# Rohit Verma v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 748
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-17
- **Case number:** Service Single No. 20476 of 2019
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rohit-verma-v-state-of-u-p-ors-45793
- **Pages:** 13

## Headnote

C.S.C., Anuj Kudesia, Ashwani Kumar
Agnihotri, Gaurav Mehrotra, Utsav Mishra,
Vinod Kumar Singh

A.
Education/Service
Law
-
Recruitment/Selection
-
U.P.
Higher
Education
Services
Commission
(Procedure for Selection of Teachers)
Regulation, 2014: Regulation 2(m), 6(2);
U.P. Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994:
Sections 3(1), 3(6); Notification No. 47
dated 24.06.2019 issued by U.P. Higher
Education
Services
Commission,
Allahabad; Government Orders dated
25.03.1994
and
30.01.2015
-
The
selection has two stages, viz the written
examination
and
thereafter
interview.
According to Regulation 6(2), candidates have
been called for interview in the ratio of 1:5 by
determining the cut of marks category wise
6 All. Rohit Verma Vs. State of U.P. & Ors. 749
i.e. General, OBC and SC/ ST. The petitioners
of both the writ petitions, though have scored
higher marks than the last candidate in
general category, were not called for interview
in any of the categories for the reason that
they have not fallen within the cut off marks
fixed for the OBC category candidates.

B.
U.P.
Higher
Education
Services
Commission (Procedure for Selection of
Teachers) Regulation, 2014: Regulation
6(2) - Regulation 6(2) says that "as for as
possible", meaning thereby, the ratio could be
more than five times if the situation may so
demand. Regulation 6(2) is flexible and
procedural in nature, which cannot impinge
upon substantial rights provided statutorily i.e.
U.P. Act No. 4 of 1994 and constitutionally.
(Para 36, 37, 42)

C. A relaxation or concession given at
the preliminary stage, cannot have any
relevance in determining the merit of the
candidate
- The vacancies under the
unreserved category are not reserved for
anyone. A candidate belonging to the reserved
category who has scored higher marks than
the last in the merit list of general category,
would be adjusted against the unreserved
vacancy and not against the reserved vacancy,
against which he has applied. (Para 13, 34,
42)

D. Even if there is no rule providing for
short- listing nor any mention of it in the
advertisement calling for applications for
the post, the Selection Body can resort
to a short-listing procedure if there are a
large number of eligible candidates who apply
and it is not possible for the authority to
interview all of them. (Para 24, 42)

E. Regulation 2(m); Press Release dated
17.07.2019 and Office memorandum
dated 09.12.2019 issued by U.P. Public
Service
Commission
-
Harmonious
Construction has to be made reading the
provisions of Regulations, 2014, Section
3(6) of U.P. Act No. 4 of 1994 and
Articles 14 and 16 of the Constitution of
India - By eliminating the reserved category
candidate
with
higher
marks
at
the
intermediate stage itself namely, prior to
interview amounts to final rejection of the
candidature before completion of process of
selection. A reserved category candidate shall
not be debarred from further selection if the
candidate has scored higher marks than cut
off marks fixed for the candidates belonging to
unreserved category called for the interview.
(Para 20, 22, 23, 35, 42)

The memorandum and press release were
held it to be contrary to statutory provisions
U/S. 3(6) of 1994 Act and as was issued after
first part of selection had already taken place,
cannot have any retrospective effect. (Para
22, 38)

Writ Petitions allowed. (E-4)

Precedent followed:

## Text

_Characters 0–39,983 of 42,513. This is a partial read: ask again with offset=39983 for what follows._

748 INDIAN LAW REPORTS ALLAHABAD SERIES
not find any room for taking any other
view except to hold that the appellants
are entitled to reckon the period of workcharged
service
for
purposes
of
computation of ''qualifying service' for
grant of pen- sion. We order accordingly;
allow these appeals and set aside the
impugned orders passed by the High
Court.

8. All necessary and consequential
benefit in terms of the present order will
be paid and granted by the State to the
appellants forthwith and without any
delay."

28. In the present matter, this Court
is of the considered opinion that the case
of petitioner is on much better footing
than
the
petitioners
(work-charged
employees) of Prem Singh (supra) and
their services are liable to be considered
for computation of length of services for
extending the pensionary benefits as in
the present matter, the petitioners have
been appointed on substantive post in
regular capacity and they had rendered
their continuous service and the State
Government had also accorded regular
pay scale and other allowances admissible
to
the
similarly
situated
other
Government
employees,
in
such
a
situation, after the retirement, it cannot be
accepted that the services of petitioners
would come under the Labour Laws,
hence they are not entitled for pensionary
benefit
at
par
with
Government
employees.

29.

The
order
impugned
is
unsustainable and the same is set aside.

30. Consequently, the Writ Petition
is allowed. It is held that the petitioners
are entitled for pension and other benefits
as is admissible to the similarly situated
employees of the State Government from
the date of their superannuation. Let the
admissible benefits be ensured in favour
of petitioners in the light of above
observations within the period of three
months from the date of production of
certified copy of this order.
----------
(2020)06ILR A748
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.06.2020

BEFORE
THE HON'BLE MANISH KUMAR, J.

