# Vidhyarthi v. State of Bihar, 1997 (76)

- **Citation:** (2003) 2 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-05
- **Case number:** Special Appeal No. 523 of 2002
- **Bench:** M. Katju, R.K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidhyarthi-v-state-of-bihar-1997-76-40124
- **Pages:** 6

## Headnote

Service Rules 1980-Rule 15 (3)-gives a
vide discretion to adopt any procedure
for selection of candidates. The court
cannot sit over the judgment and must
observe judicial restraint. (Para 11)
http:\\allahabadhighcourt.nic.in
2 All] U.P. Public Service Commission, Allahabad V. Surendra Kumar Singh
467
In our opinion, it is open to the
Commission to adopt any method of
fixing the standard under Rule 15 (3) as
long as it is an objective standard
applicable to all candidates. It is not for
this Court to sit in appeal over the
decision taken by the Commission in this
regard. If the Commission feels that
40%
marks
should
separately
be
obtained for the written as well as the
practical test, it is not for this Court to sit
in appeal over that decision of the
Commission. The Court must observe
judicial restraint in such administrative
matters.
Case law referred:
285 US 262 (1932)
AIR 1996 SC 11
J.T. 1996 (8) SC 130
2003 (4) S.C.C. 289

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
466
cases also it has been held that the burden
of proof lies on the party, who invokes the
jurisdiction of the court. "The test would
be, who would fail if no evidence is led."
The court answered that the person, who
invokes jurisdiction and raises the dispute,
has to discharge his burden of proof and
the onus shift on the other party. Thus
when the whole case was open before the
Tribunal, the burden to prove that the
order of removal was wrong, was on the
workman, who was challenging the order.
It appears that the workman did not
examine himself neither at the time of
decision
of
preliminary
issue
nor
thereafter. The pleadings are not proved.,
hence there was no evidence before the
Tribunal to prove that the order of
removal was illegal and the award is not
based on any evidence.

11. The second contention of
termination is covered by Section 25-F of
the U.P. Industrial Dispute Act, 1947. The
Apex
Court
in
Himanshu
Kumar
Vidhyarthi Vs. State of Bihar, 1997 (76)
FLR 237, has held that the services of a
workman are regulated by the statutory
Rules, concept of industry is excluded and
as such the award passed by the labour
court is also without jurisdiction.

12. Lastly, it has been submitted that
in para 11 of his written statement the
workman had stated that he was out of
employment for merely 19 years and has
prayed for lesser punishment, hence the
award of reinstatement with full back
wages was illegal. The reason has been
given by the labour court in awarding full
back wages.

13. In the writ petition there was an
interim order. From the counter affidavit,
it appears that the workman was aged
about 55 years. He must have retired by
now. No purpose would be served by the
order of his reinstatement at this stage.

14. For the reasons stated above, the
writ petition partly succeeds and is
allowed. The petitioner is directed to pay
50% of the back wages to respondent no.2
from the date of reference to the date of
his retirement with 10% interest, as the
workman had not worked during the
period, within two months from the date
of production of this order. The interim
order dated 10.3.1998 is vacated. No
order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.8.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 523 of 2002

U.P.
Public
Service
Commission,
Allahabad

...Appellant
Versus
Surendra Kumar Singh ...Respondent

Counsel for the Appellant:
Sri B.N. Singh
Sri Neeraj Tiwari

Counsel for the Respondent:
Sri A.K. Bajpai
Sri S.P. Pandey
Sri J.P. Rai

U.P. Transport (Subordinate) Technical
Service Rules 1980-Rule 15 (3)-gives a
vide discretion to adopt any procedure
for selection of candidates. The court
cannot sit over the judgment and must
observe judicial restraint. (Para 11)
http:\\allahabadhighcourt.nic.in
2 All] U.P. Public Service Commission, Allahabad V. Surendra Kumar Singh
467
In our opinion, it is open to the
Commission to adopt any method of
fixing the standard under Rule 15 (3) as
long as it is an objective standard
applicable to all candidates. It is not for
this Court to sit in appeal over the
decision taken by the Commission in this
regard. If the Commission feels that
40%
marks
should
separately
be
obtained for the written as well as the
practical test, it is not for this Court to sit
in appeal over that decision of the
Commission. The Court must observe
judicial restraint in such administrative
matters.
Case law referred:
285 US 262 (1932)
AIR 1996 SC 11
J.T. 1996 (8) SC 130
2003 (4) S.C.C. 289

(Delivered by Hon'ble M. Katju, J.)

1. This Special Appeal has been
filed against the judgment of the learned
Single
Judge
of
this
Court
dated
12.4.2002 in Writ Petition No. 53701 of
2000. In that decision the learned Single
Judge has followed his own judgment in
Writ Petition No. 55771 of Sushil Kumar
Srivastava
v.
U.P.
Public
Service
Commission decided on 12.4.2002.

2. We have heard learned counsel
for the parties.

3. The facts of this case are that the
U.P.
Public
Service
Commission
(hereinafter
referred
to
as
the
Commission) issued an advertisement in
the newspaper 'Rashtriya Sahara; dated
3.7.1999 inviting applications for the post
of Regional Inspector (Technical) and
Assistant Regional Inspector (Technical).
Copy of the advertisement is Annexure-1
to the Writ Petition. The writ petitioner
applied against that advertisement. His
application was rejected on the ground
that he was overage, and hence he filed
writ petition no. 30063 of 1999 in this
Court in which an interim order dated
26.7.1999 was passed permitting him to
appear in the examination. Accordingly
he appeared in the written examination
and practical examination whose result
was declared on 25.11.2000 in which he
was not declared selected. Aggrieved this
petition was filed before the learned
Single Judge who allowed the same,
hence this Special Appeal.

4. It may be mentioned that writ
petition no. 30063 of 1999 was dismissed
by a learned Single Judge of this Court on
15.3.2001, and it was held that the writ
petitioner was overage.

5. We have carefully perused the
judgment of the learned Single Judge, and
we respectfully disagree with the view he
has taken. The learned Single Judge has
observed that the main issue which arose
for determination in the case was as to
whether for calling a candidate in the
interview a candidate has to separately
obtain 40% marks in both written and
practical tests, or whether 40% marks
have to be obtained after adding the
aggregate marks of the written and
practical examination together. The writ
petitioner submitted that if the marks in
the written and practical examination are
added he would have secured 40% of the
aggregate and he would be held to have
qualified for the interview. However, the
respondents in the Writ Petition alleged
that 40% have to be obtained separately in
both written as well as practical test.

6. The recruitment to the post of
Regional
Inspector
(Technical)
and
Assistant Regional Inspector (Technical)
is governed by the U.P. Transport
http:\\allahabadhighcourt.nic.in
INDIAN LAW REPORTS ALLAHABAD SERIES [2003
468
(Subordinate) Technical Service Rules,
1980. Rules 14 and 15 have been quoted
in the judgment of the learned Single
Judge and hence it is not necessary to
repeat the same. However, we may refer
to Rule 15 (3) of the Rules which states:

"After the results of the written
examination have been received and
regulated, the Commission shall, having
regard to the need for securing due
reservation of the candidates belonging to
the Scheduled Castes, Scheduled Tribes
and others categories under rule 6,
summon for interview such number of
candidate as on the result of the written
examination have come up to the standard
fixed by the Commission in this respect.
The marks awarded to each candidate at
the interview shall be added to the marks
obtained
by
him
in
the
written
examination."

7. A perusal of Rule 15 (3) shows
that the Commission has to summon for
interview such number of candidates who
have come up to the standard fixed by the
Commission in the written examination.
The marks awarded in the interview will
then be added to the marks in the written
examination.

8. Thus it is to be noted that Rule 15
(3) does not itself fix the requisite
standard for the written examination but
leaves that to the Commission.

9. The advertisement has mentioned
that the two written papers have 50 and
100 marks respectively. The practical test
has 100 marks and the personality test has
30 marks. The advertisement further
states that the personality test will be held
by the Commission after the written and
practical examinations on dates to be
communicated by the Commission and
will be confined to such number of
candidates only as have qualified in the
written and practical test. In para 8 of the
Counter Affidavit to the writ petition it is
stated that only 111 candidates appeared
for the written and practical test and only
77 could score the minimum qualifying
marks fixed by the Commission.

10. A Supplementary Counter
Affidavit has also been filed by the
Commission. In para 3 of the same it is
stated that the Commission in its meeting
on 22.11.2000 considered the report of the
examination
Committee
and
subject
Committee and reiterated its decision
fixing minimum qualifying marks in both
written as well as practical examination
vide Annexure-SCA- 1 and SCA-2.

