# Nishant Yadav & Ors v. The Registrar General & Ors

- **Citation:** (2021) 5 ILRA 104
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-12
- **Case number:** Special Appeal Defective No. 318 of 2021
- **Bench:** Sanjay Yadav, Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nishant-yadav-ors-v-the-registrar-general-ors-47044
- **Pages:** 16

## Headnote

A. Civil Law - U.P. District Court Service
Rules, 2013 - Ch. II, R. 9 - Post of Clerk
and Stenographer - Recruitment - Stage
II
examination
-
Application
of
subsequent
criteria
to
the
selection
already initiated - Retrospective Effect -
Held, the approach of learned Single
Judge
to
adjudge
the
efficiency
of
respective candidates by incursing the
resolution of 2019, which laid down the
5 All. Nishant Yadav & Ors. Vs. The Registrar General & Ors.
105
criteria
of
minimum
marks,
for
the
recruitment of 2014, cannot be given the
stamp of approval - No irregularity or
infirmity of pervasive nature were brought
on record as would establish that the
entire process of recruitment got vitiated.
(Para 30 and 32)
B. Interpretation of Statute - Service
Jurisprudence - Systemic flaw - Meaning
- It mean the irregularities in the
recruitment process having taken place on
a systemic level i.e. where the procedure
laid down by the Rules or otherwise, such
as the Advertisement, is violated resulting
in vitiation of entire process, because of
the percolation of such flaw down the
process (Para 26)
Special Appeal allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,744 of 50,745. This is a partial read: ask again with offset=39744 for what follows._

104 INDIAN LAW REPORTS ALLAHABAD SERIES
desist from performing, such act for which
a writ of mandamus is sought. That right
may be derived, inter alia, from the
Constitution of India, a statute or a rule or
an executive instruction. The petitioner has
failed to demonstrate that any such right
inheres in her under a Statute or rule or
executive instructions. Whether such right
inheres in her under the Constitution of
India needs to be examined. Interestingly,
the petitioner has not challenged the
instructions contained in clause 17 of the
notification as violative of Part III of the
Constitution of India or any statutory
provision or rule. Otherwise also, in
matters relating to public examinations,
such strict instructions as are found in
clause 17 of the notification are desirable to
prevent foul play and to ensure expeditious
conclusion of the recruitment process,
inasmuch as if candidates are allowed to
correct/alter data their merit position would
alter
accordingly,
resulting
in
utter
confusion.
Therefore,
ex
facie,
such
instructions do not appear arbitrary. In
these
circumstances, we are of the
considered view, the appellant has failed to
make out a case for issuance of a writ in the
nature of mandamus commanding the
respondents to rectify the mistake made by
her in her online submission.

9. The decision of the Apex Court in
Archana Chauhan's case (supra) does not
lay down as a law that all rectifications of
any nature must be allowed. Moreover, in
Archana Chauhan's case (supra), the
information of which correction was
allowed was not in respect of the marks
obtained by a candidate but was in respect
of an obvious error of adding a zero to the
total marks for which the candidate had
appeared in the Intermediate examination.
Thus, in our considered view, the learned
Single Judge rightly observed that the
second correction sought would not be
covered by the decision in Archana
Chauhan's case. For all the reasons
mentioned above, we find no good ground
to interfere with the judgment and order
passed by the learned Single Judge. The
appeal is dismissed.
----------
(2021)05ILR A104
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2021

BEFORE

THE HON'BLE SANJAY YADAV, J.
THE HON'BLE PRAKASH PADIA, J.

Special Appeal Defective No. 318 of 2021
AND
Special Appeal Defective No. 319 of 2021
AND
Special Appeal Defective No. 320 of 2021
AND
Special Appeal Defective No. 321 of 2021

Nishant Yadav & Ors. ....Petitioners
Versus
The Registrar General & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Shailendra Srivastava, Sri Shailendra
(Senior Advocate)

