# Neetu Devi Singh / v. High Court of Judicature at Allahabad and another

- **Citation:** (2008) 1 ILRA 257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-31
- **Case number:** THE HON'BLE ARUN TANDON. J. Special Appeal No. 129 of 2008
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neetu-devi-singh-v-high-court-of-judicature-at-allahabad-and-another-41035
- **Pages:** 5

## Headnote

Constitution of India Art. 335-petitioner
participated in written examination for
the post of A.R.O. under Physically
handicapped Quota-obtained only 36%
marks-while qualifying marks fixed is
55% -denial of further considerationheld-proper.

Held: Para 13

In view thereof, as the reservation is
provided
for
physically
handicapped
persons, though horizontal in nature,
he/she must secure minimum qualifying
marks
as
fixed
by
the
authority
concerned. The appellant-petitioner who
has failed to achieve the said benchmark
as she secured 36 percent marks while
qualifying marks had been fixed as 55
percent,
would
be
denied
further
consideration in view of the provisions of
Article 335 of the Constitution of India.
It is not the case of the appellantpetitioner that any other physically
handicapped
person
securing
lesser
marks than her, is being permitted
consideration any further.
Case law discussed:
AIR 1988 SC 162, AIR 1988 SC 1452, AIR
2002 SC 224, (2007) 8 SCC 621, AIR 1981 SC
298, AIR 1993 SC 477, AIR 1999 SC 2894, AIR
2000 SC 498, (2006) 8 SCC 212

## Text

1 All] Neetu Devi Singh V. High Court of Judicature at Allahabad and another
257
order. In my opinion, the selection
process starts from the date of the
issuance of the advertisement. In the
present case the advertisement was issued
on 25 and 27th of June, 2006 and prior to
the issuance of the advertisement the
amended rules were gazetted on 3rd
March, 2006 which became applicable.
The selection committee was required to
be constituted in accordance with the
amended rules of 3rd March, 2006.

14. In the present case, the selection
committee was constituted in accordance
with rule 16 of the Rules of 1985, which
did not include a nominee of the District
Magistrate. In my opinion, the rules
relating to the constitution of the selection
committee
is
mandatory,
and
noncompliance of this mandatory provision
invalidates the entire selection process
vis-a-vis the recommendations made by
the
selection
committee
and,
consequently, the appointment orders.

15. Consequently, this Court is of
the opinion that the selection committee
was illegally constituted in violation of
the mandatory provision of the rules of 3rd
March, 2006. Non-compliance of the
amended rules vitiated the selection
process. Consequently, the petitioners'
appointment as Class IV posts became
invalid and illegal.

16. The submissions of the learned
counsel for the petitioner that the
amended rules of 3rd March, 2006 were
not known either to the department or to
the appointing authority is patently
erroneous. The moment the rules are
gazetted, it is deemed to be in the
knowledge to all the authorities. Since I
have already held that the constitution of
the selection committee is mandatory and
that there cannot be any variation in the
constitution of its members, the deviation
made by the appointing authority was
fatal to the selection process.

17. In view of the aforesaid, there is
no infirmity in the impugned order. The
writ petition fails and is dismissed. Since I
have held that the selection committee
was wrongly constituted, consequently, I
direct
the
appointing
authority
to
reconstitute the selection committee in the
light of the amended rules of 3rd March,
2006 and hold a fresh interview from all
the candidates who had appeared pursuant
to the advertisement dated 25 and 26th of
June, 2006. The petitioners would also be
called for the interview along with other
candidates and selection would be made
in accordance with law. The entire
process shall be completed by the
appointing authority within three months
from the date of the production of a
certified copy of this order.

18. Shri Mohan Yadav, the learned
Standing Counsel will ensure that a
certified copy of this order is sent to the
appointing authority within three weeks
from today.
 Petition dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN. J.
THE HON'BLE ARUN TANDON. J.

