# Sunil Kumar Sinol v. The State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-10
- **Case number:** Civil Misc. Writ Petition No. 52468 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-sinol-v-the-state-of-u-p-and-ors-42735
- **Pages:** 4

## Headnote

1998-Rule-8-Minimum
qualificationintermediate with science-mode of sort
listing-ignoring intermediate candidate-giving
preference
to
graduate
candidate-heldarbitrary-unreasonable-such mode of sort
listing-unknown in service jurisprudencedirection to allowe participation in selection
process-issued-in
accordance
with
observations.

Held: Para-14
The idea of short listing in the present case on
the part of respondents is nothing but a kind
of conferring absolute preference to the
persons possessing higher qualification. Such
preference, which excludes other candidates
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
though
lessor
qualified
but
possessing
minimum requisite qualification, in absence of
any rationality, would be per se illegal.

Case Law discussed:
2013(7) SCC 150; 2003(5) SCC 341

## Text

3 All] Sunil Kumar Sinol Vs. The State of U.P. and Ors.
1513
number of the candidates required in order of
merit. For example, there may be a situation
where more than required number of
candidates may obtain marks above the cutoff
marks say for example out of 10,000 if 8,000
or 6,000 candidates obtain the cut off marks
then all of them may have to be called for
further tests and interview etc. It would in that
event not serve the purpose of shortlisting by
this method to obtain the given ratio of
candidates, and the vacancy available. For
example, for 100 vacancies if, at the most, 500
candidates need be called then any candidate
who is otherwise eligible up to the 500th
position whatever be the percentage above or
below the fixed percentage would be eligible
to be called for further tests. Thus the purpose
of shortlisting would be achieved without
prescribing any minimum cut-off marks.
Further, we may observe that where there is a
written competitive examination, providing
higher cut off marks at the threshold, by
changing the minimum qualifications, to
exclude the candidates, who fulfill the
minimum qualification, from even applying is
not at all justified in absence of a specific
power provided for that purpose under the
Statutory Rules/Regulations. As no statutory
Rule/Regulation has been shown to us and,
particularly, when the advertisement itself
provides for a written test, we do not find any
rational basis to provide for cut off marks of
60% for the General and OBC candidates and
55% marks for SC/ST candidates for being
eligible to apply for undergoing the
recruitment process.

14. For the reasons mentioned
above, the writ petition deserves to be
allowed and is, accordingly, allowed. The
condition No.4 (C) in the Advertisement
No.03/VSA/2013 (Annexure No.2 to the
writ petition) is hereby quashed. The
respondent no.3 is directed to issue and
publish an advertisement by way of
corrigendum
thereby
providing
reasonable time to the eligible candidates
to apply and it will also notify a fresh date
for the written examination thereby giving
all candidates a reasonable opportunity.

15. It is made clear that we have not
adjudicated on the right of the Electricity
Service Commission to adopt a rational
screening/short-listing process after receiving
the applications from all the eligible
candidates, as is permissible in law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 52468 of 2013

Sunil Kumar Sinol
 ...Petitioner
Versus
The State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Respondents:
C.S.C.

U.P. Chikitsa Evam Swasthya Vibhag Dark
Room Sahayak(Arajpatrit) Sewa Niyamawali
1998-Rule-8-Minimum
qualificationintermediate with science-mode of sort
listing-ignoring intermediate candidate-giving
preference
to
graduate
candidate-heldarbitrary-unreasonable-such mode of sort
listing-unknown in service jurisprudencedirection to allowe participation in selection
process-issued-in
accordance
with
observations.

Held: Para-14
The idea of short listing in the present case on
the part of respondents is nothing but a kind
of conferring absolute preference to the
persons possessing higher qualification. Such
preference, which excludes other candidates
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
though
lessor
qualified
but
possessing
minimum requisite qualification, in absence of
any rationality, would be per se illegal.

Case Law discussed:
2013(7) SCC 150; 2003(5) SCC 341

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. In compliance of this Court's order,
respondents have file counter affidavit.
Counsel for the petitioner does not propose
to file rejoinder affidavit. As agreed and
requested by learned counsel for the parties, I
proceed to decide the matter finally at this
stage under the Rules of the Court.