Service Single No. 20476 of 2019
Connected with
 Service Single No. 19881 of 2019

Rohit Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Girish Chandra Verma

Counsel for the Opposite Parties:
C.S.C., Anuj Kudesia, Ashwani Kumar
Agnihotri, Gaurav Mehrotra, Utsav Mishra,
Vinod Kumar Singh

A.
Education/Service
Law
-
Recruitment/Selection
-
U.P.
Higher
Education
Services
Commission
(Procedure for Selection of Teachers)
Regulation, 2014: Regulation 2(m), 6(2);
U.P. Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994:
Sections 3(1), 3(6); Notification No. 47
dated 24.06.2019 issued by U.P. Higher
Education
Services
Commission,
Allahabad; Government Orders dated
25.03.1994
and
30.01.2015
-
The
selection has two stages, viz the written
examination
and
thereafter
interview.
According to Regulation 6(2), candidates have
been called for interview in the ratio of 1:5 by
determining the cut of marks category wise
6 All. Rohit Verma Vs. State of U.P. & Ors. 749
i.e. General, OBC and SC/ ST. The petitioners
of both the writ petitions, though have scored
higher marks than the last candidate in
general category, were not called for interview
in any of the categories for the reason that
they have not fallen within the cut off marks
fixed for the OBC category candidates.

B.
U.P.
Higher
Education
Services
Commission (Procedure for Selection of
Teachers) Regulation, 2014: Regulation
6(2) - Regulation 6(2) says that "as for as
possible", meaning thereby, the ratio could be
more than five times if the situation may so
demand. Regulation 6(2) is flexible and
procedural in nature, which cannot impinge
upon substantial rights provided statutorily i.e.
U.P. Act No. 4 of 1994 and constitutionally.
(Para 36, 37, 42)

C. A relaxation or concession given at
the preliminary stage, cannot have any
relevance in determining the merit of the
candidate
- The vacancies under the
unreserved category are not reserved for
anyone. A candidate belonging to the reserved
category who has scored higher marks than
the last in the merit list of general category,
would be adjusted against the unreserved
vacancy and not against the reserved vacancy,
against which he has applied. (Para 13, 34,
42)

D. Even if there is no rule providing for
short- listing nor any mention of it in the
advertisement calling for applications for
the post, the Selection Body can resort
to a short-listing procedure if there are a
large number of eligible candidates who apply
and it is not possible for the authority to
interview all of them. (Para 24, 42)

E. Regulation 2(m); Press Release dated
17.07.2019 and Office memorandum
dated 09.12.2019 issued by U.P. Public
Service
Commission
-
Harmonious
Construction has to be made reading the
provisions of Regulations, 2014, Section
3(6) of U.P. Act No. 4 of 1994 and
Articles 14 and 16 of the Constitution of
India - By eliminating the reserved category
candidate
with
higher
marks
at
the
intermediate stage itself namely, prior to
interview amounts to final rejection of the
candidature before completion of process of
selection. A reserved category candidate shall
not be debarred from further selection if the
candidate has scored higher marks than cut
off marks fixed for the candidates belonging to
unreserved category called for the interview.
(Para 20, 22, 23, 35, 42)

The memorandum and press release were
held it to be contrary to statutory provisions
U/S. 3(6) of 1994 Act and as was issued after
first part of selection had already taken place,
cannot have any retrospective effect. (Para
22, 38)

Writ Petitions allowed. (E-4)

Precedent followed:

1. U.P. Power Corporation Ltd. & anr. Vs Nitin
Kumar & 9 ors., 2015 (5) ADJ 417; 2015 (5)
ALJ 162 (Para 10, 11, 25, 40, 41)

2. Lalit Kumar Vs St. of U.P. & anr., Writ-A No.
68706 of 2015 (Para 10, 11, 41)

3. Jitendra Kumar Singh & anr. Vs St. of U.P.
& ors., (2010) 3 SCC, 119 (Para 13, 29, 33)

4. Ajith Kumar . & ors. Vs Renu Kr. & anr.,
(2015) 16 SCC, 778 (Para 14)

5. Vikas Sankhala Vs Vikas Kumar Agarwal . &
ors., (2017) 1 SCC 350 (Para 15)

6. Neeravkumar Dilipbhai Makwana Vs Gujrat
Public Service Commission and Others, (2019)
7 SCC 383; AIR 2019 SC 3149 (Para 16).

7. Sanjeev Kumar Singh Vs State of U.P. . &
ors., 2007 (2) ADJ 150 (Para 23)

8.
The
Secretary,
U.P.
Public
Service
Commission Vs Dr. Shiv Vinayak Tripathi &
anr., Civil Appeal Nos. 4895-4904/2019,
Judgment dated 04.12.2019 (Para 28, 38)

9. B. Ramakichenin Vs U.O.I., (2008) 1 SCC,
362 (Para 24)

10. Sachhida Nand Mishra Vs St. of U.P. . &
ors., Writ Petition No. 6083 (S/S) of 2016,
750 INDIAN LAW REPORTS ALLAHABAD SERIES
Judgment and order dated 10-11-2016 (Para
43)

Precedent distinguished:

1. Deepa EV Vs U.O.I. . & ors., (2017) 12 SCC
680 (Para 28, 39)

2. Government of Andhra Pradesh Vs P. Dilip
Kumar & anr., (1993) 2 SCC 310 (Para 26)

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

1. The controversy involved in both
the aforesaid writ petitions is similar in
nature, therefore, the same is decided by a
common judgment.