Special Appeal No. 129 of 2008

Neetu Devi Singh ...Appellant/Petitioner
Versus
High Court of Judicature at Allahabad
and another

...Respondents
258 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Counsel for the Appellant:
Sri Anup Kumar

Counsel for the Respondents:
Sri Amit Sthalekar

Constitution of India Art. 335-petitioner
participated in written examination for
the post of A.R.O. under Physically
handicapped Quota-obtained only 36%
marks-while qualifying marks fixed is
55% -denial of further considerationheld-proper.

Held: Para 13

In view thereof, as the reservation is
provided
for
physically
handicapped
persons, though horizontal in nature,
he/she must secure minimum qualifying
marks
as
fixed
by
the
authority
concerned. The appellant-petitioner who
has failed to achieve the said benchmark
as she secured 36 percent marks while
qualifying marks had been fixed as 55
percent,
would
be
denied
further
consideration in view of the provisions of
Article 335 of the Constitution of India.
It is not the case of the appellantpetitioner that any other physically
handicapped
person
securing
lesser
marks than her, is being permitted
consideration any further.
Case law discussed:
AIR 1988 SC 162, AIR 1988 SC 1452, AIR
2002 SC 224, (2007) 8 SCC 621, AIR 1981 SC
298, AIR 1993 SC 477, AIR 1999 SC 2894, AIR
2000 SC 498, (2006) 8 SCC 212

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This Special Appeal has been
filed against the judgment and order of
the learned Single Judge dated 24/1/2008
by which the writ petition filed by the
appellant claiming appointment in reserve
category being physically handicapped
has been dismissed on the ground of
suitability as the appellant-petitioner
secured only 44 marks out of maximum
120
marks
in
the
Preliminary
Examination.

2. The facts giving rise to this appeal
are that this Court vide advertisement
dated 31/5/2006 invited applications for
150 posts for direct recruitment on the
post of Assistant Review Officer in its
establishment. The reservation provided
by the State Government for physically
handicapped persons was given effect and
the advertisement itself provided that five
posts
were
reserved
for
physically
handicapped
candidates.
Petitionerappellant appeared in the examination, but
secured only 44 marks out of 120 marks
and could not qualify as the Selection
Committee had prescribed 55 percent as
qualifying marks. Being aggrieved, the
petitioner-appellant filed the writ petition
which was dismissed vide judgment and
order dated 24/1/2008. Hence this appeal.

3. Shri Arun Kumar, learned counsel
for the appellant-petitioner has submitted
that in view of the provisions contained in
the
"The
U.P.
Public
Servants
(Reservation for Physically Handicapped,
Dependants of Freedom Fighters and Exservicemen) Act 1993 and the Disabilities
(Equal opportunities Protection of Rights
and
Full
Participation)
Act,
1995
(hereinafter called the Acts, 1993 and
1995 respectively), the respondents were
bound to consider the candidature of the
appellant-petitioner in spite of his lower
merit. It is submitted that the Selection
Committee
was
not
competent
to
prescribe any minimum percentage as
qualifying marks, hence the appeal
deserves to be allowed.

4. On the contrary it is submitted by
Shri Amit Sthalekar, learned counsel for
the respondents that the judgment and
1 All] Neetu Devi Singh V. High Court of Judicature at Allahabad and another
259
order of the learned Single Judge does not
require any interference whatsoever in
view of the fact that the Selection
Committee was competent to prescribe
minimum qualifying marks and as the
appellant miserably failed to secure the
said qualifying marks, her claim for
reservation has become meaningless. Had
she qualified by securing minimum
qualifying marks then her right for
reservation would have been considered.
Therefore, the appeal is liable to be
dismissed.