Counsel for the Respondents:
Sri Harendra Prakash Dwivedi, Sri Ashish
Mishra

A. Civil Law - U.P. District Court Service
Rules, 2013 - Ch. II, R. 9 - Post of Clerk
and Stenographer - Recruitment - Stage
II
examination
-
Application
of
subsequent
criteria
to
the
selection
already initiated - Retrospective Effect -
Held, the approach of learned Single
Judge
to
adjudge
the
efficiency
of
respective candidates by incursing the
resolution of 2019, which laid down the
5 All. Nishant Yadav & Ors. Vs. The Registrar General & Ors.
105
criteria
of
minimum
marks,
for
the
recruitment of 2014, cannot be given the
stamp of approval - No irregularity or
infirmity of pervasive nature were brought
on record as would establish that the
entire process of recruitment got vitiated.
(Para 30 and 32)
B. Interpretation of Statute - Service
Jurisprudence - Systemic flaw - Meaning
- It mean the irregularities in the
recruitment process having taken place on
a systemic level i.e. where the procedure
laid down by the Rules or otherwise, such
as the Advertisement, is violated resulting
in vitiation of entire process, because of
the percolation of such flaw down the
process (Para 26)
Special Appeal allowed. (E-1)
Cases relied on :-
1. Civil Appeal Nos. 639-640 of 2021; Sachin
Kumar & ors. Vs Delhi Subordinate Service
Selection Board (DSSSB) & ors. decided by the
Supreme Court on 03.03.2021
2. U.O.I. & ors. Vs Rajesh P.U., Puthuvalnikathu
& anr.; (2003) 7 SCC 285
3. Shri Durgacharan Misra Vs St. of Orissa &
ors.; AIR 1987 SC 2267
(Delivered by Hon'ble Sanjay Yadav, J. &
Hon'ble Prakash Padia, J.)

Shri Shailendra, learned Senior
Counsel
assisted
by
Shri
Shailendra
Shrivastava appears on behalf of the
appellants and Shri H.P. Dwivedi, learned
counsel appears on behalf of respondents no.
2 to 6 in Special Appeal Defective No. 318 of
2021.

Shri H.N. Singh, learned Senior Counsel
assisted by Shri Kamal Kumar Kesharwani
appears for the appellants and Shri Saurabh
Singh and Shri Rajesh Kumar Shrivastava,
learned counsel appears on behalf of
private respondents in Special Appeal
Defective no. 319 of 2021.

Shri Radha Kant Ojha, learned Senior
Counsel assisted by Shri Shivendu Ojha
appears for the appellants and Shri Saurabh
Singh, learned counsel appears on behalf of
respondents no. 2 to 6 in Special Appeal
Defective no. 320 of 2021.

Shri Anil Bhushan, learned Senior
Counsel assisted by Shri N.N. Mishra appears
for the appellants and Shri H.P. Dwivedi and
Shri Amit Saxena, learned counsel appears
on behalf of respondents no. 2 to 6 in Special
Appeal Defective no. 321 of 2021.

Shri Ashish Mishra, learned Counsel
appears on behalf of the respondent no. 1Registrar General, High Court in all the
appeals.

1. These batch of Special Appeals
under Chapter VIII Rule 5 of the High
Court Rules, 1952 take exception to order
dated 17.03.2021 passed by learned Single
Judge in batch of Writ petitions with
leading writ petition Writ A No. 29665 of
2015 (Vineet Kumar and 4 others V. The
Registrar General, High Court of Judicature
At Allahabad). With the consent of learned
counsel for the contesting parties the matter
is finally heard.

2. The relevant facts briefly are that
under The Uttar Pradesh Civil Court Staff
Centralised Recruitment Scheme 2014
applications were invited for appointment
of Category ''C' clerical cadre and the
Stenographer; vide: Advertisement No. 1
/Sub.Court
/Category
''C'
/Clerical
Cadre/2014 and Advertisement No. 1
/Sub.Court /Stenographer /2014.
106 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The relevant Rules which governs
recruitment are The Uttar Pradesh District
Court Service Rules, 2013. Chapter II
whereof laid down the procedure for
Recruitment. That Rule 9 provides for the
manner of appointment through Direct
Recruitment, stipulating therein:

"9. Direct Recruitment:-

(1) The appointing Authority
shall intimate the Selecting Authority in the
month of July every year the number of
vacancies existing and likely to occur
during the year of recruitment for direct
recruitment in different category of posts.
The
Selecting
Authority
shall
invite
applications by giving vide publicity
indicating the total number of vacancies
notified for recruitment and the number of
vacancies reserved for different reserved
categories.

(2) The Selecting Authority may
short-list the candidates to be called for the
written examination equal to twenty five
times the number of vacancies notified on
the basis of the marks obtained in the
qualifying examination given in Schedule
'B'or by a preliminary objective test.

(3) Notwithstanding anything to
the
contrary
in
these
Rules,
the
Appointing Authority and the Selecting
Authority with regard to conduct of
examination and selection shall act in
accordance with general or special orders
issued by Hon'ble Chief Justice of the
High Court, from time to time.