2. Heard learned counsel for the
petitioner and learned Standing Counsel for the
respondents.

3. The minimum prescribed educational
qualification as per Rule 8 of U.P.Chikitsa
Evam Swasthya Vibhag Dark Room Sahayak
(Arajpatrit)
Sewa
Niyamawali,
1998
(hereinafter referred to "Rules, 1998") is
Intermediate with Science or equivalent
qualification duly recognized by Government.

4. Sri R.C.Yadav, learned Standing
Counsel did not dispute that petitioner possess
requisite minimum qualification. He however,
submitted that respondents have made a
shortlisting of eligible candidates and therefore,
have confined initial selection to those
candidates, who are graduate and that is why,
petitioner has not been allowed to participate in
the selection.

5. The question whether in the present
case shortlisting by respondents can be said to
be valid and consistent with the procedure of
recruitment under the rules.

6. The system of shortlisting where a
very large number of candidates have
applied, in certain circumstances, has
been recognized and upheld but it all
depends on procedure of recruitment and
some other relevant factor, which I would
discuss in detail hereinbelow.

7. In Government of Andhra
Pradesh Vs. P.Dilip Kumar, 1993 (2) SCC
310, the Court said that method of
shortlisting can be validly adopted by the
selection body. It was reiterated in M.P.
Public Service Commission v. Navnit
Kumar Potdar AIR 1995 SC 77.

8. However, in what circumstances, the
procedure adopted can be said to be valid
would depend upon the nature of recruitment,
the procedure prescribed for recruitment under
the Rules and various other similar relevant
factors. In a case where recruitment process
includes written competitive test having
objective-type questions, mere qualification,
even if it is higher, by itself would not be a
controlling factor to make such person
possessing higher qualification of better merit.
At least one opportunity in such case of
competition must be available to all such
persons who possess minimum requisite
qualification unless and until it can be shown
that number of candidates applying is so large
that holding of competitive examination in
peculiar facts and circumstances of that
particular case is not practically possible or
probable or may cause extreme difficulty to the
examining body. There can be no thumb rule in
all these aspects.

9. A recruitment process founded on
an open competition involving a written test
would not justify shortlisting for the reason
that
persons,
who
possess
minimum
qualification, have right to compete with
persons possessing higher qualification and
can equally prove their merit so as to be
selected and appointed over and above a
person possessing higher qualification. We
3 All] Sunil Kumar Sinol Vs. The State of U.P. and Ors.
1515
have seen such kind of example in various
public services. For example recruitment
held by Union Public Service for All India
Services is open to all candidates. The
selection process includes written test,
interview etc. The minimum qualification is
graduate. We have seen many times that
simple graduate has excelled over candidates
who are highly qualified.

10. Once a person possess requisite
qualification, apparently there does not appear
to be any just and valid reason to deprive him
an opportunity of competition unless there are
just, valid and rational grounds for justifying it
otherwise. In the present case, learned
Standing Counsel fairly stated that apparently
there does not appear to be any justification
for such shortlisting, moreso, in the light of
recruitment process contemplated in the rules.
The procedure for recruitment of Dark Room
Assistant has been provided in Rule 15 of
U.P.Chikitsa Evam Swasthya Vibhag Dark
Room
Sahayak
(Arajpatrit)
Sewa
Niyamawali, 1998 (hereinafter referred to
"Rules, 1998"), and it reads as under:

^^lh/kh HkrhZ dh izfdz;k&lsok esa MkdZ:e lgk;d ds
in ij lh/kh HkrhZ le; le; ;Fkkla'kksf/kr m0iz0 1⁄4m0iz0
yksd lsok vk;ksx ds {ks= ds ckgj1⁄2 lewg ^^x** ds inksa ij
lh/kh HkrhZ dh izfdz;k fu;ekoyh] 1998 ds micU/kksa ds
vuqlkj dh tk;sxhA**

11. The aforesaid rules takes this Court
to U.P. Procedure for Direct Recruitment for
Group "C" Posts (Outside the purview of the
Uttar Pradesh Public Service Commission)
Rules, 1998. Therein, it is rule 5, which
provides 'procedure'. It contemplates a written
test and thereafter interview.