2. Under challenge in the writ
petitions i.e. Writ Petition No. 20476
(S/S) of 2019, Rohit Verma Versus State
of U.P. and Others and Writ Petition No.
19881 (S/S) of 2019, Ayush Ranjan
Chaudhary and Another Versus State of
U.P. and Others, is the notification no. 47
dated 24-06-2019 issued by the U.P.
Higher Education Services Commission,
Allahabad
(hereinafter
referred
as
'Commission' in short). By the said
notification the Commission has called
the candidates for interview in the ratio of
1:5 under three categories i.e. General,
OBC and SC/ST as per the cut off marks
determined categorywise as obtained in
the written examination.

3. The petitioners belong to Other
Backward Class category i.e. OBC and
cut off marks determined for the OBC
category candidates called for interview is
130.34 whereas for the general category
candidates, the cut off marks is 103.37.

4. The petitioner in Writ Petition
No. 20476(S/S) of 2019, has secured
125.84 marks whereas the petitioners in
Writ Petition No. 19881(S/S) of 2019
have secured 125.44 and 116.48 marks
respectively in the written examination.

5. The brief facts of the case are that
notification no. 47 was issued by the
Commission inviting applications for
selection on the post of Assistant
Professor in 33 subjects including 273
posts in Sociology bifurcating in three
categories i.e. 167 posts for unreserved
category, 63 posts for OBC category and
43 posts for SC & ST category, which is
the subject matter of the present writ
petitions.

6. Against 167 vacancies of
unreserved category, 838 candidates were
called for interview and the last candidate
called has scored 103.33 marks in the
written
examination.
Against
63
vacancies
for
OBC
Category,
385
candidates were called and the last
candidate has scored 133.34 marks.
Under
the
SC/ST
category,
217
candidates were called for interview
against 43 vacancies and the last
candidate has scored 112.36 marks. The
candidates were called in ratio of 1 :5 in
each category.

7. The selection has two stages, viz
the written examination and thereafter
interview. According to Regulation 6(2)
of the U.P. Higher Education Services
Commission(Procedure for Selection of
Teachers) Regulations, 2014(In short
referred
as
'Regulations,
2014'),
candidates have been called for interview
in the ratio of 1:5 by determining the cut
of marks categorywise i.e. General, OBC
and SC/ST. The petitioners of both the
writ petitions were not called for
interview in any of the categories for the
reason that they have not fallen within the
6 All. Rohit Verma Vs. State of U.P. & Ors. 751
cut off marks fixed for the OBC category
candidates.

8. The grievance of the petitioners is
that the last candidate belonging to
general category, who has obtained
103.37 marks has been called for
interview, who is lower in merit.

9. Sri G.C.Verma and Sri Karunakar
Srivastava, learned counsel for
the
petitioners have submitted that by not
calling the petitioners for the interview,
though, they have scored higher marks
than the general category candidates, the
Commission acted in contravention of
Section 3(6) of the U.P. Public Services
(Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes) Act, 1994 (hereinafter referred as
the U.P. Act No. 4 of Act of 1994).
Sections 3(1) and 3(6) of the said Act
provide as under :-

"Section 3 (1) In public services and
posts, there shall be reserved at the stage
of direct recruitment, the following
percentages
of
vacancies
to
which
recruitment are to be made in accordance
with the roster referred to in sub-section
(5) in favour of the persons belonging to
Scheduled Castes, Scheduled Tribes and
Other Backward Classes of citizens.-

(a) in the case of Scheduled Castes
twenty one percent :

(b) in the case of Scheduled Tribes
two percent :

(c) in the case of Other Backward
Classes of citizens twenty seven per cent :

Provided that the reservation under
clause (c) shall not apply to the category
of other backward classes of citizens
specified in Scheduled II."

"3 (6) If a person belonging to any of
the categories mentioned in sub-section
(1) gets selected on the basis of merit in
an
open
competition
with
general
candidates, he shall not be adjusted
against the vacancies reserved for such
category under sub- Section (1)."

10. In support of abovementioned
contention, learned counsel for the
petitioners have relied upon the Division
Bench Judgment of this court dated 1905-2015 passed in Special Appeal No.
310 of 2015(U.P. Power Corporation Ltd.
And Another Versus Nitin Kumar and 9
Others), which has been followed in Writ
A No. 68706 of 2015 (Lalit Kumar
Versus State of U.P. and Another).

11. Submission of learned counsels
for the petitioners is that case of the present
petitioners is squarely covered by the
Judgment of this court in the case of Lalit
Kumar (Supra) and U.P. Power Corporation
Ltd.(Supra).

12. Learned counsels have further
submitted that the State Government has
issued a Government Order dated 25-031994. Para 4 of the said Government Order
provides that if any candidate belonging to
reserved category is selected with the
general category candidates in an open
selection, then he/she shall not be adjusted
against the vacancies reserved for reserved
category candidates, meaning thereby, such
reserved category candidate shall be treated
to be migrated against the unreserved
vacancy though the reserved category
candidates appeared in the selection after
taking benefit of relaxation admissible to
the candidates belonging to reserved
category. Para 4 of the Government Order
dated 25-03-1994 reads as follows :-

ß1⁄441⁄2 ;fn vkjf{kr Js.kh ls lEcfU/kr dksbZ
O;fDr ;ksX;rk ds vk/kkj ij [kqyh izfr;ksfxrk esa
752 INDIAN LAW REPORTS ALLAHABAD SERIES
lkekU; vH;fFkZ;ksa ds lkFk p;fur gksrk gS rks mls
vkjf{kr fjfDr;ksa ds izfr lek;ksftr ugha fd;k
tk;sxk vFkkZr~ mls vukjf{kr fjfDr;ksa ds izfr
lek;ksftr ekuk tk;sxk] Hkys gh mlus vkjf{kr oxZ
ds vH;fFkZ;ksa dks vuqeU; fdlh lqfo/kk ;k NwV 1⁄4;Fkk
vk;q lhek esa NwV vkfn1⁄2 dk miHkksx fd;k gksAÞ

13. Learned counsel for the
petitioners have further contended that on
30-01-2015, another order has been
issued by the state government for strict
compliance of provisions of Section 3(6)
of U.P. Act No. 4 of 1994. In support of
their submissions, they have also placed
reliance on the Judgment of the Apex
Court in the case of Jitendra Kumar Singh
and Another Versus State of U.P. and
Others, reported in 2010(3) SCC,119. In
this case, the issue before the Apex Court
were with regard to filling up of the
general category posts by the candidates
belonging to reserved category on their
obtaining more marks than the last
candidate in the general category. The
Apex Court held that the submission of
learned
counsels
for
the
petitioners/appellants is not accepted that
the reserved category candidate having
availed relaxation of age are disqualified
for open category seat.

14. Another Judgment of the Apex
Court, which has been relied upon by
learned counsels for the petitioners is
Ajith Kumar & Others Vs Renu Kr. and
Others, reported in 2015 (16) SCC,778. In
this case, the Apex Court held that once a
candidate appears in the examination
pursuant to a concession granted by the
Service Commission, cannot be treated as
less meritorious candidate who are
entitled to be appointed to open category
post even though having obtained higher
marks. The Apex Court held that a
relaxation or concession given at the
preliminary stage, cannot have any
relevance in determining the merit of the
candidate.

15. The other Judgment of the Apex
court, on which the learned counsels for
the petitioners have placed reliance is
Vikas Sankhala Versus Vikas Kumar
Agarwal and Others, reported in (2017)1
SCC 350. In this case also, relaxation of
5% marks was made in favour of the
reserved category candidates for passing
TET test by the NCTE. The same issue
had
again
cropped
up
that
once
concession has been taken, that candidate
shall not be at par with the general
category candidates. The Court framed
three issues, which are quoted below :-

i. Whether the policy of the State as
reflected in its letter dated March 23,
2011 deciding to give relaxation ranging
from 10% to 20% in TET marks to
different
reserved
categories
as
mentioned therein is valid in law?

ii. Whether NCTE notification dated
July 29, 2011, which amends paragraph 3
of its earlier guidelines/notification dated
February
11,2011,
provides
5%
relaxation to the reserved category to
passing TET?

If so, whether it would be applicable
to the reserved categories in the State of
Rajasthan as well?

iii.
Whether
reserved
category
candidates, who secured better than
general
category
candidates
in
recruitment examination, can be denied
migration to general seats on the basis
that they had availed relaxation in TET?

Learned counsels for the petitioners
have relied upon the answer to Issue No.
3 which has been dealt with in Para 63(B)
of the Judgment, which is quoted
hereinbelow
:-
6 All. Rohit Verma Vs. State of U.P. & Ors. 753

63(b) Migration from reserved
category to general category shall be
admissible to those reserved category
candidates who secured more marks
obtained by the last unreserved category
candidates who are selected, subject to
the condition that such reserved category
candidates did not avail any other special
concession. It is clarified that concession
of passing marks in TET would not be
treated as concession falling in the
aforesaid category.

16. Similar issue has been dealt with
by the Apex Court by its Judgment dated
04-07-2019 passed in Civil Appeal No.
5185 of 2019(Arising out of S.L.P.(Civil)
No.
3938
of
2018,
Neeravkumar
Dilipbhai Makwana Vs. Gujrat Public
Service Commission and Others, whether
a reserved category candidate, who has
availed of age relaxation can thereafter
seek to be accommodated in or migrated
to the general category seat, the Apex
Court replied in affirmative in favour of
reserved category candidate.