That Rule 10 of the Rules of 2013
inter alia provided for the eligibility of
candidate for the interviews, stipulating
therein :

10. Eligibility of candidates for
the interview-

(1) For the purpose of selection
of the candidates for the interview, the
appointing authority shall prepare a list of
names of candidates on the basis of
percentage of the total marks secured in the
written examination in the order of merit
and if two or more candidates have secured
equal percentage of total marks in the
written examination, the order of merit in
respect of such candidates shall be fixed on
the basis of their age, the person or persons
older in age being placed higher in order
of merit. From among the candidates
whose names are included in such list, as
far as may be, such number of candidates
as is equal to five times the number of
vacancies notified, selected in the order of
merit, shall be eligible for the interview:

(2) For the purpose of this rule,-

''Written examination' means the
competitive examination held by the
Selecting Authority as per syllabus given
in Schedule 'C'.

4. That Clause 6 of the Advertisement
laid down the procedure for selection :

"6.
SELECTION
PROCEDURE: The Selection procedure
shall
include
one
common
offline
examination
(Written
examination
on
O.M.R. sheet for all the posts. Selection
procedure shall consists of following
stages:

(1)
Off-line
examination
(objective type written examination on
O.M.R. Sheet) for Group ''C 'posts. The
selection process for the post of junior
5 All. Nishant Yadav & Ors. Vs. The Registrar General & Ors.
107
Assistant and Paid Apprentices shall be
same.

(2)
Computer
Type
Test:
Hindi/English Computer type test for
Group ''C' Posts shall be held on a later date
after declaration of result of the Offline
examination
(Written
Examination
on
O.M.R. sheet). Five candidates in order of
merit against each post category-wise shall
be shortlisted for appearing in Computer
Type test

(3) Interview shall not be part of
the selection process

(4) A combined merit list for
Class-III posts (except the post of Driver
and Stenographer) shall be prepared on the
basis of marks obtained by the candidates
in Offline examination and Hindi/English
type test on computer.

Notwithstanding anything to the
contrary in these rules the Appointing
Authority and the Selecting Authority with
regard to conduct of examination and
selection shall act in accordance with
general or special orders issued by Hon'ble
Chief Justice of High Court from time to
time.

Syllabus
for
off-line
examination (objective type on OMR
sheet) for the post of Class ''C' Clerical
Cadre

Syllabus
for
off-line
examination shall be as follows:

Test
-
1
Offline
Examinatio
n (Duration
SUBJECTS

Marks
90 Minutes)
Examinatio
n will carry
100
questions

(A
)

Hindi

100
Marks

(B)

English

(C)

General
Studies

(D
)

Mathematic
s

Test-2 Hindi/English Computer
Type Test
25/30 words per minute for
Hindi/English
typewriting
on
computer

25
Marks
(For
Hindi
Typing
25
Marks
for
English
Typing
)

Note: There shall be no negative
marking on wrong answers in Objective
type test

Date, Time, Venue and shifts of
Examination:- Date, time and venue of
examination shall be intimated to the
candidates through E-Admit Cards which
can be downloaded from the website
www.allahabadhighcourt.in.
108 INDIAN LAW REPORTS ALLAHABAD SERIES

The Selection Committee has
discretion to fix minimum qualifying
marks in any or all parts of papers for
off-line
examination
(Test
1)
Hindi/English Computer Type test (Test
2)."

5. That Clause 7 of said advertisement
made provision for preparation of Select
list stipulating therein :

"7.
Lists
of
Selected
Candidates- (1) A combined merit list for
Class III posts shall be prepared on the
basis of marks obtained by the candidates
in
off-line
examination
(Test
1),
Hindi/English Computer Type test (Test 2).
The Selecting Authority on the basis of the
aggregate of the percentage of the total
marks secured in the off-line examination,
the marks secured in the Hindi/English
Computer Type test (Test 2) and taking into
consideration, the order in force relating to
reservation of posts for Scheduled Castes,
Scheduled Tribes, Other Backward Classes
and other categories prepare in the order of
merit, a list of candidate eligible for
appointment to the category of the posts
and if the aggregate of the percentage of
total
marks
secured
in
the
written
examination and of the marks secured in
the Hindi/English Computer typing skill
test, of two or more candidates is equal, the
order of the merit in respect of such
candidates shall be fixed on the basis of
their age, the person or persons older in age
being placed higher in the order of the
merit. The number of the names of the
candidates to be included in such list shall
be equal to the number of the vacancies
notified for the recruitment. If the selected
candidates could not be offered the
judgeships applied for in order of priority
in which they wish to be posted, he/she can
be recommended against any other post
advertised in any District. After the
completion of the selection process, the list
of
the
selected
candidates
shall
be
forwarded to the District Judgeships against
the available vacancies. The District Judge
will be at liberty to post the candidates on
any of the post mentioned at Serial No. 1
and 2 of the above mentioned table as per
the
availability
of
the
posts
and
requirement in the judgeship.