12. When a written test consisting of
objective-type written examination in the
subjects
like
General
Hindi,
General
Knowledge
and
General
Studies
is
contemplated in the rules, I do not appreciate
as to how exclusion of those candidates, who
are simply intermediate with science, which is
a minimum qualification, would help the
respondents in selecting best meritorious
candidates. The merit is not directly
proportionate to qualification possessed by
individual though there may be a presumption
that a person possessing higher qualification
may be knowing more than the person
possessing lower qualification but in the
concept of general merit, mere possession of
higher qualification cannot entitle such person
to claim better than the person possessing
lessor qualification.

13. Be that as it may, once there is no
procedure for shortlisting under the rules and
in the facts and circumstances of this Court,
respondents are not able to justify such
shortlisting, I do not find action of respondents
to be just and valid in proceeding with
recruitment by shortlisting the candidates
confining it only to graduates.

14. The idea of short listing in the
present case on the part of respondents is
nothing but a kind of conferring absolute
preference to the persons possessing higher
qualification.
Such
preference,
which
excludes other candidates though lessor
qualified but possessing minimum requisite
qualification, in absence of any rationality,
would be per se illegal.

15. In G.Jayalal Vs. Union of India &
Ors., 2013 (7) SCC 150, the Court said that
conceptual preference, fundamentally, would
mean that all aspects, namely, merit,
suitability, fitness, etc. being equal, preference
is given, regard being had to some other
higher qualifications or experience, etc.

16. In Secretary, A.P. Public Service
Commission Vs. Y.V.V.R. Srinivasulu and
others, 2003(5) SCC 341, the Court observed
1516 INDIAN LAW REPORTS ALLAHABAD SERIES
that whenever, a selection is to be made based
on merit performance involving competition,
the person possessing additional qualification
cannot be provided preference to the
exclusion of all others for the reason that in
the context of all such competitive scheme of
selection it would mean that other things
being qualitatively and quantitatively equal,
those with additional qualification may be
preferred, that too only when rules provide
possession of an additional qualification or
factor of preference.

17. In the present case, shortlisting is
not in the nature of screening of candidates
by giving an opportunity to them to compete
among themselves and thereafter to shortlist
the
candidates
for
further
stage
of
recruitment but despite possession of
minimum qualification, candidates like
petitioner are being denied opportunity of
participation i.e. equal opportunity of
employment only on the ground that person
possessing higher qualification are available
and therefore, recruitment would be confined
to those higher qualified candidates.

18. In the present case, post is that of
Dark Room Assistant, a Group 'C' post. It is
a little bit technical post but includes menial
job also. Therefore, suitability and merit of
candidate would depend upon various
aspects. Mere higher qualification cannot be
a sole governing factor. The exclusion of
petitioner, therefore, from the field of
competition in the name of shortlisting, in
my view, is patently illegal and arbitrary.

19. In the result the writ petition is
allowed. The respondents shall permit
petitioner to participate in the selection and
for this purpose shall issue admit card to the
petitioner forthwith, and, in any case, within
ten days from the date of receipt of a certified
copy of this order before respondent no.3

20. The petitioner shall also be
entitled to cost, which I quantify to
Rs.2,000/-.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No.54062 of 2013

Jagat Narain & Ors. ...Petitioners
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioners:
Sri Ajay Srivastava

Counsel for the Respondents:
C.S.C., Sri Ashish Kr. Srivastava

U.P.Z.A. & L.R. Act-Section 122-B-Eviction
of unauthorized occupant on small piece of
Gaon Sabha land-Single Judge taken view
in Budhee, Ajanta, Udyog Mandal Kishore
Singh-in which after realization of certain
amount their possession be regularizedwhile another Single Judge in Pratap Singh
Sishodiya case taken contrary view-matter
referred to Chief Justice for constitution
larger bench-as to which one is correct
view-direction issued accordingly.

Held: Para-21
Having noted the aforesaid decisions and the
provisions
aforesaid,
I
am
unable
to
persuade myself to extend the benefit of a
mandamus as prayed for by the petitioners,
but since there are a large number of
decisions
that
have
been
noticed
hereinabove and a contrary view in the case
of Pratap Singh Shishodia (supra), it would
be more appropriate that such issues should
be decided authoritatively by a larger bench
that may finally rest this dispute on the basis
of the statutory provisions that exist under
the U.P. Z.A. & L.R. Act, 1950.

Case
Law
discussed: