# Ram Surat and others v. The U.P. Public Service Commission and another

- **Citation:** (2001) 2 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-03-28
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-surat-and-others-v-the-u-p-public-service-commission-and-another-39755
- **Pages:** 9

## Text

2All] Ram Surat and others V. The U.P. Public Service Commission and another

17. It is true that the Suit on the
basis of the pronote has been filed for the
recovery of the amount and that Suit was
decreed ex-parte. The plaintiff applied for
setting aside the ex-parte decree. The fact
that the Suit has been filed and decided
ex-parte do not establish that the money
was borrowed by the plaintiff from the
defendant. It may be that this evidence
has been created by the plaintiff to defeat
this
Suite.
It
appears
from
the
circumstance that the suit for this money
on the basis of the pronote dated 4.9.
19733 was filed in the year 1973 itself.
There is no reasonable explanation as to
what was the hurry to file the Suit on the
said pronote as the limitation was for
three years.

18. After considering the entire
circumstance, I am of the opinion that it
has been established that the plaintiff was
ready and willing to perform his part of
contract
at the relevant time. The
execution of the deed of reconveyance is
admitted and, therefore, no other question
arise for decision in this appeal.

19. The appeal, therefore, fails and
is accordingly dismissed. No orders as to
costs.
Petition Dismissed

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84 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
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By the Court

1.

The
U.P.
Public
Service
Commission (hereinafter referred to as
'the commission') initiated the process to
select candidates for appointment to 100
posts of Personal Assistants in U.P.
Secretariat and 3 such posts in the
Commission
by
publishing
an
advertisement
dated
28.3.1999.
The
selection was to be made on the basis of a
competitive examination in two subjects,
namely, Hindi essay of 100 marks and
Hindi Steno-typing of 150 marks. There
was no prescription for interviewing the
candidates and the final selection was to
be made on the basis of th total marks
obtained in the aforesaid two subjects.
The petitioners covered by the above
mentioned four writ petitions are the
persons whose names did not find place in
the result of the successful candidates
declared on 3.3.2000. The petitioners
have assailed the selection process as
being arbitrary and discriminatory. Shorn
of all superfluities, the grounds taken by
the petitioners to challenge the entire
selection process may be categorised
under the following three heads: -

(i) that the selection is against the
provisions made in the advertisement and,
therefore,
the
entire
process
stands
vitiated:

(ii) The method of "scaling" of marks
has been wrongly applied and in any case,
it was wrongly applied only in respect of
one paper, i.e. Hindi essay, while, if at all,
it should have been made applicable in
respect of both the subjects. i.e., Hindi
essay and Steno-typing, and
(iii) 34 women candidates have been
selected
by
applying
unwarranted
reservation
though
it
was
not
contemplated
in
the
original
advertisement.

2. In these writ petitions, under
Article 226 of the constitution of India, it
is prayed that a direction in the nature of
writ of mandamus be issued to the
respondents firstly, not to give effect to
the result in respect of the examination of
the year 1999 held for the recruitment to
the posts of Personal Assistants as
published in the Daily Hindi Newspaper -
'Amar
Ujala'
dated
4.3.2000,
and
secondly, to declare the result of the
Personal Assistants Examination, 1999 to
the basis of original marks secured by the
candidates
including
the
petitioners,
without applying "scaling" system.

3. The selected candidates also
appeared to contest the petitions.

4. On behalf of the Commission -
respondent no.1, a counter affidavit has
been filed by Sri G.C. Upadhyay, Section
Officer, On behalf of the selected
candidates, a counter affidavit, in the
representative capacity, has been filed by
one Ram Lal Maurya. The pleas taken in
both the set of counter affidavits are
almost identical. It is stated that the
selection ahs been made strictly in
accordance with the procedure prescribed
and that the application of scaling system
is a part of the process of selection. It has
2All] Ram Surat and others V. The U.P. Public Service Commission and another

further been averred that in view of the
Government
order
dated
26.2.1999,
reservation
in
respect
of
women
candidates was rightly applied. There is
also assertion that the commission was
duly bound to implement the policy
decision taken by the State Government
for reservation in respect of women
candidates. Rejoinder affidavit ahs also
been filed.

5. Heard Sri Ashok Bhushan, Anil
Bhushan, Awadhesh Rai and S.N. Singh
learned counsel for the petitioners as well
as Sri S.K. Singh for the commission and
Sri
Ashok
Khare,
Senior
Advocate
assisted by S/Sri I.R. Singh and Rakesh
Thapliyal for the selected candidates.

6. Sri Ashok Bhushan, who took the
lead for arguing the case and whose
arguments were adopted by other learned
counsel for the parties, urged that
reservation for women candidates and
scaling system should not have been
applied
by
the
commission
in
the
preparation of the final selection result as
such a course was not contemplated in the
advertisement and consequently the whole
process of selection was vitiated. It was
clarified on behalf of the petitioners that
the selection by the Commission has not
been
held
in
accordance
with
the
conditions
as
stipulated
in
the
advertisement dated 28.3.1999, which
clearly contemplated in condition 16-
(Gha) that the merit list of the selected
candidates will be prepared on the basis
of the marks obtained by them in Hindi
Essay and Steno-Typing. According to Sri
Ashok Bhushan, the commission in its
counter affidavit has admitted that the
system of scaling has been applied in
Hindi Essay paper and the marks of the
candidates have been sealed. According to
Sri Ashok Bhushan, selection by the
commission has not been held on the
terms and conditions as stipulated in the
advertisement. It was pointed out that the
selection made is in violation of the
advertisement will be arbitrary and bad on
the principles as laid down by the apex
court in the case of Ramanna Daya Ram
Shetty Vs. International Airport Authority
- 1979 (3) S.C. - 489. It was further
urged that reservation in favour of the
women
candidates
was
also
not
contemplated by the advertisement and
since there was no compulsion for
effecting
such
a
reservation,
the
Commission has wrongly earmarked 34
posts for women candidates, Emphatic
reliance was also placed on the decision
of the Bombay High Court (Nagpur
Bench)
in
Jayant
Jairam
Rohi
V.
Maharashtra Public Service Commission
- 1986 (20 S.L.R.-159 in which the
advertisement
prescribed qualifications
for appointment to the post of Civil Judge.
It was paid down that those candidates
who have ordinarily practiced in the High
Court or subordinate court for not less
than three years, prescribed in the
advertisement,
shall
be
eligible
for
making an application. Subsequently,
Public Service Commission called for
interview only such persons who had put
in five years of practice. It was in this
context that the Bombay High Court held
that the commission contravened the
statutory rules and travelled beyond the
statutory provisions. On behalf of the
commission, it was argued in that case
that the candidates who have practiced for
a period of five years or more would be
more meritorious and suitable than a
candidate who ahs practiced less than five
years. The court took the view that the
assumption of the commission in this
regard was entirely without any basis. It is
86 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
not
a
secret
that
some
competent
Advocates who have practiced for a
period of three years are far better suited
than an Advocate who ahs merely put in
practice for five years. It was held that it
was not permissible to the commission to
totally eliminate all the candidates who
have practiced three year to five years at
the Bar. The Court further held that the
criteria employed by the Commission had
no relevance, whatever, with the merit of
the candidates and by adopting this new
method
to
determine
as
to
which
candidate should be called for interview,
the Commission has contravened the
statutory rules. It was found that the
selection procedure was against the rules
and the conditions as stipulated in the
advertisement but refused to grant relief
to the petitioners lamenting on the
hardship suffered by them because if the
relief was granted that would have led to
greater complications and more serious
hardship to those who has already been
selected and appointed. There can be no
quarrel about the observations made and
the law laid down in the aforesaid two
decisions. The observations, however,
cannot be taken to be of universal
application and they have to be viewed
and applied in the context of set of facts
in hand.

The advertisement simply provided
that the selection shall be held, or say, the
result shall be declared on the basis of the
marks obtained by the candidates in two
subjects, namely, Hindi Essay and Steno
Typing, Obviously, the advertisement was
silent as to in what manner and by what
method the evaluation of the answer
books is to take place. As a matter of fact,
such a provision could not have been
made
in
the
advertisement
as
the
evaluation of the answer books is made
according to rules and the policy decision
taken by the Commission.

7. Sri S.K. Singh, appearing on
behalf of the Commission pointed out that
application of scaling system is a part of
the process of selection, which is applied
in all the examinations and in all the
papers. It was urged that the commission
has not adopted any novel procedure in
the case of the instant procedure and as a
matter of fact the system of scaling has
been borrowed from the Union Public
Service Commission, which has been
applying the said system in the Civil
Service Examinations as well as other
examinations conducted by it During the
course of arguments, the guidelines with
regard to scaling of the marks means the
moderation of the marks. The system
intends to remove the disparity in
evaluation. A thousand of candidates
appear in a particulars exam nation and
answer books are evaluated by score of
examines who are prone to have different
standards in evaluating the answer books.
In the instant case, the Hindi Essay paper
was examined by as many as 23
examiners. It is common knowledge that
some of the examiners are tough, some
are easy going and the result of this
human tendency or projection is that some
candidates secure high marks in easy
papers and as a result of easy marking and
those,
who
are
comparatively
less
fortunate, may get low marks on account
of tough marking in a tough paper.
Therefore, in order to bring about the
objectively and to eliminate the element
of subjectively, moderation is arrived at in
the marks obtained in general by the
candidates. A mean is adopted from the
score marks after giving allowance to the
standard deviation. The object to apply
the scaling system, therefore, is to
2All] Ram Surat and others V. The U.P. Public Service Commission and another

modulate the marks given by different
examiners in different papers. The scaling
system has traditionally been applied in
written examination and the result is
prepared by adopting the scaling system.
This system is intended to achieve the
merit. The result undisputedly is to be
prepared on the basis of the performance
of the candidates in the examination and
evaluation by some competent examiners.
The method of moderation has some to be
approved by the apex court in its decision
dated 17.7.1986 in C.M.P. No. 1074/86in S.C.A. No. 1547/85-Surjeet Kumar Das
Vs. Chairman Union Public Service
Commission. It was observed that the
system of moderation of marks adopted
and followed by the Union Public Service
Commission
in
evaluating
the
performance of the candidates appearing
for the Civil Services Examination cannot
be said to be vitiated by the arbitrariness
or illegality of any kind.

8. In m guest to reach the truth and
to ascertain as to whether any of the
petitioners
has
been
prejudiced
on
account of the application of the scaling
system, I have waded through the mark
sheets of the selected candidates as well
as unsuccessful candidates, particularly,
the petitioners. The comparative position
of some of the petitioners by way of
illustration emerges as under:
Sl.
No
Name of the
Petitioner
Original
Marks
Marks
Scalin
g
Total
marks
after
adding
marks
in
StenoTyping
Writ Petition No. 1412 of 2000
1.
Ram Surat
40
45
173
2.
P. K. Agarwal
23
37
181
3.
Shatrughan
Singh
48
56
190
4.
Shailendra
Kumar Singh
52
63
206
5.
Dinesh
Chandra
Pandey
53
48
190
Writ Petition No. 19072 of 2000
6.
Ajai Kumar
49
56
186

The above figures indicate that by and
large, the petitioners have not been losers
due to the application of the scaling
system.
Out
of
the
above
seven
candidates, who have been taken for
random survey, six of them were put to an
advantageous position as their original
marks got a boost after scaling. The
successful candidates of the general
category have in total secured 210 or
more marks. The candidates belonging to
other backward class and who have been
successful have secured 204 or more
marks while the candidates belonging to
Scheduled Caste category have secured
200 or more marks to find their names in
the select list. None of the petitioners
have been successful in securing the
minimum target-marks and therefore, they
were
declared
unsuccessful
in
the
examination. The application of the
scaling system has not turned their table.

9. Sri Ashok Bhushan was very
much critical of the fact that the
commission though, has accepted the
scaling system in the paper of Hindi
Essay only and it has deliberately and in
an arbitrary manner failed to apply the
same standard in the case of Steno Typing
paper. The reasons for not doing so are
not too far to seek. There is a striking
distinction in the two sets of subjects,
mainly, Hindi Essay Hindi Steno Typing
papers. The evaluation of Hindi Essay
paper is more or less subjective in nature
depending upon variegated circumstances
and imponderables flowing from the
88 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
nature and human tendency of the
examiner concerned, while in the case of
evaluation of Steno-Typing paper such an
eventuality
would
not
arise
as
its
evaluation can be, in view of the technical
nature of the paper, is supposed to be
objective and almost mathematical. As a
matter of fact, application of scaling
system in the case of Steno Typing paper
would be almost impracticable. Therefore,
the Commission has taken precaution in
the matter by prescribing the mistakes,
which are to be counted in evaluating
Steno Typing paper. An exemption in
mistake committed by a candidate in
Steno Typing test up to five percent as per
rules has been allowed. The Commission
is further vested with the discretionary
power to allow examination up to percent
in mistakes if the circumstances so
warrant. Thus, examination of mistakes
up to 8 percent may be granted and this
fact would be determinative in drawing an
eligibility mark in Shorthand and Typing
test for appointment. There is thus an inbuilt assurance of uniformity in the
system of evaluation of steno typing
paper. It was for this reason that the
scaling system was not applied in the
Shorthand Typing paper.

10. Sri Ashok Bhushan relied on the
decision of the apex court in Raj Kumar
and others Vs. Shaktiraj and others (1997)
9 s.C.C.-52, in which it was observed that
where the procedure of selection and the
exercise of power to exclude the posts
from the purview of the State Service
Selection Board (SSS. .8) Suffered from
glaring
illegalities,
the
candidates
appearing for selection and remaining
unsuccessful
are
not
barred
from
questioning the selection and the principle
of
acquiescence/estoppel
is
not
applicable. His case was on an entirely
different footing. The recruitment of
Patwaris in that case was made under the
Rules of 1995 ignoring the amendment
notified in the year 1970. Reliance on this
decision is misplaced.

11. Sri Ashok Khare, Senior
Advocate appearing on behalf of the
selected candidates pointed out that even
if
the
criterion
adopted
by
the
Commission might be defective, it would
be
inappropriate
for
this
court
to
reallocate the marks as the criteria has
been uniformly applied and no prejudice
ahs been caused to any one of the
petitioners. In support of his contention,
Sri Khare placed reliance on the decision
of the apex court in Haryana Public
Service Commission Vs. Amarjeet Singh
and others - 1999 S.C.C. (L&S)-1451 in
which it was observed that when ujiform
process had been adopted in respect of all
and selection had been made, it was
highly inappropriate for the High Court to
have examined the matter in further detail
and to have allocated the marks with a
view
to
issue
a
direction
to
the
commission
to
select
the
aggrieved
candidates. After having scrutinised the
scaling
system,
which
resulted
in
moderation of the marks of the candidates
who appeared in the examination as well
as the result sheets, find that the
petitioners failed to secure the minimum
target marks and could not be selected
even if the scaling system was not
applied. It is normal human instinct that
when a candidate fails in the recruitment
examination, he is generally prone to
make some wild allegations with a view
to explain his failure with the thought that
not he but the examiners, are to blame.
One can easily understand the anguish of
the petitioners at their failure but this
court has no power to select them. It is in
2All] Ram Surat and others V. The U.P. Public Service Commission and another

the public interest that the result of the
public
examinations
when
published
should have some finality attached to
them.

12. Now it is the time to consider
and examine the other ground taken on
behalf of the petitioners to challenge the
result of the selection. It is stated that 34
women candidates have been illegally
extended the benefit of reservation while
in the advertisement there was no such
stipulation. This submission has been
stated simply to be rejected, the reason
being that the State Government had
issued order no. 18/1/99/ka-2 of 1999
dated 26.2.1999 a copy of which is
Anneure C.A.1 to the counter affidavit of
the commission, issued by the Chief
Secretary
to
all
concerned.
The
Government order provided that 20 of the
posts, which fall within the purview of the
Commission, shall be reserved for women
candidates. The aforesaid Government
order came into force with immediate
effect
though
it
excepted
the
advertisements issued on or before the
said date and process of selection for
which had started prior to 26.2.1999. In
the instant case, the advertisement was
published in Mach 1999. i.e. much after
the issuance of the government order
dated 26.2.1999. The Commission was
duly bound to implement the orders of the
State Government with regard to the
policy
of
reservation.
Accordingly,
horizontal
reservation
for
Women
candidates was rightly applied in the
preparation of the final result. As against
173 posts, which were advertised and for
which final selection was made, 34 posts
were
rightly
reserved
for
women
candidates. The result declared by the
commission cannot, for any reason, be
faulted on account of reservation made
pursuant to the Government order dated
26.2.1999.

13. I am conscious of the fact that
the selection process is not sacrosanct. It
can be cancelled, sorapped or annulled of
there is concrete and reliable evidence of
large
scale
bungling,
mal
practice,
corruption, favouritism and nepotism or
the like or if there is a violation of
fundamental procedural requirements. It
is true that fabrication would obviously
either be not known or no one could come
forward to bear the burnt. Nevertheless,
there should be wealth of material to take
the extreme and drastic step of scrapping
the
whole
recruitment
process,
particularly when it has reached the final
stage. The cancellation or scrapping of the
recruitment has very serious repercussions
and impact not only on the candidates
who have undergone the rigours of the
test but on the general public and the
examining body. In the instant case there
is no allegation on behalf of the
petitioners that the commission has been
guilty of any corrupt practice, nepotism or
favouritism. The only grievance of the
petitioners is that the procedure adopted
was
not
in
consonance
with
the
stipulations made in the advertisement.

14. Sri Ashok Bhushan founded his
submissions on the observations made by
the apex court in Ramanna Daya am
Shetty's case (supra) that it must,
therefore, be taken to be the law that
where the Government is healing with the
public whether by way of giving jobs or
entering into contracts or issuing quotas
or licence or granting other forms of
largesses the Government cannot act
arbitrarily at its sweet will and, like a
private individual to deal with any person
it pleases but its action must be in
90 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
conformity with the standards or norms
which is not arbitrary, irrational or
irrelevant. Sequel to this submission is the
controversy about the extent of power of
the
court
to
interfere
with
the
administrative actions of the examining
bodies. While non-arbitrariness being a
necessary concomitant of the rule of law,
it is umperative that all actions of every
public functionary, in whatever sphere,
must be guided by reason and not
humour,
whim,
caprice or personal
predilections of the person entrusted with
the task on behalf of the State and
exercise of all power must be for public
good instead of being an abuse of the
power (See Km. Srilekha Vidyarthi Vs.
State of U.P. (1991) SCC-212). The
power of judicial review is an integral
part of our Constitutional system. The
Supreme Court has taken the view that if
here is one feature of our Constitution
which, more than any other, is basic and
fundamental
to
the
maintenance
of
democracy and the rule of law, it is the
power of judicial review and it is
unquestionably, part of the basic structure
of the Constitution (1991) 3 S.C.C.-91
G.B. Mahajan and others Vs. Jalgeor
Municipal Council and others; (1991) 4
S.C.C-485-H.C. Suman and others V.
Rehabilitation Ministry and others; (1991)
3 S.C.C-239-U.P. State Road Transport
Corporation Vs. Mohd. Ismail and others;
(1991)1 S.C.J-521-Subhas Sharma Vs.
Union of India- by Hon'ble Rangnath
Misra (ex Chief Justice of India). In the
recent pronouncement, the apex court in
Dadu
alias
Tulidas
Vs.
State
of
Maharahtra - (2001) 9 S.C.C 437, has
held that judicial review "is the heart and
soul of the Constitutional Scheme."

15. It is well settled rule of
administrative law that an executive
authority must be rigorously held to the
standards by which it professes its actions
to be judged and it must scrupulously
observe those standards on pain of
invalidation of an act in violation of them.
Over the years the Supreme Court as well
as High Courts have shown a great deal of
vitality
in
controlling
administrative
discretion of the executive authorities.

16. The parameters of the judicial
review are now firm and well embedded.
In
Km.
Srilekha
Vidhyarthi's
case
(supra), the apex court crystallised the
whole position in the following words: -

"It has been emphasised time and
again that arbitrariness is anathesis to
State action in every sphere and wherever
the vice percolates, the courts would not
be impeded by technicalities to trace it
and strike it down. This is the surest way
to ensure the majesty of rule of law
guaranteed by the Constitution of India."

The
things
as
have
emerged;
the
petitioners have acquired the fundamental
right that they shall not be subjected to
arbitrary,
unfair,
unreasonable
and
irrational action of the Government or its
instrumentalities,
meaning
thereby,
a
citizen has a right that his matters be
considered in a manner, which is nonarbitrary. The State action which defeats
any constitutional mandate and is directly
in violation of the guarantees enshrined in
Article 14 of the Constitution, is per se,
arbitrary.

17. The matter may be viewed from
yet another angle. The apex court, time
and again, has cautioned the High Courts
to approach the cases like the present one
with circumspection. In Bhushan Uttam
Khare Vs. Dean B.J. Medical College,
2All] Dr. M.P. Singh V. The State of U.P. and others

reported in A.I.R. 1992 S.C. - 917 it was
held that in deciding matters relating to
orders
passed
by
authorities
of
educational institutions the court should
normally be very slow to pass orders in its
jurisdiction because matters falling within
the jurisdiction of educational authorities
should normally be left to their decision
and court should interfere with them only
when it thinks that it must do so in the
interest of justice. Earlier in the case of
Maharashtra State Board of Secondary
and Higher Secondary Education end
another Vs. Paritosh Bhupesh Kumar Seth
Etc. - A.I.R. 1984 S.C. - 1543, the
Hon'ble Supreme Court reminded that as
has been repeatedly pointed out the court
should be extremely reluctant to substitute
its own views as to what is wise, prudent
and proper in relation to academic matters
in preference to those formulated by
professional men possessing technical
expertise and rich experience of actual
day to day working of educational
institutions
and
the
departments
controlling them. It will be wholly wrong
for the court to make pedantic and purely
idealistic approach to the problems of this
nature isolated from the actual realities
and grass root problems involved in the
working of the system and unmindful of
the consequences, which would emanate
if a purely idealistic view as opposed to a
pragmatic one were to be propounded.
The above guiding principles of law laid
down by the apex court in a series of
cases with regard to educational matters
are also equally applicable in cases where
examinations are conducted by the public
service
commission
a
constitutional
authority.

18. Here in the instant case, the
interest of justice does not demand in the
absence of any material, whatsoever, that
interference of the court is called for in
the matter. As said above, there has been
a in-built objective criteria for applying
the scaling system which, as said above,
is an integral part of the process of
selection adopted by the Commission.
There is absolutely no ground to annul or
scrap the selection, which has taken place.
The wholly tenuous and feeble grounds
taken by the petitioners to a said the
selection process as well as declaration of
result are not well merited.

19. In the result, all the four writ
petitions fail and are, therefore, dismissed
without any order as to costs.
Petition Dismissed.

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