has been consistently
followed by the Commission for the last
more than five decades.

31. Sri G.K. Singh has also placed
reliance upon Section 3 of the Uttar
Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994
(hereinafter referred to as ''the Act of
1994'), which refers to selection of a
suitable reserve category candidate or else
the vacancy would remain unfilled and
carried forward to the next recruitment. It
is urged that suitability of candidate
consistent with maintenance of efficiency
of administration in the making of
appointment to service and post in
connection with the affairs of the State
would, therefore, be the responsibility of
the Commission, and that in the absence of
any objective criteria fixed for adjudging
suitability consistent with the maintenance
of
efficiency
of
administration,
the
recruitment
itself
would
become
inconsistent
with
the
constitutional
scheme.

32. The argument advanced by Sri
G.K. Singh appears to have force,
inasmuch as the suitability of a candidate
for selection has to be on a rational and
objective criteria consistent with the
maintenance
of
efficiency
of
administration or else the selection itself
would be open to challenge on the ground
of violation of Article 14 and 16 of the
Constitution of India. It is in this context
that correspondence appears to have taken
place way back in 1966 between the State
of Uttar Pradesh and the Commission. The
State Government vide its Government
Order dated 30th September, 1966 has
clarified that a minimum standard of
fitness consistent with maintenance of
efficiency of administration has to be
maintained for all candidates including
reserved category candidates. A direction,
consequently, has been issued to the
Commission to fix minimum standard of
fitness consistent with the maintenance of
efficiency
of
administration
for
all
candidates and accordingly determine
suitability of candidates for selection. The
adherence to the criteria of minimum
standard of fitness consistent with the
maintenance
of
efficiency
of
administration is also in respect of
Scheduled
Caste/Scheduled
Tribe
candidates to the extent of seats reserved
for them, even though they may be inferior
to that of the last general candidate
selected against the non-reserved seats. It
is in this context and for fulfilling the
constitutional
mandate
that
the
Commission has fixed 40% minimum
marks to be secured at interview and/or in
the written papers.