# State of U.P. & others v. Ramagya Chaubey

- **Citation:** High Court of Judicature at Allahabad #39720
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-12-03
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-others-v-ramagya-chaubey-39720
- **Pages:** 5

## Text

1ALL] State of U.P. & others V. Ramagya Chaubey 23
shifting rakes place only when the initial
burden is discharged. Therefore, it is for the
plaintiff to establish his case by discharge of
the initial burden and take advantage of the
shifting of onus in the absence of written
statement. But then it is for the plaintiff to
ascertain the facts establishing his right or
entitlement to the relief even though there
may not be a written statement.

13. The above view may find support in
the decision in Prem Daya Srivastava v. Moti
Chand Lal (AIR 1982 NOC 33 (Au), to the
extent that non-filing of written statement
does not ipso facto entitle the plaintiff to a
decree.

14. Thus it appears that the court had
proceeded
illegally
and
with
material
irregularity in decreeing the suit ex-parte on
the ground as mentioned in Rule 10 of Order
VIII of the Code, which is applicable by
reason of Section 17 of the Provincial Small
Cause Courts' Act as well as on the ground of
merit of the case itself referring to the
statements made by the plaintiff to support the
plaint case in order to entitle him to the relief
prayed for. Therefore, the order dated 3rd
December, 1999 is liable to be set aside and is
hereby, set aside accordingly.

15. The revision is allowed. The learned
trail court shall proceed with the suit as
expeditiously
as
possible
after
giving
opportunity to the revisionists to file their
written statement. The revisionists shall file
their written statement within one month from
this date. Mr. Ganguly submits that his client
will not seek unnecessary adjournments. This
order is subject to the condition that the
revisionists shall go on depositing the rent
month by month at the rate of Rs.2,000/-per
month from the month of January,2000
onwards payable on 15th of the succeeding
month subject to the result of the suit. So far
as the arrears is concerned, the revisionists
shall deposit the sum of Rs.25,000/- within a
period of three months from today. In default
of any of the above conditions, this order shall
stand recalled. If the said amount is deposited,
in that event, the court will proceed to
disposed of the case accordingly, as early as
possible. The opposite party shall be entitled
to withdraw the sum of Rs.25,000/- as well as
the monthly deposited in the learned trial
court.
However,
he
will
furnish
an
undertaking in the learned trial court that in
case the rate of rent and the arrears is decided
otherwise, in that event, he will refund the
excess amount to the revisionists after
forthwith after the decree is passed. No cost.

16. Let a copy of this order be issued to
the learned counsel on payment of usual
charges within 7 days.
Revision Allowed.

$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$' 129
 129
%()25(
%()25(
7+( +21·%/( 1. 0,75$ &-
7+( +21·%/( 1. 0,75$ &-
7+( +21·%/( 65 6,1*+ -
7+( +21·%/( 65 6,1*+ -

6SHFLDO $SSHDO 1R RI

6WDWH RI 83 RWKHUV
«$SSHOODQWV
9HUVXV
5DPDJ\D &KDXEH\
«5HVSRQGHQWV

&RXQVHO IRU WKH $SSHOODQWV
6&
&RXQVHO IRU WKH 5HVSRQGHQWV
6UL &% <DGDY

&RQVWLWXWLRQ
RI
,QGLD

$UWLFOH

5HFUXLWPHQW RQ WKH SRVW RI 6XE ,QVSHFWRU
DGYHUWLVHPHQW VSHFLILFDOO\ SURYLGHG D ERXW
SDUWLFLSDWLRQ LQ LQWHUYLHZ RI RQO\ WKRVH ZKR
KDYH VHFXUHG PD[LP DJJULJHDWH PDUNV LQ
ZULWWHQ
WHVW
SHWLWLRQHU
REWDLQHG
KLJKHVW
PDUNV EXW GHQLHG IRU LQWHUYLHZ RQ WKH SHU
WH[W DV KDV QRW REWDLQHG PDUNV LQ HYHU\
SDSHU VXEMHFW +HOG LOOHJDO
+HOG
,Q WKH DEVHQFH RI DQ\ VWDWXWRU\ UXOHV WKH
UHFUXLWPHQW KDV WR EH JRYHUQHG E\ ZKDW LV
SURYLGHG LQ WKH DGYHUWLVHPHQW SXUVXDQW WR
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
24
ZKLFK WKH UHFUXLWPHQW LV VRXJKW WR EH PDGH
7KH DGYHUWLVHPHQW LQ WKH SUHVHQW FDVH DV
DOUHDG\ QRWLFHG FOHDUO\ SRVWXODWHV WKDW RQO\
WKRVH FDQGLGDWHV VKRXOG EH TXDOLILHG IRU
LQWHUYLHZ
ZKR
KDYH
VHFXUHG
PD[LPXP
PDUNV LQ WKH ILQDO ZULWWHQ H[DPLQDWLRQ ,W
QRZKHUH SUHVFULEHV DQ\ PLQLPXP PDUN LQ
WKH
DJJUHJDWH
RU
DQ\
PLQLPXP
LQ HDFK
VXEMHFW
LH
LW
QRZKHUH
SURYLGHV
WKDW
FDQGLGDWHV ZLOO KDYH WR VHFXUH PDUNV LQ
HDFK VXEMHFW DQG LQ WKH DJJUHJDWH LQ
RUGHU WR EH DEOH WR PDNH ZD\ IRU LQWHUYLHZ
7KHUHIRUH
WKH
DFFRUGLQJ
WR
WKH
DGYHUWLVHPHQW WKH FULWHULRQ IRU FDOOLQJ WKH
FDQGLGDWHV
IRU LQWHUYLHZ LV WKH PHULW WR EH
GHWHUPLQHG LQ WKH EDVHV RI WRWDO DJJUHJDWH
PDUNV
REWDLQHG
LQ
WKH
ILQDO
ZULWWHQ
H[DPLQDWLRQ $FFRUGLQJO\ QR H[FHSWLRQ FDQ
EH WDNHQ WR WKH YLHZ WDNHQ E\ WKH OHDUQHG
6LQJOH -XGJH SDUD
FDVH ODZ GLVFXVVHG
AIR 1965 .SC -77
M.P. 1986 L.I.C. 1990
(1994) 1SCR 165 =AIR 1973.S.C.-2216
AIR 1988- SC. 162

By the Court

1. The above three appeals are knit
together by common questions of law and fact
and hence for convenience sake, they have
been taken up for disposal by a composite
judgment.

2. Special Appeal nos. 240 of 99 and 410
of 99 stem from an order of the learned Single
Judge thereby allowing Civil Misc. Writ
Petition No. 44649 of 1993 on the lines of
judgment rendered in Civil Misc. Writ
Petition No. 24976 of 1993, Ramagya
Chaubey v. State of U.P. and Ors validity of
which has come to be canvassed in Special
Appeal No. 387 of 1998. The disputation
pertains to recruitment to the posts of Sub
Inspector Civil Police, numbering 630- 570
(male) and 60 (female) vide advertisement
dated 4.10.91 (annexed as Annexure-1 to the
affidavit in support of the stay application) as
amended vide notification dated 26.10.1991.
According to the initial advertisement, 525
vacancies were publicised out of which 475
were ear-marked for male candidates and 50
for
female
candidates
but
the
initial
advertisement was subsequently modulated
which made an accretion of 105 more
vacancies as a consequence of which the
number of vacancies to be filled by male and
female candidates rose to as high as 570 and
60 respectively. It brooks no dispute that the
recruitment is not circumscribed within any
statutory service rules and as per the
advertisement, it was to be made on the basis
of
written
examination
preceded
by a
preliminary test which was held on 28.6.1992
and by physical test held between 4th Jan. and
9th Jan 1990. In all 36353 candidates applied
for recruitment to the posts in question but as
a result of screening by means of preliminary
examination
and
physical
test,
4649
candidates appeared in the final examination
the result of which was declared on 19.7.93.
The
final
examination
culminated
in
qualifying 723 candidates for interview (viva
voce) test. The respondents in the two appeals
secured enough marks in the aggregate in the
final written examination but they were
reckoned out of consideration for interview
due to the reason that they failed to secure
40% marks in one of the subjects. As a sequel
to it, the respondents invoked the jurisdiction
of this Court under Art. 226 for the relief of a
mandamus commanding the respondents to
declare them successful for the posts of Sub
Inspector, Civil Police on the premises that
according to the advertisement, it was not
essential for the candidates to secure 40%
marks in each subject in order to qualify for
interview. The learned Single Judge held the
view that the result of the final examination
was to be declared on the basis of total
aggregate marks irrespective of whether a
candidate had secured 40% marks in each
subject or not and accordingly, allowed the
petition directing the appellants herein to
declare the result of the writ petitioner
attended with a command that he would not
be declared unsuccessful "merely because he
has not obtained 40% marks in one paper i.e.
1ALL] State of U.P. & others V. Ramagya Chaubey 25
in Hindi if he has been found otherwise fit
and successful."

