# Suresh Kumar Singh v. The State of U.P. and others

- **Citation:** (2004) 1 ILRA 146
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-10-09
- **Case number:** Civil Misc. Writ Petition No. 6866 of 1995
- **Bench:** R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-kumar-singh-v-the-state-of-u-p-and-others-40252
- **Pages:** 6

## Headnote

Sri Shiv Kumar Singh
Sri B.N. Singh
Sri S.P. Sinha
Sri S.K. Srivastava
Sri Pushpendra Singh
S.C.

U.P. Civil Service (Executive Branch)
Rules 1982, Rule 14 (4) read with
Collection of Amin Service Rules 1974Service Law-Life of Select list-whether
is select list valid only for a period of one
year-held, in absence of any special
provisions-yes

Held- Para 10

So far as the question as to whether the
select list continues to remain valid for a
period after one year is concerned, it
may be mentioned here that , in the
absence of any specific provision, the
select list is treated valid for a period of
one year.
Case Laws Discussed:
CMWP No. 24584 of 1989
CMWP No. 25598 of 1994
CMWP No. 1247 of 1992
1996 (2) UPLBEC 1249
SA No. 229 of 1992

## Text

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146
proviso, none of the rights of Pradhan
affected as the suspension of financial and
administrative power is only temporary in
nature which will always be subject to
final orders after an enquiry in accordance
with the Scheme of second proviso, read
with 1997 Rules.

10. In this view of the matter, none
of the argument advanced on behalf of
learned counsel for the petitioner can be
sustained and I am in full agreement with
the judgment of Division Bench, referred
to above.

For the reasons stated above, this
writ petitioner has no force and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2003

BEFORE
THE HON'BLE R.K. AGRAWAL, J.

Civil Misc. Writ Petition No. 6866 of 1995

Suresh Kumar Singh

...Petitioner
Versus
The State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri A.N. Sinha
Sri S.S. Chauhan
Sri K.N. Yadav

Counsel for the Respondents:
Sri Shiv Kumar Singh
Sri B.N. Singh
Sri S.P. Sinha
Sri S.K. Srivastava
Sri Pushpendra Singh
S.C.

U.P. Civil Service (Executive Branch)
Rules 1982, Rule 14 (4) read with
Collection of Amin Service Rules 1974Service Law-Life of Select list-whether
is select list valid only for a period of one
year-held, in absence of any special
provisions-yes

Held- Para 10

So far as the question as to whether the
select list continues to remain valid for a
period after one year is concerned, it
may be mentioned here that , in the
absence of any specific provision, the
select list is treated valid for a period of
one year.
Case Laws Discussed:
CMWP No. 24584 of 1989
CMWP No. 25598 of 1994
CMWP No. 1247 of 1992
1996 (2) UPLBEC 1249
SA No. 229 of 1992

(Delivered by Hon'ble R.K. Agarwal, J.)

1. By means of the present writ
petition filed under Articles 226 of the
Constitution of India, the petitioner,
Suresh Kuamr Singh seeks a writ, order or
direction in the nature of certiorari
quashing the order dated 16.12.1994
passed by the Controller Of Exams, U.P.
Public Service Commission, Allahabad
respondent no. 3 filed as annexure 2 to
the writ petition as also the appointment
of Sri Biodhan, respondent no 4 He
further seeks a writ, order or direction in
the nature of certiorari quashing the
decision taken by the respondent no. 3 to
give
placement
to
Sri
Biodhan,
respondent no.4 above the petitioner in
the select list and to recommend the name
of the petitioner for appointment on the
post of Naib Tahsildar in the select list of
1979
batch
by
creationing
a
supernumerary post. Further a writ, order
or direction in the nature of mandamus is
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sought directing the respondent no. 2
(Secretary, revenue Services, Lucknow)
to appoint the petitioner after he receives
the recommendation from respondent no.
3 on the post of Naib Tahisldar
retrospectively and fix his pay notionally
from the date his junior Sri Biodhan
respondent no. 4 was appointed as Naib
Tahsildar.

2. Briefly stated the facts giving rise
to the present writ petition are as follows:-

According to the petitioner he had
appeared in the written examination as
well as interview conducted by the U.P.
Public Service Commission, Allahabad in
the combined lower subordinate services
competitive examination 1979. In the
notification no. A-10-EIV/78-79, at serial
no. 20 , the total number of 185 posts of
Naib Tahisldar were to be filled up out of
which 28 were reserved for being filled
up from amongst the candidate belonging
to the backward class. The petitioner was
allotted roll no. 40686. He gave his first
preference for the post of Naib Tahsildar
and the second preference for the post of
entertainment tax inspector. He qualified
in the written test. He was called for the
interview, he scored 253 marks in the
written test and 56 marks in the interview
i.e. 309 marks. Sri Biodhan, respondent
no. 4 obtained 252 marks in the written
test and 57 marks in the interview i.e total
of 309 marks. However, the petitioner
was placed just below the respondent no.
4 by the U.P. Public Service Commission,
Allahabad.

3.

The
petitioner
made
a
representation on 15th June. 1984 before
the
chairman,
U.P.
Public
Service
Commission, Allahabad ,respondent no.
3,
pointing
out
the
anomaly
and
requesting for correcting the select list
and placing him above the respondent no.
4 It may be mentioned here that
respondent no. 4 had been posted as Naib
Tahsilar in the 1979 batch of selected
candidates. He sent a reminder on 23rd
June, 1994. when his representation was
not decided, he approached this court by
filing Civil Misc. Writ Petition No. 2213
of 199. However, after the representation
was decided on 16th December 1994, the
aforesaid writ petition was dismissed.

4. I have heard Sri Ashok Khare,
learned senior counsel for the petitioner
and the learned counsel appearing for the
respondents.

Learned counsel for the petitioner
submitted that the petitioner had obtained
more marks in the written test than that
was obtained by the respondent no. 4 and
the aggregate of total marks of the
petitioner and respondent no. 4 in the
written test and viva voce (interview)
being same, i.e. 309, the petitioner ought
to have been placed above the respondent
no.4. The action of the U.P. Public
service commission, Allahabad in placing
the petitioner below the respondent no.4
is wholly illegal and contrary to law. He
submitted that the U.P. Subordinate
Revenue
Executive
Service
(Naib
Tahsildar)
Rules
1944,
(hereinafter
referred to as the rules of 1944) governed
the selection and appointment of Naib
Tahsildar.
There
is
no
provision
empowering the U.P. Public Service
Commission, Allahabad to place a person
who has obtained higher marks in the
interview and where the aggregate is
same, above a person who has obtained
lesser marks in interview. He submitted
that rule 16 of the rules of 1944 provides
for determining the seniority in the select
list as have shown their suitability for
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appointment in the written test. Thus, the
marks obtained in the written test has to
play the determining role in placing the
candidates
in
order
of
merit,
his
submission is that under rule 19 of the
rules of 1944 if two or more candidates
obtain equal marks in the aggregate, the
commission has to arrange then in order
of merit in order of their general
suitability
of
the
service,.
General
suitability for the service means by
determining the merit according to the
marks obtained in the written test. In
support thereof, he relied upon a decision
of this court in Civil Misc. Writ Petition
No. 24584 of 1989, Vinay Khare v. State
of U.P. and others, decided on 5th
September, 1992, wherein this court while
interpreting the rule 19 of U.P. Nyayik
Sewa Niyamawali, 1951 had considered
this very question and had held that the
correct interpretation of rule 19 is where
two or more candidates have the same
total of marks, the candidates having
highest mark in the written test should be
appointed and not candidates having
highest in the oral test. He further
submitted that a special appeal no. 229 of
1992 was filed against the aforesaid
judgement wherein the division bench of
this court did not interfere. He also
submitted that the general trend in the
state of Uttar Pradesh is where candidates
have obtained the same aggregate of
marks in the selection emphasis has been
given to place those candidate who has
obtained higher marks in the written
examination, above in order of merit to
those who have obtained lesser marks in
the written test. He referred to Rule 14(4)
of the U.P. Civil Service (Executive
Branch) Rules, 1982 and Rule 17 of the
Collection Amines Service Rules, 1974.
Without prejudice to the above, Sri Ashok
Khare further submitted that the petitioner
was placed at serial no. 1 in the waiting
list and when the State Government called
for new names for appointment on the
post on Naib Tehsildar, the commission
ought to have sent the name of the
petitioner. He relied upon the division
bench decision of this court in the case of
Neel Kantha Tripathi V. State of U.P.
and others, Civil Misc. Writ Petition
No. 25598 of 1994, decided on 5th may,
1995, wherein this court has held if the
state government has called for the names
subsequently, Government Order dated
29thAugust, 1992 will not apply.

5.