17. Sri Vivek Shukla, learned
counsel for the opposite parties no. 2 & 3
i.e. Uttar Pradesh Higher Education
Service Commission, on the other hand,
has vehemently opposed the submissions
made on behalf of the petitioners. He has
submitted that Section 3(6) of U.P. Act
No. 4 of 1994 provides for "get selected
on the basis of merit in an open
competition". In the present case, the
selection has yet not been completed. The
selection would be completed only after
the interview and hence, any migration
from the reserved seat to unreserved seat
is permissible only after completion of the
selection but in the intermediate stage,
migration is not permitted.

18. Learned counsel for the opposite
parties no. 2 & 3 has further relied upon
Regulation 6(2) of the Regulations 2014,
which is quoted as under :-

"6. The commission shall scrutinize
the applications and conduct the written
examination and interview of eligible for
the post of lecturer and principal.

i. Written examination for the post of
lecturer shall consist one objective type
question papers (General Knowledge and
related optional subjects of fix marks-
2000 (60+140) and for interview 30
marks. Final merit list shall be prepare
on the basis of marks obtained on both)
(200+30).

ii. Selection for the post of Principal
based
on
a
written
examination.
Academic Performance Indicator (API)
marks and interview. Written examination
consist one objective question paper
comprising
General
Knowledge
and
administrative aptitude test of fix marks
(30+70) 100 marks. For API 50 marks
which
shall
be
allotted
by
the
Commission's guideline based on U.G.C.
norms. For Interview fixed 20 marks.

(2) The number of candidates to be
called for interview as for as possible, be
between three to five, the vacancies
advertise
as
the
Commission
may
consider proper. All within cut off marks
shall be called for interview."

19. According to the learned counsel
for the respondents, the candidates have
been called for interview as per the
statutory provisions in the ratio of 1:5 by
determining cut off marks categorywise
i.e. General, OBC and SC/ST.

20. Learned counsel for the opposite
parties no. 2 & 3 has further relied upon
754 INDIAN LAW REPORTS ALLAHABAD SERIES
the definition of selection as provided in
Regulation 2(m) which is quoted below :-

2(m) "Selection" means selection of
candidate
finally
after
written
examinations and interview, in pursuance
of Advertisement already made." He has
also placed reliance on Regulation 6 of
the Regulations,2014, where it has been
provided that "Final result declared to
the marks of written examination and
interview."

21. Learned counsel for the
respondents has drawn attention of this
court to the Press Release made by the
Commission on 17-07-2019, which is
quoted below :-

Þ;g Hkh Li"V djuk gS fd fyf[kr ijh{kk
lEiw.kZ p;u izfdz;k dh ,d chp dh dM+h gS ftlesa
vH;fFkZ;ksa dks ek= lk{kkRdkj gsrq vkeaf=r fd;k x;k
gSA /;krO; gS fd fyf[kr ijh{kk dk ifj.kke p;u
ugha gksrk gS] vk;ksx }kjk fyf[kr ijh{kk esa izkIr
vadksa ds vk/kkj ij fofu;ekoyh&2014 ds fcUnq&61⁄421⁄2
lk{kkRdkj ds i'pkr~ lQy vH;fFkZ;ksa ds 1⁄4fyf[kr
ijh{kk $ lk{kkRdkj1⁄2 izkIr vadksa dh lesfdr esfjV
lwph ds vk/kkj ij mRRkj izns'k yksd lsok 1⁄4vuqlwfpr
tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZa
ds fy, vkj{k.k1⁄2 vf/kfu;e&1994 ds fcUnq&31⁄461⁄2 ds
rgr vU; fiNM+k oxZ] vuqlwfpr tkfr ,oa vuqlwfpr
tutkfr ds vH;FkhZ vukjf{kr (Unreserved)
lkekU; Js.kh esa p;fur fd;s tk ldsaxsAß

22. The learned counsel has further
relied upon an office memorandum which
has been issued by the U.P. Public Service
Commission on 09-12-2019,wherein it has
not been provided that if any candidate has
taken benefit of any qualified standard, then
that
candidate
is
entitled
for
migration/adjustment in the open category
at the stage of final selection. Copy of the
said
Office
Memorandum
has
been
enclosed with the written submissions filed
on behalf of the opposite parties no. 2 & 3.

23. The learned counsel for the
respondents has placed reliance on para 52
of the Judgment in the case of Sanjeev
Kumar Singh Versus State of U.P. and
Others, reported in 2007(2) ADJ 150,
wherein it has been held that ex-facie and
undoubtedly, at the time of final select list,
Section 3(6) of Act of 1994 would be
applicable and if a reserve category
candidate has secured marks more than a
last general category candidate, he is
entitled to be selected against unresreved
seat without being adjusted against a
reserved seat. Even, the said judgment is
not of any help to the opposite parties no. 2
& 3, the reason being that in the same
paragraph, it has been provided that all the
candidates securing 50% marks and more in
the preliminary qualifying written test
participated in the physical test irrespective
of the number of candidates qualifying
against individual category. The standard of
selection is common to all, whereas in the
present writ petitions, the petitioners have
been debarred from interview despite the
fact that they have secured more marks in
the written test than the candidates who
were called for the interview belonging to
unreserved category.

24. Learned counsel has further
submitted that the method of shortlisting
can validly be adopted by the selection
body even in the absence of any rule or
regulation
and
in
support
of
his
contention, he has also relied upon the
Judgment of the Apex Court in the case of
B.Ramakichenin Vs Union of India,
reported
in
2008(1)SCC,362.
For
convenience, para nos. 15,16 & 17 of the
said Judgment are quoted below:-

"15. It is well settled that the method
of short- listing can be validly adopted by
the Selection Body vide Madhya Pradesh
6 All. Rohit Verma Vs. State of U.P. & Ors. 755
Public Service Commission vs. Navnit
Kumar Potdar and another 1994 (6) SCC
293 (vide paras 6, 8, 9 and 13),
Government of Andhra Pradesh vs. Dilip
Kumar and another 1993 (2) SCC 30, etc.

16. Even if there is no rule providing
for short- listing nor any mention of it in
the advertisement calling for applications
for the post, the Selection Body can resort
to a short-listing procedure if there are a
large number of eligible candidates who
apply and it is not possible for the
authority to interview all of them. for
example, if for one or two posts there are
more than 1000 applications received
from eligible candidates, it may not be
possible to interview all of them. In this
situation, the procedure of short-listing
can be resorted to by the Selection Body,
even though there is no mention of shortlisting
in
the
rules
or
in
the
advertisement.

17. However, for valid short-listing
there have to be two requirements

(i) It has to be on some rational
and objective basis. For instance, if
selection has to be done on some post
for
which
the
minimum
essential
requirement is a B.Sc. degree, and if
there are a large number of eligible
applicants, the Selection Body can
resort to short-listing by prescribing
certain minimum marks in B.Sc. and
only those who have got such marks
may be called for the interview. this can
be
done
even
if
the
rule
or
advertisement doe not mention only
those who have the aforementioned
minimum marks, will be considered or
appointed on the post. Thus the
procedure of short-listing is only a
practical via- media which has been
followed by the courts in various
decisions since otherwise there may be
great difficulties for the selecting and
appointing as they may not be able to
interview hundreds and thousands of
eligible candidates;

(ii) If a prescribed method of shortlisting has been mentioned in the rule or
advertisement then that method alone
has to be followed."

25. Learned counsel for the
respondents has submitted that the
selection is as per Regulations, 2014.
The petitioners have neither challenged
the
relevant
provisions
of
Regulations,2014
nor
the
Office
Memorandum
issued
by
the
Commission. He has further contended
that the the Judgments relied upon by
the learned counsel for the petitioners
are not applicable in the present case for
the reason that the Judgment in the case
of U.P. Power Corporation Ltd.(Supra),
there was no Regulation, whereas in the
present case, the Regulations are in
existence providing the procedure and
defining the selection.

26. As far as the other Judgment in
the case of Government of Andhra
Pradesh Versus P.Dilip Kumar and
Another, reported in 1993(2)SCC310,
is
also
not
applicable,since
the
provisions are different.

27. On the other hand, learned
counsel namely Sri Anuj Kudesia, Sri
Gaurav
Mehrotra
and
Sri
Satendra
Tripathi, who have moved impleadment
applications on behalf of the unreserved
category candidates, their impleadment
applications have already been allowed
by this court by its order dated 02-062020 have submitted that the petitioners
have not approached this court with clean
hands by making concealment in not
disclosing that they have appeared in the
756 INDIAN LAW REPORTS ALLAHABAD SERIES
examination by taking relaxation of 5%
marks in post graduation as admissible to
OBC category candidates. Sri Anuj
Kudesia, Advocate, with the affidavit has
also enclosed the copy of the form of Sri
Rohit Verma, showing that he has scored
50% marks in Post Graduate and by
taking advantage of relaxation of 5%
marks, he became eligible to participate
in the selection, since eligibility is 55%
marks in the post graduation. It has
further been contended that the petitioners
have participated in the selection as an
OBC Category candidates by taking
relaxation and hence, cannot be treated at
par with the candidates belonging to
unreserved category.

28. Sri Anuj Kudesia, learned
counsel has relied upon the Judgment of
the Apex Court in the case of Deepa EV
Versus Union of India & Ors, reported
in [2017(12)SCC,680 and the Judgment
dated 04-12-2019 passed by the Apex
Court in the case of The Secretary, U.P.
Public Service Commission Versus Dr.
Shiv Vinayak Tripathi and Another.

29. Learned counsel after arguing at
some length, have failed to dispute the
law laid down in the case of Jitendra
Kumar Singh (Supra) and very fairly
accepted that in the present case,
Judgment in the case of Jitendra Kumar
Singh(Supra) is applicable.

30. Sri Anuj Kudesia, learned counsel
has further contended that the petitioners on
the basis of assumption disclosed their
marks in the writ petitions and there is no
official declaration of the result of the
written examination by the Selection
Service Commission but it is found that the
marks said to be obtained by the petitioner
were not disputed in the Counter Affidavit
filed on behalf of opposite parties no. 2 & 3.