5. We have considered the rival
submissions made by learned counsel for
the parties and perused the record.

6. So far as the issue of competence
of the Selection Committee to prescribe
minimum qualifying marks is concerned,
it is no more res-integra. In State of U.P.
& Ors. Vs. Rafiquddin & Ors, AIR 1988
SC 162, the Hon'ble Supreme Court
considered the issue at length and held
that, the competitive examination is quite
different from .the examination conducted
by the Universities and educational
institutions. The purpose and object of
competitive examination is to select more
suitable candidates for appointment to
public office. A person may obtain
sufficient high marks and yet he may not
be selected on account of the limited
number of posts and availability of
persons of higher quality. The authority
concerned is competent to prescribe the
minimum marks/benchmarks and for that
purpose there is no legal requirement to
give notice to the candidates. The said
judgement was approved and followed by
the Apex Court in Mehmood Alam Tariq
Vs.. State of Rajasthan & Others AIR.,
1988 SC 1452. However, once the
Selection Board/Committee/Commission
prescribes the minimum qualifying marks
and initiates the selection process, it
cannot alter the same at any subsequent
stage of the selection. (Vide Maharastra
SRTC Vs. Rajendrra Bhimrao Mandve
AIR 2002 SC 224).

7. So far as the second question is
concerned, admittedly, the appellantpetitioner secured only 36 percent marks
though the minimum qualifying marks as
prescribed by the authority was 55
percent. Appellant-petitioner claims that
he was entitled to be considered further in
view of the reservation prescribed for
physically handicapped persons under the
aforesaid Acts.

8. In Mahesh Gupta & Ors. Vs.
Yashwant Kumar Ahirwar & Ors, (2007)
8 SCC 621, the Hon'ble Supreme Court
considered the scope of application of the
aforesaid Acts and held that State
Authorities are under a legal obligation to
provide reservation for the handicapped
persons. It is necessary to give effect to
the provisions of the said Acts as the Acts
have
been
framed
to
fulfil
the
commitments assured by Union of India
being signatory to various International
Treaties in this regard. In that case
reservation had not been provided for the
physically handicapped candidates and
the
decision
taken
by
the
State
Government
for
implementing
the
reservation policy in respect of physically
handicapped persons had not been given
effect to. The Hon'ble Apex Court
therefore directed for implementation of
the said policy by creating supernumerary
posts.

9. Undisputedly, the Act of 1983
and 1995 provide for reservation in favour
of the category to which the appellant
260 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
belongs. However, the benefit of the
statutory provisions of those Acts had to
be given effect keeping in mind the
provisions
of
Article
335
of
the
Constitution of India which specifically
provides for maintenance of efficiency of
Administration. The benefit of vertical
reservation cannot be denied to Scheduled
Castes, Scheduled Tribes and Other
Backward Classes if it adversely affects
the
maintenance
of
efficiency
of
Administration.
Reservation
in
educational institution and in employment
can be provided under Article 15 (1) or 16
(1), or 16 (4) of the Constitution of India.
Both the said provisions enable the
Competent Authority to provide for
reservation, they are merely enabling
provisions, while Article 335 is in
mandatory
language.
(Vide
Akhil
Bharatiya
Soshit
Karamchari
Sangh
(Railway) Vs. Union of India & Ors, AIR
1981 SC 298; Indra Sawhney Vs. Union
of India & Ors., AIR 1993 SC 477; Dr.
Preeti Srivastava & Anr. Vs. State of
Madhya Pradesh & Ors., AIR 1999 SC
2894 and Indra Sawhney Vs. Union of
India, AIR 2000 SC 498).

A Constitution Bench of the Hon'ble
Supreme Court in E.U Chinnaiah Vs.
State of Andhra Pradesh & Ors., AIR
2005 SC 162, held as under:-

"Furthermore,
the
emphasis
on
efficient administration placed by Article
335 of the Constitution must also be
considered when claims of Scheduled
Castes
and
Scheduled
Tribes
to
employment in the services of the Union
are to be considered."