(2) The Selecting Authority shall
in accordance with the provisions of subrule(1) also prepare an additional list of
names of candidates not included in the list
prepared under sub-rule (1) in which the
number of candidates to be included shall,
as far as possible, be 10% of the number of
vacancies notified.

(3) Duration of operation of
Lists:- The list of the names of the
candidates published by the Selecting
Authority under Rule 12 in respect of any
cadre shall cease to be operating on
appointment of the last advertised vacancy
or one year whichever is earlier."

6. Apparent it is from the relevant
Rules and the stipulations contained in the
Advertisement that for Clerical Cadre and
Stenographers, two stages/three stages,
respectively, were set in for drawing merit
list,
viz,
offline
examination
and
Hindi/English Computer Type Test. There
was no negative marking on wrong answers
in objective type test i.e. Stage I and that
the aggregate of the percentage of the total
marks secured in the off-line examination,
the
marks
secured
in
Hindi/English
Computer Type Test was the foundation for
preparing merit list. It is also evident from
the stipulation in the advertisement that the
Selection Committee had the discretion to
fix minimum qualifying marks in any or all
5 All. Nishant Yadav & Ors. Vs. The Registrar General & Ors.
109
parts of papers for off-line examination
(Test 1) and Hindi/English Computer Type
Test (Test 2).

7.

That
against
2341
posts
approximately
Twelve
Thousand
Candidates applied for recruitment. These
figures, pertinent it is to mention, were
adverted during course of hearing.

8. That after first stage test, i.e. off
line examination, certain participants like
the respondent petitioners approached this
High Court, raising grievance against the
nature of test-2. Precise contention raised
by them was use of ''Mangal' font. The
specific relief sought by them in the
petition was that they may be permitted to
appear in Hindi Type Test Examination
with "Kruti Dev II font" in place of
"Mangal font" and to consider their
candidature for appointment by judging
them by conducting typing test on Kruti
Dev II font.

9. That by an interim order dated
21.05.2015, it was directed that "the
selection may go on but the result in
respect of five petitioners herein shall not
be declared till next date of listing. The
petitioners are at liberty to appear in the
examination without prejudice to their
right." Apparently the writ court at the
interim stage did not accede to the prayer
made by the petitioners to permit them to
attempt the Test with ''Kruti Dev II font'.

10. That during pendency of writ
petition final select list was published
which led the petitioners amend the petition
whereby they sought quashment of entire
select list, which led the writ court on
6.5.2019, taking note of the fact that the
Selectees who may be effected with the
order were not made parties, to be
apprised of the pendency of the petition
through respective District Judge, who is so
choose to contest the petition.

11. In these factual background the
batch of writ petition came to be heard and
decided by the impugned order.

12. Learned Single Judge recorded
following facts which were borne out from
records and are not disputed before us :

"7. So far as the conduct of first
stage examination both in Stenographer
and Clerical Cadre is concerned, there are
no issues.

8. It is admitted on record that
the impugned select list has been drawn on
the basis of merit list drawn by adding the
marks secured by a candidate in all three
stages for Stenographers and the two
stages for the Clerical Cadre.

9. From the records it is apparent
that no marking/evaluation criteria was
specified in the advertisement, nor any such
stipulation exists in the rules. No minimum
marks were fixed for the type test or the
shorthand exam. It is also admitted that
prior to conduct of aforesaid examination,
the High Court or the Recruitment and
Appointment Cell of the High Court had
not finalized any marking or evaluation
criteria for appointment(s) in question. The
marking and evaluation process, therefore,
was evolved exclusively by the outsourced
agency i.e. TCS. The criteria for evaluation
and marking, as determined by TCS has
been placed on record by the respondents
in their second supplementary counter
affidavit
as
Annexure
SCA-1.
This
document is a communication sent by TCS
110 INDIAN LAW REPORTS ALLAHABAD SERIES
in response to a letter sent by the
Recruitment Cell of the High Court, which
is extracted hereinafter:-

"2.
Exam
Process
for
Stenographer Grade III - Category C
(Response to para no. 8)

There was total three stages in
examination:

Stage 1: Offline Examination
(Maximum Marks: 100)

Stage 2: Computer Typing Test
(English and Hindi) (Maximum Marks: 50)

Stage 3: Hindi/English Shorthand
Test (Maximum Marks: 50)

Agency has conducted the STAGE
1 offline exam for all the candidates
appearing for Stenographer Grade III-
Category C. Candidates were evaluated as
per
evaluation
criteria
attached
as
annexure 1. Five candidates in order of
Merit against each post category-wise were
shortlisted for appearing in stage 2
Computer Typing Test and stage 3
Hindi/English Shorthand Test.