11. In our opinion, it is open to the
Commission to adopt any method of
fixing the standard under Rule 15 (3) as
long as it is an objective standard
applicable to all candidates. It is not for
this Court to sit in appeal over the
decision taken by the Commission in this
regard. If the Commission feels that 40%
marks should separately be obtained for
the written as well as the practical test, it
is not for this Court to sit in appeal over
that decision of the Commission. The
Court must observe judicial restraint in
such administrative matters. We are,
therefore, not in agreement with the view
taken by the learned Single Judge that the
Commission must necessarily add the
marks in the written and practical test and
only thereafter determine the required
40% in the aggregate for qualifying for
the interview. In our opinion it is in the
discretion of the Commission either to
require 40% after adding the result of
both written and practical examination, or
http:\\allahabadhighcourt.nic.in
2 All] U.P. Public Service Commission, Allahabad V. Surendra Kumar Singh
469
to require 40% separately in each of the
results of the written and practical
examination
for
qualifying
for
the
interview.

12. The administrative authorities
must be left with the discretion to adopt
different procedures in such selections,
and it is not proper for this Court to
interfere in this connection, as Judges do
not have expertise in such matters.

13. Of course if there had been a
specific Rule that the marks of the written
and practical test have to be added and
only thereafter 40% of the aggregate shall
be taken as the requisite qualifying marks
for the interview, the position would have
been different. However, Rule 15 (3) is
silent as to what procedure should be
adopted, and hence it is open to the
Commission to adopt any procedure at its
discretion provided the same is not wholly
arbitrary or illegal. The administrative
authorities must be left with wide latitude
in
such
matters.
It
is
singularly
inappropriate for this Court to sit in
appeal over administrative decisions,
unless they are clearly illegal.

As observed by Chief Justice Neely:

"I have very few illusions about my
own limitations as a Judge. I am not an
accountant, electrical engineer, financer,
banker,
stockbroker
or
system
management analyst. It is the height of
folly to expect Judges intelligently to
review a 5000 page record addressing the
intricacies of public utility operation. It is
not the function of a Judge to act as a
super board, or with the zeal of a
pedantic school master substituting its
judgment for that of the administrator."

14. Merely because in the past the
Commission has been adding the marks of
the written and practical test and then
determining 40% for the qualifying
standard, it does not mean that the
Commission cannot adopt a new practice.
In such matters the Court must give wide
latitude to the administration to make
experiments and to change the past
practice if it so think fit, unless the new
practice is wholly illegal. After all,
starting a new practice is making an
experiment, and this Court should not
interfere in this.

15. In his dissenting judgment in
New State Ice Co. Vs. Liebmann. 285 US
262 (1932) Mr. Justice Brandeis, the
celebrated Judge of the U.S. Supreme
Court observed that the government must
be
left
free
to
engage
in
social
experiments. Progress in the social
sciences, even as in the physical sciences,
depends on "a process of trial and error"
and Courts must not interfere with
necessary experiments.

16. Justice Brandeis observed:

"To stay experimentation in
things social and economic is a grave
responsibility. Denial of the right to
experiment may be fraught with serious
consequences to the Nation." (see also
"The Legacy of Holmes and Brandeis' by
Samuel Konefsky)

17. As held by the Supreme Court in
Tata Cellular vs. Union of India AIR 1996
SC 11, judicial review of administrative
decisions is concerned with reviewing not
the merits of the decision but the decision
making process. Hence it is not for the
Court to determine whether the particular
decision is fair or not. The Court is only
http:\\allahabadhighcourt.nic.in
INDIAN LAW REPORTS ALLAHABAD SERIES [2003
470
concerned with the manner in which the
decision has been reached. The Supreme
Court also observed that the modern trend
points
to
judicial
restraint
in
administrative action. The Court does not
sit
as
a
Court
of
appeal
over
administrative decisions as it does not
have the expertise to correct those
decisions.

18. In Secretary (Health) v. Dr.
Anita Puri, J.T. 1996 (8) SC 130 the
Supreme Court observed (vide para 9)
that where there is no statutory rule or
guideline issued by the Government for
the Commission for the purpose of
evaluation of merit of the candidates, the
sole authority and discretion vests with
the Commission. In such matters "the
courts should be slow to interfere with the
opinion expressed by experts unless
allegations of mala fide are made and
established. It would be prudent and safe
for the courts to leave the decisions on
such matters to the experts who are more
familiar with the problems they face than
the courts."

19. In Federation of Railway
Officers Association v. Union of India,
2003 (4) S.C.C. 289 (vide para 12) the
Supreme Court observed:

"On matters affecting policy and
requiring technical expertise the Court
would leave the matter for decision of
those who are qualified to address the
views. Unless the policy or action is
inconsistent with the Constitution and the
laws or arbitrary or irrational or abuse of
power, the Court will not interfere with
such matters."