Learned
counsel
for
the
commission submitted that under rule 19
of the rules of 1944, it has been
specifically provided that if two or more
candidates obtain equal marks in the
aggregate, the commission shall arrange
them in order of merit on the basis of their
general suitability of the service, it has not
been provided at any place that person
who has obtained higher marks in the
written test where the aggregate of total
marks obtained by them are the same, as
has been provided in the U.P. Civil
Service (Executive Branch) Rules, 1982
and The Collection Amines Rules, 1974.
According to him, the decision relied
upon by the learned counsel for the
petitioner in the case of Vinay Khare
(supra) has been overruled in the case of
Km. Manju Trivedi V. State Of U.P.,
Writ Petition No.1247 (SB) of 1992,
decided on 19th January, 1994. He also
relied upon a Division Bench decision in
the case of Avinash Narain Padney V.
State of U.P. And Others, (1996)2
UPLBEC 1249. He further submitted that
the life of the select list is only one year in
terms of the government order and in the
absence of any contrary provision the
select list had exhausted and the petitioner
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149
is not entitled for his name being sent for
appointment.

6. Having heard the learned counsel
for the parties, I find that the petitioner
and respondent no. 4 have obtained 309
marks in aggregate in the written and
interview test held by the U.P. Public
Service Commission, Allahabad, while
the petitioner had obtained 253 marks in
the written test and 56 marks in the
interview, the respondents no. Had
obtained 252 marks in the written test and
57 marks in the interview. Under the
Rules of 1944, the Commission is to
prepare the list of candidates for direct
recruitment in order of their proficiency
as disclosed by the aggregate marks
finally awarded to each candidate and
where two or more candidates obtained
equal marks in the aggregate, the
Commission shall arrange the in order of
merit on the basis of their suitability for
the service. Rule 16 and 19 of the Rules
of 1944 are reproduced below:-

"16. Admission to the viva voce (1)
after the marks obtained by the candidates
in the written test have been received m, a
consolidated list of the candidates shall be
prepared in order of merit and laid before
the commission, the list shall show
neither the roll number nor the names of
the candidates, but shall only give serial
number in order of merit, the community
to which the candidate belong and the
marks obtained by them in the written
test. The commission shall summon for
interview as many candidates as hove
shown their suitability for appointment in
the written test having regard to necessity
for security the representation of the
communities and classes for which
reservation has been made and shall
award marks up to a maximum of 100 to
each such candidate for his suitable for
appointment in respect of character,
personality and physique, the marks so
allotted shall be added to the marks
obtained in the written examination.

(2) Except for the purpose indicated
above, the marks obtained by the
candidates in the written test shall not be
disclosed
to
the
members
of
the
commission who conduct viva voce
examination until the examination is over
and the marks therefore have been finally
awarded.

19. Selection of candidates for direct
recruitment:-
the
commission
shall
prepare a list of the candidates for direct
recruitment in order of their proficiency
as disclosed by the aggregate marks
finally awarded to each candidate. If two
or more candidates obtain equal marks in
the aggregate the commission shall
arrange them in order of merit on the
basis of their general suitability for the
service. Subject to the provisions of rule
21 and to the allocation of posts to
communities and classes, the board shall
select the candidates who stand highest in
order of merit, provided that they are
satisfied that the candidates are duly
qualified in other respects.

7. Section C of Appendix C framed
under Rule 15 of the Rules of 1944
provides as to how the personality
test/viva voce shall be conducted. It
includes awarding of marks for general
suitability for service also. From a reading
of rules 16 and 19 along with section C of
Appendix C. It will be seen that while
rule 16 refers for summoning the
candidates for interview, who have shown
their suitability for appointment in the
written test, rule 19 specifically provides
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for arrangement of merit list where two or
more candidates have obtained equal
marks in the aggregate, on the basis of
their general suitability for the service and
section C of Appendix c provides for
giving of marks for general suitability for
service in the viva. Voce/personality test.
Thus the marks obtained in the Viva.
Voce/personality test /interview has to be
considered for placing a person in the
merit list where two or more candidates
have obtained equal marks in the
aggregate. In this view of the matter, the
action
of
U..P
Public
Service
Commission, Allahabad in placing the
petitioner below the respondent no. 4
cannot be said to suffer from any
infirmity in law . Reliance placed by Sri
Khare on the decision of Vinay Khare
(supra) is misplaced as the said decision
has subsequently been overruled by a
division bench of this court in the case of
Km. Manju Trivedi (supra) in the case of
Manju Trivedi (supra) this court has held
as follows:-

"Rule
19
provides
for
general
suitability to the determinative factor
while clause 6 of Appendix E provides
the manner of determining suitability of
the candidates. There is no reason not to
consider the provision of clause (6) in
interpreting rule 19. We are, therefore, not
in agreement with the view of the leaned
single judge. The rule of simpler and
shorter interpretation has no application in
this case. Whether the written test or
interview constitute test of general
suitability, is the question to be decided.
They cannot be compared for being
shorter and simpler. There is no objective
test to determine it and in absence of any
reason to say that either of them is shorter
or simpler, the test appears to be totally
inapplicable and artificial."