Agency has conducted the STAGE
2 Computer Typing Test (English and
Hindi) for candidates selected in stage 1
examination. Hindi/English Typing test was
conducted and score was evaluated as per
evaluation criteria attached as annexure 2.
As no marking/evaluation criteria was
mentioned in advertisement neither shared
by
High
Court,
so
Marking
for
Hindi/English Typing test was done with
provision for negative marking. Cut off
marks for this test was not defined in the
Advertisement hence score was calculated
which may be positive, zero or negative.

Agency has conducted the STAGE
3
Hindi/English
Shorthand
Test
for
candidates selected in stage 1 examination.
Hindi/English
Shorthand
Test
was
conducted and score was evaluated as per
evaluation criteria attached as annexure 3.
As no marking/evaluation criteria was
mentioned in advertisement neither shared
by
High
Court,
so
Marking
for
Hindi/English Shorthand test was done
with provision for negative marking. Cut
off marks for this test was not defined in the
Advertisement hence score was calculated
which may be positive, zero or negative.

Final score considered for Merit
List was prepared after consolidation of
marks of all appeared candidate in Stage 1,
Stage 2 and Stage 3 Examination hence
combined score calculated may be positive,
zero or negative. Final Merit List was
prepared based on criteria mentioned in
advertisement."

10. So far as the examination for
the Clerical Cadre is concerned, the
communication specifies following process
for recruitment:-

"Agency
has
conducted
the
STAGE 1 offline exam for all the
candidates appearing for Clerical Cadre-
Category C. Candidates were evaluated as
per
evaluation
criteria
attached
as
annexure 1. Five candidates in order of
Merit against each post category-wise were
shortlisted for appearing in stage 2
Computer Typing Test.

Agency has conducted the STAGE
2 Computer Typing Test (English and
Hindi) for candidates selected in stage 1
examination. Hindi/English Typing test was
conducted and score was evaluated as per
evaluation criteria attached as annexure 2.
5 All. Nishant Yadav & Ors. Vs. The Registrar General & Ors.
111
As no marking/evaluation criteria was
mentioned in advertisement neither shared
by
High
Court,
so
Marking
for
Hindi/English Typing test was done with
provision for negative marking. Cut off
marks for this test was not defined in the
Advertisement hence score was calculated
which may be positive, zero or negative.

Final score considered for Merit
List was prepared after consolidation of
marks of all appeared candidate in Stage 1
and Stage 2 Examination hence combined
score calculated may be positive, zero or
negative. Final Merit List was prepared
based
on
criteria
mentioned
in
advertisement."

13. The submissions put forth before
learned Single Judge on behalf of the
petitioners were that the Selection has been
made without following any objective
criteria for determining the inter se merit
and even the candidates who secured ''zero'
or ''negative' marks in the shorthand and
typing test were selected. It was also
contended that the persons who acquired
eligibility
qualifications
after
commencement of recruitment were also
permitted to participate and that though
2220 candidates appeared in the type test,
but 2369 candidates were shown to have
qualified.

14. The respondents defended the
recruitment contending inter alia that the
selection was held as per the procedure laid
down in the Rules of 2013 and the
stipulations contained in the respective
advertisement. It was contended that all the
candidates were subjected to uniform
process and same font has been used for
adjudging the proficiency of all the
candidates. As regard to numbers of
candidates adverted by the petitioners, it
was urged by the respondents that some of
the candidates since applied for both Hindi
and English stenographer as a result
whereof the total number of candidates,
which included 149 candidates who applied
for both English and Hindi stenographers,
was shown on the higher side. It was
further contended that the recruitment
which took place in 2015, in furtherance
therewith appointments were made and the
incumbents appointed are satisfactorily
performing their duties. It was further
contended that the persons who were
ineligible on the last date of filing of
application
due
to
their
eligibility
qualifications being of a later date have
already been removed.