31. Sri Karunakar Srivastava, learned
counsel for the petitioners in Writ Petition
No. 19881 (S/S) of 2019, has filed a
Supplementary Affidavit disclosing therein
that the petitioners in his writ petition have
scored more than 55% marks in post
graduation
and
in
support
of
his
contentions, he has enclosed copy of the
form. On being asked learned counsel
representing the opposite parties no. 2 & 3
(U.P.
Higher
Education
Service
Commission), as to whether they want to
file any objection/reply, the learned counsel
representing the Commission has stated that
no reply is required and the documents are
on record.

32. After hearing learned counsels for
the parties, it is found that it is not disputed
that if a candidate belonging to reserved
category scores higher marks than a
candidate belonging to unreserved category,
then the reserved category candidate would
be migrated against the seats/posts of
unreserved category irrespective of having
taken any concession, as laid down in
various Judgments of this court as well as
of the Apex Court. To adjudicate the
controversy in the present writ petition, the
following
questions
crop
up
for
consideration :-

(I) In a case, where the benefit of
reservation
is
provided
to
certain
categories, will it be permissible to
shortlist the candidates categorywise and
prepare a separate lists of each category
of candidates, namely General, OBC and
SC/ST.

(II) Can a candidate in the reserved
category be migrated to the list of
6 All. Rohit Verma Vs. State of U.P. & Ors. 757
candidates of unreserved category on the
basis of his merit ?

(III) At what stage of the process of
recruitment, list of candidates on merits,
so as to be called for interview is to be
prepared particularly in reference to the
provisions contained in Regulations,2014
?.

33. It has been held by the Apex
Court in the case of Jitendra Kumar
(Supra) that the competition would start
only at a stage when all the persons who
fulfill
all
the
requisite
eligibility
qualification,age
etc.
are
shortlisted.
Relevant extract of the said Judgment is
quoted below:-

"17.
.........However,
after
the
promulgation of the 1994 Act and
issuance of the Instructions dated 25th of
March, 1994, the State Government has
not treated relaxation in age and fee as
relaxation in the standard of selection.
Therefore, even if a candidate has availed
concession in fee and or age limit, it
cannot be treated to be relaxation in
standard of selection. Therefore, it would
not deny a reserved category candidate
selection in Open Competition with
General
Category
candidates.
Such
concessions can be granted by the State
under Section (8)1 of the Act. The
Division Bench has also held that a
relaxation in age and concession in fee
are provisions pertaining to eligibility of
a candidate to find out as to whether he
can appear in a competitive test or not
and by itself do not provide any indicia of
open competition. The competition would
start only at a stage when all the persons
who fulfill all the requisite eligibility
qualification, age etc. are short listed.
The
candidates
in
the
zone
of
consideration entering the list on the
basis of aforesaid qualifications would
thereafter participate in competition and
open
competition
would
commence
therefrom. Therefore, concession granted
under Section 8 would not disentitle a
reserved category candidate of the benefit
under Section 3 sub-Section (6)."

"49. In any event the entire issue in
the present appeals need not be decided
on the general principles of law laid
down in various judgment as noticed
above. In these matters, we are concerned
with the interpretation f the 1994 Act, the
instructions dated 25.03.1994 and the GO
dated 26.02.1999. The controversy herein
centres around the limited issue as to
whether an OBC who has applied
exercising his option as a reserved
category
candidate,
thus,
becoming
eligible to be considered against a
reserved vacancy, can also be considered
against an unreserved vacancy if he/she
secures more marks than the last
candidate in the general category."

34. It is also clear that under the law
a reserved category candidate has right to
be considered against both the vacancies
i.e. vacancies available for general
category candidates depending upon his
merit
and
the
reserved
category
candidates. The vacancies under the
unreserved category are not reserved for
anyone. A candidate belonging to the
reserved category who has scored higher
marks than the last in the merit list of
general category, would be adjusted
against the unreserved vacancy and not
against the reserved vacancy, against
which he has applied.

35. If the submissions made on
behalf of the opposite parties no. 2 & 3
are accepted then at the intermediate
stage, the reserved candidate though
758 INDIAN LAW REPORTS ALLAHABAD SERIES
having scored higher marks in the written
examination cannot be migrated to the
unreserved category candidates, who have
scored lesser marks, it would then lead to
illegality and discrimination for the
reasons that firstly; the merit will be
compromised whereas it is the very basis
of selection, secondly;, by eliminating the
reserved category candidate with higher
marks at the intermediate stage itself
namely, prior to interview amounts to
final rejection of the candidature before
completion of process of selection,
thirdly; if the migration from reserved to
unreserved category is not permitted at
the intermediate stage i.e at the interview
stage, then how the categorization has
been made at the intermediate stage
fourthly; if contention of learned counsel
representing the opposite parties no. 2 &
3 is accepted, then very purpose of the
legislation of Act No. 4 of 1994
particularly, Section 3(6) would be
frustrated and would become redundant.