8. Similar is the position in the
present case also. Rule 19 of the U.P.
Nyayik Sewa Niyamawali is in pari
materia with the Rules of 1944. Thus, in
accordance with Rule 19 of the Rules of
1944, the Commission was fully justified
in taking the marks obtained in the
interview test as the basis of determining
the merit of the candidates who have
obtained equal marks in the aggregate.
The decision of this court in the case Km.
Manju Trivedi (supra) was subsequently
followed in the case of Avinash Narain
Pandey(supra). So far as the order passed
by this court in special appeal no.229 of
1992 against the decision of the learned
single judge in the case of Vinay Khare
is concerned, this court in the case of
Avinash Narain Pandey has held that
special appeal was disposed of without
deciding the controversy involved on the
basis of the following assumptions:-

"13...
(1) rule, which has prescribed the
criteria for selection on the basis of the
marks obtained in the interview when two
or more candidates have secured equal
marks in the aggregate has been amended.
(2) The
only
person,
who
is
affected by the unamended rule is Vinay
Khare, who has already been appointed as
Munsif about two years ago; and
(3) The
other
affected
person,
namely, Zameer Ahmad and Km. Manju
Trivedi have not challenged their nonselection.

All these assumptions were unwarranted
being contrary to the reality .This is clear
from the following admitted facts:

(1) The commission in its counteraffidavit in the present case has admitted
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151
that there was a proposal to amend the
rule, which is still pending before the
State Government and the rule has not
been amended so far;
(2) Apart from Sri Vinay Khare, Sri
Zameer Ahmad and Km.Manju Trivedi
were also the affected persons by the
same decision of the Commission, which
was challenged by Vinay Khare and they
have also challenged their non-selection
before the Lucknow Bench of this Court
by means of two writ petitions nos. 1247
(SB) of 1992 and 1289 (SB) of 1993 and
both these writ petitions were allowed by
a Division Bench (LKO)on 19.04.1994
holding that in a case where equal marks
are secured by two or more candidates,
their names are to be placed in the list in
order of merit on the basis of their marks
obtained by them in the interview. The
decision of the learned single judge In
Vinaly Khare's case was also overruled
by the Bench.

(3) Although
judgment
of
the
Division Bench (LKO) in Km. Manju
Trivedi's
case
was
delivered
on
19.04.1994, but it was not brought to the
notice of the Bench hearing the appeal ,
filed by the Commission against the order
of the learned Single judge in Vinaly
Khare'case, although the appeal was
decided on 14.07.1994. Judgment of the
Special Appeal Bench was thus given in
ignorance of the decisions of the Division
Bench in Km. Manju Trivedi's case.

9. No benefit can be taken from
Rule 14 (4) of the Uttar Pradesh Civil
Service (Executive Branch) Rules, 1982
and Rule 17 of the Collection Amins
Service Rules, 1974 as, in the present
case, there is no such provision in Rule 19
of the Rules of 1944. The State
Government has not amended the Rule 19
of the Rules of 1944 in the light of the
aforementioned Rules. Till such time it is
not modified, merit list is to be prepared
on the basis of marks obtained in the
interview wherein general suitability of
the service is seen.

10. So far as the question as to
whether the select list continues to remain
valid for a period after one year is
concerned, it may be mentioned here that
, in the absence of any specific provision,
the select list is treated valid for a period
of one year. Reliance placed by the
learned counsel for the petitioner on the
government Order dated 25th March, 1985
is misplaced. In the case of Neel Kanth
Tripathi (supra) this Court has held that
all Government Orders have prospective
effect unless otherwise directed. The
Government Order No.28/5/1980 Karmik1 dated 15 July, 1982 had specifically
provided that the period of one year is the
life of the select list. The U.P. Public
Service Commission, Allahabad had sent
its recommendation on 27th july, 1982 and
the life of the select list stood exhausted
after one year.

11. In view of the foregoing
discussions, I do not find any merit in this
petition. It is dismissed. However , the
parties shall bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2004

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE V.N. SINGH, J.

First Appeal No. 1256 of 2003

New
Okhla
Industrial
Development
Authority

...Appellant