15. Learned Single Judge while not
disputing that there was no minimum marks
fixed for passing the typing or short hand test,
in other words, the marks obtained in Stage 2
since was to be averaged with the marks
obtained in Stage 1, lost its significance as
there was no cut off passing marks of Stage 2
examination. However, observing that the
skill/proficiency of a candidate is judged by
accounting for his positive attributes vis-a-vis
negative attributes and if the later outweighs
earlier, then the proficiency of a candidate is
under cloud. And further observing that
"failure to fix minimum marks has allowed
entry into service to those who do not meet
the minimum bench mark expected of a
stenographer/clerk." Furthermore, comparing
with the examinations held in subsequent
years wherein minimum cut off marks were
fixed, learned Single Judge faulted with the
Stage-2 examination. While not disputing the
preposition that "it is always open for the
employer to specify the font for testing the
typing skill of a candidate" and without
setting aside the criteria fixed by the
112 INDIAN LAW REPORTS ALLAHABAD SERIES
employer of Type Testing the candidate
through Mangal font, yet faulted with the
procedure that the candidate did not get fair
opportunity to practice on it and compete.
With these reasoning learned Single Judge
opined that "the ends of Justice would be met
if the respondents are directed to conduct
Stage II and III of the recruitment process
afresh, as applicable, by subjecting all
candidates who have qualified Stage I of the
two recruitments and have participated in
Stage II and III as applicable, to appear in it."

16. Learned Single Judge further
directed that the criteria for holding of typing
and stenography test would be such as is
already
approved
by
the
Recruitment
Committee in its subsequent minutes dated
02.04.2019 approved by the Chief Justice on
03.04.2019. In other words, the resolution of
02.04.2019 were directed to be made
applicable retrospectively for the recruitment
of 2014.

17. The correctness of these reasonings
and the conclusion are being questioned vide
present batch of Appeals at the instance of the
Clerks as well as the Stenographers who were
appointed and are working for over five
years.

18 . It is urged that fixing of criteria for
recruitment being the prerogative of the
employer who having chosen not to fix the
cut
off
passing
marks
for
Stage
2
examination, it was beyond the competence
of a court under Article 226 of the
Constitution to have adjudged the selection of
2014 on the basis of criteria subsequently laid
down in the year 2019.

19. It is further contended that since
as per stipulation contained in Clause 6 of
the Advertisement that the candidate has to
be adjudged eligible for interview on the
basis of combined merit list for Class III
posts prepared on the basis of marks
obtained by the candidate in offline
examination
i.e.
Stage
I
Test
and
Hindi/English Type Test on computer i.e.
State II Test, in absence of cut off marks
were rightly not adjudged ineligible and
learned Single Judge erred in assuming
such candidate as ineligible on the basis of
the criteria laid down in the year 2019. It is
urged that since there was no complaint
about the procedure adhered as such there
was no systemic flaw in the recruitment
and that after appointment, respective
appointees having satisfactorily worked
without any complaint cannot be subjected
to re-examination with changed criteria. It
is further contended that only 19 of the
Selectees were found to have obtained no
marks in Stage 2 examination and for that
instead of weeding them out learned Single
Judge faltered with the entire selection at
the instance of few.

20.

On
these
contention,
the
appellants seek indulgence.

21. Contesting Respondents on their
turn besides supporting the impugned
judgement
raise
an
objection
as
to
maintainability of the Appeal on the ground
of non-joinder of necessary parties.

22. It is urged that with Writ A No.
29665 of 2015 being the lead case, 40 writ
petitions were decided by the common
order and irrespective of the fact that the
challenge is to an order in Writ A No.
29665 of 2015 incumbent it is upon the
Appellants
to
have
impleaded
the
petitioners
of
respective
petition
as
respondents. Instead, it is urged that, only
the petitioners of Writ A No. 29665 of
2015
are
impleaded
as
respondents;
therefore, the petition is not maintainable.
5 All. Nishant Yadav & Ors. Vs. The Registrar General & Ors.
113

23. It be noted that the challenge in
the writ petition filed by five persons was
the use of ''Mangal font' in the second stage
of the recruitment wherein none of the
prospective
candidates
were
made
respondent. Further during pendency of the
said writ petition which was filed in the
year 2015 a final list was published
whereon through amendment the entire
select list was challenged; however, the
persons in the select list were impleaded
only in a representative capacity through
present appellant who were impleaded as
respondents No. 2 to 15. Subsequently
multiple petition came to be filed and the
writ court realising that the remaining
selectees who were not impleaded parties
were only a proper parties directed on
21.10.2019 to apprise all the selectees
through respective District Judges as to
pendency of lis. The Writ A 29665 of 2015
was all along treated as main case and the
argument were heard therein by connecting
other writ petitions subsequently filed. In a
litigation as the present one wherein entire
selection
for
appointment
of
2341
clerk/stenographer is questioned and a lead
petition
is
heard
and
decided,
the
petitioner(s) of such petitions are necessary
party(ies) being representative in nature
whereas the petitioners of connected
petitions are only proper party (ies) which
may entitle them to file a caveat; however,
their non impleadment in the intra court
appeal against the main order, in our
considered opinion, will not lead to non
maintainability of the Appeal.

24. In view whereof the preliminary
objection as to maintainability of Appeal is
negatived. The Appeal is held to be
maintainable.

As to merit.

25.

After
considering
the
submissions of respective parties, the sole
issue which crops up for consideration is
that in the given facts wherein there is no
dispute that there is no systemic flaw and
the
entire
recruitment
of
Clerks/Stenographers was in accordance
with the stipulation contained in the Rules
of 2013 and the parameters stipulated in the
advertisement, whether learned Single
Judge has justified in causing indulgence
with the selection on the basis of the
criteria subsequently laid down and the fact
that only fraction of incumbents, (i.e. 19 in
numbers) were found to have received no
marks in the second stage Test.

26 . By systemic flaw we mean the
irregularities in the recruitment process
having taken place on a systemic level i.e.
where the procedure laid down by the
Rules
or
otherwise,
such
as
the
Advertisement, is violated resulting in
vitiation of entire process, because of the
percolation of such flaw down the process.
This principle is recently adverted at to
adjudge the challenge to the recruitment
process as the present one in Civil Appeal
Nos. 639-640 of 2021 (arising out of
Special Leave Petition (C) Nos. 5785-5786
of 2020: Sachin Kumar & Ors. Vs Delhi
Subordinate
Service
Selection
Board
(DSSSB) & Ors. decided on 03.03.2021;
wherein their Lordships observed :

" 33. In deciding this batch of
SLPs, we need not re-invent the wheel.
Over the last five decades, several
decisions of this Court have dealt with the
fundamental issue of when the process of
an
examination
can
stand
vitiated.
Essentially, the answer to the issue turns
upon whether the irregularities in the
process have taken place at a systemic level
114 INDIAN LAW REPORTS ALLAHABAD SERIES
so as to vitiate the sanctity of the process.
There are cases which border upon or
cross-over into the domain of fraud as a
result
of
which
the
credibility
and
legitimacy of the process is denuded. This
constitutes one end of the spectrum where
the authority conducting the examination
or convening the selection process comes
to the conclusion that as a result of
supervening event or circumstances, the
process has lost its legitimacy, leaving no
option but to cancel it in its entirety. Where
a decision along those lines is taken, it does
not turn upon a fact-finding exercise into
individual acts involving the use of malpractices or unfair means. Where a
recourse to unfair means has taken place
on a systemic scale, it may be difficult to
segregate the tainted from the untainted
participants in the process. Large scale
irregularities including those which have
the effect of denying equal access to
similarly circumstanced candidates are
suggestive of a malaise which has eroded
the credibility of the process. At the other
end of the spectrum are cases where some
of the participants in the process who
appear at the examination or selection test
are guilty of irregularities. In such a case,
it may well be possible to segregate
persons who are guilty of wrong-doing
from others who have adhered to the rules
and to exclude the former from the process.
In such a case, those who are innocent of
wrong-doing should not pay a price for
those who are actually found to be involved
in irregularities. By segregating the wrongdoers, the selection of the untainted
candidates can be allowed to pass muster
by taking the selection process to its logical
conclusion. This is not a mere matter of
administrative procedure but as a principle
of
service
jurisprudence
it
finds
embodiment in the constitutional duty by
which public bodies have to act fairly and
reasonably. A fair and reasonable process
of selection to posts subject to the norm of
equality of opportunity under Article 16(1)
is a constitutional requirement. A fair and
reasonable process is a fundamental
requirement of Article 14 as well. Where
the recruitment to public employment
stands vitiated as a consequence of
systemic fraud or irregularities, the entire
process becomes illegitimate. On the other
hand, where it is possible to segregate
persons who have indulged in malpractices and to penalise them for their
wrong- doing, it would be unfair to impose
the burden of their wrong-doing on those
who are free from taint. To treat the
innocent and the wrong-doers equally by
subjecting the former to the consequence of
the cancellation of the entire process would
be contrary to Article 14 because unequals
would then be treated equally. The
requirement that a public body must act in
fair and reasonable terms animates the
entire process of selection. The decisions of
the recruiting body are hence subject to
judicial control subject to the settled
principle that the recruiting authority must
have a measure of discretion to take
decisions in accordance with law which are
best suited to preserve the sanctity of the
process. Now it is in the backdrop of these
principles, that it becomes appropriate to
advert to the precedents of this Court which
hold the field."

Thus unless an infirmities of all
pervasive
nature
is
established,
the
recruitment process cannot be set aside
with a direction to hold fresh selection.

27. In the case at hand the Rules
applicable
are
the
Rules
of
2013
whereunder Rule 9 mandates that the
Appointing Authority shall intimate the
Selecting Authority in the month of July
5 All. Nishant Yadav & Ors. Vs. The Registrar General & Ors.
115
every year the number of vacancies
existing and likely to occur during the year
of recruitment for direct recruitment in
different category of posts. The Selecting
Authority shall invite applications by
giving vide publicity indicating the total
number
of
vacancies
notified
for
recruitment and the number of vacancies
reserved for different reserved categories.
Sub-Rule (3) of Rule 9 of the Rules of 2013
which starts with non obstante clause
stipulates that "Notwithstanding anything
to the contrary in these Rules, the
Appointing Authority and the Selecting
Authority with regard to conduct of
examination and selection shall act in
accordance with general or special orders
issued by Hon'ble Chief Justice of the High
Court, from time to time." Further, in the
advertisement which was issued in the year
2014 the Selection Procedure was carved
vide Clause 6 of the advertisement stating
therein that the Selection Procedure shall
include one common offline examination
(written examination on OMR sheet) for all
posts and the selection procedure consisted
of following stages:

"(1)
Off-line
examination
(objective type written examination on
O.M.R. Sheet) for Group ''C' posts. The
selection process for the post of junior
Assistant and Paid Apprentices shall be
same.

(2)
Computer
Type
Test:
Hindi/English Computer type test for
Group ''C' Posts shall be held on a later
date after declaration of result of the
Offline examination (Written Examination
on O.M.R. sheet). Five candidates in order
of merit against each post category-wise
shall be shortlisted for appearing in
Computer Type test

(3) Interview shall not be part
of the selection process

(4) A combined merit list for
Class-III posts (except the post of Driver
and Stenographer) shall be prepared on the
basis of marks obtained by the candidates
in Offline examination and Hindi/English
type test on computer.

Notwithstanding anything to the
contrary in these rules the Appointing
Authority and the Selecting Authority with
regard to conduct of examination and
selection shall act in accordance with
general or special orders issued by Hon'ble
Chief Justice of High Court from time to
time."

28.

It
further
stipulated
that
notwithstanding anything contrary in the
Rules the Appointing Authority and the
Selecting Authority with regard to conduct
of examination and selection shall act in
accordance with general or special orders
issued by the Chief Justice of the High
Court from time to time. And that the
Selection Committee has discretion to fix
minimum qualifying marks in any or all
parts of papers for off-line examination
(Test 1) Hindi/English computer Type Test
(Test-2).

29. Evidently, and its been duly noted
by learned Single Judge that no such
discretion as vested in the Selection
Committee or any direction by the Chief
Justice was issued in respect of Selection in
question fixing minimum qualifying marks
in any or all parts of papers for Test 1 and
Test 2.

30. Evidently no irregularity or
infirmity of pervasive nature were brought
116 INDIAN LAW REPORTS ALLAHABAD SERIES
on record as would establish that the entire
process of recruitment got vitiated. In
Union of India and Others Vs Rajesh
P.U.,
Puthuvalnikathu
and
Another
(2003) 7 SCC 285, it is held:

"6. ....There seems to be no
grievance of any malpractices as such in the
process of written examination-either by the
candidates or by those who actually
conducted them." "...In the light of the above
and in the absence of any specific or
categorical
finding
supported
by
any
concrete
and
relevant
material
that
widespread infirmities of all pervasive
nature, which could be really said to have
undermined the very process itself in its
entirety or as a whole and it was impossible
to weed out the beneficiaries of one or the
other of irregularities, or illegalities, if any,
there was hardly any justification in law to
deny appointment to the other selected
candidates whose selections were not found
to be, in any manner, vitiated for any one or
the other reasons. Applying an unilaterally
rigid and arbitrary standard to cancel the
entirety of the selections despite the firm and
positive information that except 31 of such
selected candidates, no infirmity could be
found with reference to others, is nothing but
total disregard of relevancies and allowing to
be carried away by irrelevancies, giving a
complete go bye to contextual considerations
throwing to the winds the principle of
proportionality in going farther than what
was strictly and reasonably to meet the
situation. In short, the Competent Authority
completely misdirected itself in taking such
an extreme and unreasonable decision of
cancelling the entire selections, wholly
unwarranted and unnecessary even on the
factual situation found too, and totally in
excess of the nature and gravity of what was
at stake, thereby virtually rendering such
decision to be irrational."

31. In the present case as borne out
from the facts unfurled that, only grievance
by few participant was against the use of
Mangal font who claimed that the Stage 2
test be conducted on Kruti Dev II font. The
said claim though has rightly not been
acceded to by learned Single Judge
observing that it is the prerogative of the
employer.