10. A Constitution Bench of the
Apex Court in M. Nagraj & Ors. Vs.
Union of India & Ors., (2006) 8 SCC 212,
examined the validity of the Constitution
(Seventy
Seventh
Amendment)
Act,
1995; the Constitution (Eighty First
Amendment) Act 2000; the Constitution
(Eighty Second Amendment) Act 2000;
and
the
Constitution
(Eighty
Fifth
Amendment) Act 2001, providing for
reservation
to
Scheduled
Castes
in
promotions, which also provided for
relaxation of qualifying marks etc. and
held that constitutional limitation of
efficiency under Article 335 can be
relaxed but not obliterated. The Court
observed as under:-

"If
the
appropriate
government
enacting a law providing for reservation
without keeping in mind the parameters in
Article 16 (4) and Article 335 then this
Court will certainly set aside and strike
down such legislation........ It is for the
State concerned to decide in a given case,
whether the overall efficiency of the
system is affected by such relaxation. If
the relaxation is so excessive that it
ceases to be qualifying marks then
certainly in a given case, as in the past,
the State is free not to relax such
standards. In other cases, the State may
evolve
a
mechanism
under
which
efficiency, equity and justice, all three
variables could be accommodated."

11. Thus, only in exceptional cases,
for compelling interest of the reserved
category candidates, the State may relax
the qualifying marks after identification
by weighing the comparable data, without
affecting general efficiency of service as
mandated under Article 335 of the
Constitution.

12. The judgment in Mahesh Gupta
(supra) is not an authority on the issue as
to whether an employer can compromise
1 All] M/s Vehalana Steels & Alloys P.Ltd. V. State of U.P. and others
261
with the efficiency of administration to
provide employment to the candidates of
any reserved category in contravention of
the mandate of Article 335 of the
Constitution.

13. In view thereof, as the
reservation is provided for physically
handicapped persons, though horizontal in
nature, he/she must secure minimum
qualifying marks as fixed by the authority
concerned. The appellant-petitioner who
has failed to achieve the said benchmark
as she secured 36 percent marks while
qualifying marks had been fixed as 55
percent,
would
be
denied
further
consideration in view of the provisions of
Article 335 of the Constitution of India. It
is not the case of the appellant-petitioner
that any other physically handicapped
person securing lesser marks than her, is
being permitted consideration any further.

14. The Special Appeal lacks merit
and is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2008

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 1820 (Tax) of
2007

M/s Vehalana Steels & Alloys Pvt. Ltd.

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Aloke Kumar

Counsel for the Respondents:
S.C.
Constitution of India-Art. 226-Principle
of
Natural
Justice-Provisional
assessment-notice
issued
based
on
survey report-copy of enquiry report not
given as being confidential documentheld-once inference given in show cause
notice-can not be said to be confidential.

Held: Para 5 & 6

The present case also where assessment
is proposed by the authority based on a
survey and the report submitted on the
basis of the said survey, the authority
before acting upon such report is bound
to disclose the said report to the person
concerned otherwise it would amount to
take
a
decision
without
disclosing
adverse
material
to
the
person
concerned.

In our view the aforesaid decision of the
assessing authority cannot be sustained.
There does not appear any logical reason
to hold the report of the DC SIB to be
confidential
and
accordingly-for
not
supplying the same, if it is proposed by
the department to rely upon that report
in the provisional assessment.
Case law discussed:
AIR 1979 SC-1237, AIR 1978 SC-851, AIR
1991 SC-471, AIR 1994 SC-1074

(Delivered by Hon'ble Sushil Harkauli. J.)

1. It is alleged by the petitioner that
after the survey on 12.7.2007 by the team
of
the
Respondent-Department,
the
petitioner was called upon by the Deputy
Commissioner (SIB) Trade Tax, Muzaffar
Nagar (hereinafter referred for short as
DC SIB) for producing the accounts,
which the petitioner claims to have
produced. The petitioner also claims to
have participated in the proceedings
before
the
said DC SIB. Further,
according to the petitioner, the DC SIB
submitted a report as a result of the said
inquiry, whereafter notice for provisional
assessment has been issued to the