3. We have heard learned Standing
counsel appearing for the appellants and Sri C
.B. Yadav, learned counsel representing the
respondents. The question that surfaces for
consideration is whether it was imperative for
the candidates to have secured 40% marks in
each subject in order to make way for
interview. The learned Standing counsel
relied upon the Govt notification dated July
10, 1986( Annexure 2 to the affidavit in
support of the stay application) to enforce his
submission that it was incumbent for the
candidates to have secured 40% marks in each
subject in order to qualify for interview. The
notification on which the learned Standing
counsel has placed credence relates back to
the selection of Sub Inspector, Civil Police for
training for the year 1986-87. The notification
referred to, embodied specific provision that
candidates had to secure 40% marks in each
subject and a minimum of 50% in the
aggregate. No such condition is stipulated in
the advertisement dated 4.10.91 as modified
by subsequent advertisement dated 26.10.91
pursuant to which the recruitment in question
is sought to be made. The relevant provision
of the advertisement reads as under:

" Ukta Parikshaon Me Safal Ghaushit
Abhiyarthiyon/ Abhiyarthini Ko Sakshatkar
Hetu Amantrit Kiya Jayega. Yadi Safal
Abhiyarthi/Abhiyarthini Adhik Sankhiya Me
Hote Hain To Sakshatkar Ke Liye Keval Vahi
Abhiyarthi/Abhiyarthini
Bulayen
Jayenga,
Jinhone Pariksha Me Adhiktam Ank Prapta
Kiya Ho. Up Nirikshak , Nagrik Police Ke
Jitne Pad Rikta Honge, Us Sankhya Ke
Lagbhag
Teen
Guna
Adhik
Abhiyarthi
Sakshatkar Ke Liye Bulaye Jayenge. Kisi Bhi
Dasha Me Asaphal Abhiyarthi Sakshatkar Me
Bulaye Nahi Jayenge. Sakshatkar Me Bulate
Samaye Arakshan Sambandhi Niyamo Ka Bhi
Poora Dhyan Rakha Jayega."

4. The learned Standing counsel placed
reliance on a decision of the Supreme Court in
M.P. Public Service Commission v. Navnit
Kumar Potdar1. In that case, advertisement
was
issued
inviting
applications
for
appointment to the post of Presiding Officer
of the Labour Court constituted under the
provisions of M.P. Industrial Relation Act,
1960. In view of sec. 8(3) (c) of the said Act,
it was prescribed in the advertisement that the
applicants should have put in practice as an
advocate or a pleader for a total period of not
less than five years. It would transpire that in
view of large number of applications received
from the general category candidates against
four posts, a decision was taken by the
Commission to call for interview only those
applicants for interview who had completed 7,
1/2 years of practice although in view of Sec.
8 (3) (c) of the Act, only five years of practice
as an Advocate or a Pleader in the Madhya
Pradesh
was
a
minimum
eligibility
requirement as per the statute. It was
canvassed that according to the statutory
requirement, only five years of practice as an
Advocate or Pleader was essential for
qualifying for interview and therefore, it was
not open to the Commission to enlarge the
said period to 7,1/2 years and debar the
applicants who fulfil statutory requirement of
five years of practice as Advocate or Pleader.
The High Court allowed the writ petition
taking the view that as the statutory
qualification in respect of practice was only
five years, raising the said period to 7,1/2
years was equivalent of laying down a
criterion in violation of the prescribed
statutory criterion. A direction was given
either to call the applicants for interview who
have completed five years of practice required
by sec. 8(3) (c) of the Act or to screen the
candidates through some other tests and
thereafter to call only such candidates who
qualify at the said screening test. The
Supreme Court where the matter was taken,
allowed the appeal and held as under:

1 AIR 1995 SC 77
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
26
"According to us, the High Court has not
appreciated the true implication of the shortlisting which does not amount to altering or
changing of the criteria prescribed in the Rule,
but is only a part of the selection process. The
High Court has placed reliance on the case of
Praveen Kumar Trivedi v. Public Service
Commission, 2M.P. 1986 Lab 1C 1990,
where
it
has
been
pointed
out
that
Commission
cannot
ignore
a
statutory
requirement for filling up a particular post and
cannot opt a criteria whereby candidates
fulfilling
the
statutory requirements are
eliminated
from
being
even called for
interview. As we have already pointed out
that where the selection is to be made purely
on basis of interview, if the applications for
such posts are enormous in number with
reference to the number of posts available to
be filled upon, then the Commission or the
Selection Board has no option but to shortlist
such
applicants
on
some
rational
and
reasonable basis."

5. On the question as to whether in the
process of short-listing, the Commission had
altered or substituted the criteria or the
eligibility of a candidate to be considered for
being appointed against the post of Presiding
officer Labour Court, the Supreme Court held
in the case aforestated as under;

"It may be mentioned at the very outset
that whenever applications are invited for
recruitment to the different posts, certain basic
qualifications and criteria are fixed land the
applicants
must
possess
those
basic
qualifications
and
criteria
before
their
applications
can
be
entertained
for
consideration. The Selection Board or the
Commission has to decide as to what
procedure is to be followed for selecting the
best candidates amongst the applicants. In
most of the services screening tests or written
tests have been introduced to limit the
numbers of the candidates who have to be
called for interview. Such screening tests or

2 M.P. 1986 Lab 1C 1990,
written tests have been provided in the
concerned statutes or prospectus, which
govern the selection of the candidates. But
where the selection is to be made only on
basis of interview, the Commission or the
Selection Board can adopt any rational
procedure to fix the number of candidates
who should be called for interview."

6. In State of Haryana v. Subhash
Chander Marwaha3 , the Supreme Court was
called upon to consider as to whether the
appointments could have been offered only to
those who had scored not less than 55%
marks when Rule 8 which was under
consideration, in that case, made candidates
who had obtained 45% or more in competitive
examination eligible for appointment. The
Apex Court held that Rule 8 was a step in the
preparation of a list of eligible candidates with
minimum
qualifications
who
may
be
considered for appointment. The list is
prepared in order of merit and the one higher
in rank is deemed to be more meritorious than
the one who is lower in the rank. Accordingly,
it was propounded that there was nothing
arbitrary in fixing the scoring of 55% for the
purpose of selection although a candidate
obtaining 45% was eligible to be appointed.
In State of U.P. v. Rafiquddin4, the question
was as to whether the Public Service
Commission was competent to fix minimum
marks under Rule 19 of U.P. Civil Services
(Judicial Branch) Rules 1951 as it then stood.
Rule 19 of the rules under consideration in
that case visualised that Commission would
prepare a list of candidates who had taken the
examination for recruitment to the service "in
order of their proficiency as disclosed by
aggregate marks finally awarded to each
candidate". And further that "if two or more
candidates obtain equal marks in the
aggregate the Commission shall arrange
them in order of merits on the basis of their
general suitability for the service." The
proviso
to
the
rule
read
as
under:

3 (1974) 1 SCR 165: (AIR 1973 SC 2216)
4 AIR 1988 SC 162
1ALL] Shiv Nath Seth V. State of U.P. and others 27

"Provided
that
in
making
their
recommendations
the
Commission
shall
satisfy themselves that the candidate-
(i) has obtained such an aggregate of marks in
the written test that he is qualified by his
ability for appointment to the service:
(ii) has obtained in the viva voce test such
sufficiently high marks that he is suitable for
the service."

It has been held by the Apex Court in that
case as under:

 "Where selection is made on the basis of
written as well as viva voce test, the final
result is determined on the basis of the
aggregate marks. If any minimum marks
either in the written test or in viva voce test
are fixed to determine the suitability of a
candidate, the same has to be respected.
Clause (ii) of the proviso to R. 19 clearly
confers power on the Commission to fix
minimum marks for viva voce test for judging
the suitability of a candidate for the service.
Thus even if a candidate has obtained higher
aggregate marks in written and viva voce test
but if he had failed to secure the minimum
marks in the viva voce test his name could not
be included in the list prepared by the
Commission under R. 19."

7. There is no quarrel with the principles
laid down by the Apex Court in the cases
referred to above but the decisions afore
stated bear no resemblance for application to
the
facts
of
the
present
case.
The
advertisement in question herein clearly
postulates that if a large number of candidates
have qualified in the written examination,
then only such candidates would be called for
interview who have secured 'maximum
marks'. The notification dated July 10,1986
reliance on which has been placed by the
learned Standing Counsel, was in respect of a
particular recruitment year. It cannot be
attributed any force of the statutory rules. In
the absence of any statutory rules, the
recruitment has to be governed by what is
provided in the advertisement pursuant to
which the recruitment is sought to be made.
The advertisement in the present case, as
already noticed, clearly postulates that only
those candidates should be qualified for
interview who have secured "maximum
marks" in the final written examination. It
nowhere prescribes any minimum mark in the
aggregate or any minimum in each subject i.e.
it nowhere provides that candidates will have
to secure 40% marks in each subject and 50%
in the aggregate in order to be able to make
way for interview. Therefore, according to
the advertisement, the criterion for calling the
candidates for interview is the merit to be
determined on the basis of total aggregate
marks
obtained
in
the
final
written
examination. Accordingly, no exception can
be taken to the view taken by the learned
Single Judge.

As a result of foregoing discussion, the
appeals fail and are dismissed in limine.
Appeal dismissed.

25,*,1$/ -85,6',&
25,*,1$/ -85,6',&7,21
7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' 129(0%(5
'$7(' $//$+$%$' 129(0%(5
%()25(
%()25(
7+( +21·%/( 5$9, 6'+$9$1 -
7+( +21·%/( 5$9, 6'+$9$1 -
7+( +21·%/( %',.+6,7 -
7+( +21·%/( %',.+6,7 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

6KLY 1DWK 6HWK
«3HWLWLRQHU
9HUVXV
6WDWH RI 83 DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL +1 6LQJK
6KUL 51 8SDGK\D
6KUL 56 &KDXKDQ
&RXQVHO IRU WKH UHVSRQGHQWV
6&
6KUL .% 0DWKXU