36. The contention made on behalf
of opposite parties no. 2 & 3 is that the
selection is proceeded as per Regulation
6(2), which provides that number of
candidates to be called for interview
would be 3 to 5 times of the vacancies
advertised, as stated in the Counter
Affidavit, is also not acceptable for the
reason that Regulation 6(2) says that "as
for as possible", meaning thereby, the
ratio could be more than five times if the
situation may so demand.

37. Regulation 6(2) is flexible and
procedural in nature, which cannot
impinge upon substantial rights provided
statutorily i.e. U.P. Act No. 4 of 1994 and
constitutionally. Again Regulation 6(2)
does not put any limitation as stated in the
Counter Affidavit as a reason not
extending the zone of consideration and
try to justify their arguments.

38. Contention of learned counsel
for the opposite parties no. 2 & 3 is that
for limitation of extending the zone of
consideration by increasing the ratio is
also against the law laid down by the
Apex court. In support of their contention
for shortlisting, relied upon a decision
which rather held otherwise in the case of
Dr. Shiv Vinayak Tripathi (Supra). The
facts of the case were that in order to
shortlist the candidates, the screening test
was conducted by the appellants in terms
of the resolution and the ratio of 1:3 was
applied, for the next stage of selection
process which was in intermediate stage.
The Selection Service Commission had
increased the ratio from 1: 3 to 1: 12 as
for as the OBC candidates are concerned
for calling the OBC category candidates
obtaining the equal marks belonging to
general category candidates. The said
action was challenged and controversy
had reached upto the Apex Court. The
Apex Court held that there is no illegality
or invalidity in such exercise of power by
the Commission for the reason that as per
the well settled law that a person
belonging to reserved category, entitled to
be considered against the unreserved post,
such person has to be firstly absorbed
against the post of unreserved category.

The reliance placed upon press
release dated 09/02/2019 has no value,
whatsoever,
so
as
to
deserve
consideration. On the face of it, it is
contrary to statutory provisions under
section 3(6) of 1994 Act. Again it has
been issued after first part of selection has
already been taken place. It cannot have
any retrospective effect after the selection
has started and completed in parts. This
6 All. Rohit Verma Vs. State of U.P. & Ors. 759
press
release
does
not
help
the
respondents.

39. Judgment in the case of Deepa
EV(Supra)
relied
upon
by
learned
counsel, Sri Anuj Kudesia and Sri Gaurav
Mehrotra is not applicable in the present
case though the issue is same as
mentioned in para 4 of the said Judgment,
which reads as follows :-

"4. The appellant, who has applied
under OBC category by availing age
relaxation
and
also
attending
the
interview under the "OBC category"
cannot claim right to be appointed under
the General category."

The Apex Court in para 8 of the said
Judgment held as under :-

"8. The learned counsel for the
appellant mainly relied upon the judgment
of this Court in Jitendra Kumar Singh v.
State of U.P., which deals with the U.P.
Public Services (Reservation for Scheduled
Castes, Scheduled Tribes and Other
Backward
Classes)
Act,
1994
and
Government Order dated 25.03.1994. On a
perusal of the above judgment, we find that
there is no express bar in the said U.P. Act
for the candidates of SC/ST/OBC being
considered for the posts under general
category. in such facts and circumstances of
the said case, this Court has taken the view
that the relaxation granted to the reserved
category candidates will operate a level
playing field. In the light of the express bar
provided under the proceedings dated
01.07.1998 the principle laid down in
Jitendra Kumar Singh cannot be applied to
the case in hand."

In these circumstances, the Judgment
in the case of Deepa EV(Supra) does not
support the contention of learned counsels
rather it cuts against their own argument.

40. Contention of learned counsel
representing the opposite parties no. 2 & 3
that the Judgment in the case of U.P. Power
Corporation
Ltd.
(Supra),
is
not
applicable for the reason that the U.P.
Power Corporation Ltd. has no Regulations
like Regulations, 2014. The said contention
is not acceptable, since it is wholly
immaterial whether such Regulation exits
or does not exist particularly in view of
provisions u/s 3(6) of 1994 Act and the
principle of equality in the matter of
selection on merit.

41. Judgment of Division Bench of
this court in the case of U.P. Power
Corporation
Ltd.
(Supra)has
been
followed by this court in the case of Lalit
Kumar (Supra).

42. In view of the discussions held
above, the questions as framed are replied
accordingly as follows :-

(1) Shortlisting of the candidates
categorywise is permissible with or
without any such provision.

(2) Yes, the candidates after short
listing, participated in the open selection
alongwith the candidates belonging to
unreserved category if scored higher
marks then they shall be migrated to the
unreserved category vacancies according
to the merit and if necessary the ratio of
candidates can be increased against the
number of vacancies more particularly in
view of flexibility provided in Regulation
6(2)
of
Regulation
2014
or
even
otherwise.

(3) By eliminating the reserved
category candidate with higher marks at
the intermediate stage itself namely, prior
760 INDIAN LAW REPORTS ALLAHABAD SERIES
to interview amounts to final rejection of
the candidature before completion of
process of selection. Regulations 2014
cannot be read in contravention of
provision of an Act and the Constitution.
A harmonious construction has to be
made
reading
the
provisions
of
Regulations,2014, Section 3(6)of U.P.
Act No.