20. The learned Single Judge has
held that the decision dated 23.11.2000
(Annexure-SCA-1 to the Supplementary
Counter Affidavit to the petition) is not a
decision of the Commission, and hence
the decision of the Commission dated
19.11.1997 still holds the field. The
learned single Judge has observed that the
decision dated 23.11.2000 is a decision of
the
Pariksha
Samiti
(examination
committee) and not a decision of the
Commission.

21. The Examination Committee is a
body set up by the Commission. Its
decision dated 23.11.2000 was never
disapproved by the Commission, rather it
seems that the Commission had tacitly or
by implication endorsed the decision
dated 23.11.2000 since the Commission
has not specifically set aside that decision,
rather it is proceeding on the basis of that
decision.

22. It may be mentioned that under
Section 5 of the U.P. State Public Service
Commission (Regulation and Procedure)
Act, 1985 the Commission can delegate
its function to any Committee. At any
event, since the Commission has not
disapproved
the
decision
of
the
Committee dated 23.11.2000, the said
decision must be deemed to have been
impliedly approved by the Commission,
and has to be treated as the decision of the
Commission.

23. We may further add that since
the petitioner had been declared overage
and Writ Petition No. 30063 of 1999 in
this connection had been dismissed on
15.3.2001 by this Court which held that
the petitioner was overage for the
examination, it was not proper for the
learned Single Judge to have directed that
the petitioner shall be treated as having
qualified for the interview on the basis of
http:\\allahabadhighcourt.nic.in
2 All] Nagar Mahapalika, Varanasi and another V. U.P. Public Service Tribunal and others 471
aggregate marks secured in written and
personality test. If the petitioner is not
even eligible that is the end of the matter.

24. It may be mentioned that another
petitioner Sri S.K. Srivastava had filed
Writ Petition No. 37358 of 2000 which
had been dismissed by a learned Single
Judge by 14.8.2000. In that petition, the
candidature of the petitioner Sri S.K.
Srivastava had been rejected as he did not
posses the essential qualification as the
experience certificate produced by him
was not valid. Against the judgment in
Writ Petition No. 37358 of 2000, Sri S.K.
Srivastava filed Special Appeal No. 516
of 2000 which is pending in this Court.

25. The learned Single Judge in his
impugned judgment in the petition filed
by S.K. Srivastva has observed at the end
of his judgment that "the result of
petitioner no. 1 shall be subject to the
result of Special Appeal No. 516 of 2000
filed
by
petitioner
no.
1
(S.K.
Srivastava)."

26. The learned Single Judge in his
judgement in the case of the respondent in
this Appeal Sri Surendra Kumar Singh
has merely followed the judgment in Writ
Petition No. 55771 of 2000 filed by S.K.
Srivastava. It may be mentioned that the
candidature of Sri S.K. Srivastava had
been rejected on an altogether different
ground than the candidature of Sri
Surendra Kumar Singh. The candidature
of Sri S.K. Srivastava was rejected on the
ground that he did not posses the
appropriate
experience
certificate,
whereas the candidature of Sri S.K.
Srivastva was rejected on the ground that
he was overage. The Writ Petition filed by
Sri Surendra Kumar Singh (in writ
petition no. 30063 of 1999) by which he
challenged
the
order
rejecting
his
candidature on the ground that he was
overage was dismissed by this Court and
it was held that he was overage. When Sri
Surendra Kumar Singh, the respondent in
this Appeal has been held by this Court to
be overage, we fail to see how the learned
Single Judge could have allowed his writ
petition following the judgment in the
case of Sri S.K. Srivastava whose
candidature had been rejected on an
altogether different ground. If a person is
overage obviously he cannot appear in the
examination.

27. For this reason also the judgment
is not sustainable in law. The Appeal is
therefore
allowed.
The
impugned
judgment is set-aside. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 13955 of 1990

Nagar Mahapalika, Varanasi and another

 ...Petitioners
Versus.
U.P.
Public
Services
Tribunal
No.II,
Lucknow and others
 ...Respondents

Counsel for the Petitioners:
Sri Beni Prasad Agarwal
Sri C.K. Parekh
Sri Anurag Pathak

Counsel for the Respondents:
Sri S.S. Sharma
Sri M.C. Dwivedi
Sri D.V. Jaiswal
S.C.

http:\\allahabadhighcourt.nic.in