# Vipin Bihari Singh & others v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1098
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-16
- **Case number:** Civil Misc. Writ Petition No. 28351 of 2009
- **Bench:** Amitava Lala, Ashok Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipin-bihari-singh-others-v-state-of-u-p-and-others-41390
- **Pages:** 11

## Headnote

Sri Ashok Khare, Sr. Advocate
Sri Ravi Shanker Prasad, (Addl.C.S.C.)
Sri V.P. Varshney.
Sri V.P. Mathur
Sri Siddharth Nandan.
Sri Siddharth Khare
Sri A.K. Mishra
Sri Saroj Yadav

U.P. Public Works Department Group 'B'
Civil Engineering Service Rules 2004Rule 15 (2)-selection of Civil Engineerheld on basis of interview-petitioner
participated but fail selection of validity
challenged on ground in electrical and
Mechanical Engineering selection is mad
after written examination and interviewno national basis to adopt separate
mode-after participation in selectionunsuccessful candidate has not right to
question the made of selection-even if
constitutional
validity
can
not
be
3 All] Vipin Bihari Singh and others V. State of U.P. and others
1099
challenged
after
5
years-petition
dismissed.

Held: Para 15

Against this background, if we analyse
the whole issue, we can get two aspects
of the matter. Firstly, whether a person
after participating in the interview can
turn round and challenge the same; and
secondly, whether the Rules, 2004 made
for selection process in the year 2004
can
be
challenged
after
becoming
unsuccessful in the year 2009 by way of
this writ petition. We are of the definite
conclusion on the strength of facts and
law as well as analysis thereof that the
petitioners' claim is totally contrary to
the settled position of law, therefore,
they are not entitled to any relief as
claimed herein either for declaration of
Rule-15 (2) of the Rules, 2004 as ultra
vires in nature or for any relief in
connection with selection process, in
which they have participated but failed.
Case law discussed:
AIR 2001 SC 152, AIR 1955 SC 19, 2003 (2)
LBESR 899 (All), 2009 (1) AWC 239, 1997 (9)
SCC 527, AIR 1989 SC 903, 2007 (8) SCC 100,
2009 (5) SCC 515, 2008 (4) SCC 171, 2008 (2)
ADJ 205 (DB), 2002 (2) SCC 712, 1986 (Supp)
SCC 285, 1985 (4) SCC 417 : 1986 SCC (L&S)
88,,1994 (1) SCC 150, 2003 (2) SCC 132, 2003
(11) SCC 559, 2008 (4) SCC 619, (2000 (7)
SCC 719, 1998 (2) SCC 566, AIR 1964 SC
1823, 1981 (4) SCC 159, 2007 (6) SCC 236,
1996 (3) SCC 709.

## Text

1098 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
be an innocent person and all his benefits
should be released.

4. The position in law is that there is
no power conferred under Section 389 of
the Criminal Procedure Code to stay the
conviction itself and it is only the
execution of the sentence which can be
suspended. The order dated 03.08.2007, a
copy whereof is annexure 2 to the writ
petition,
is
inconsonance
with
the
provisions of Section 389 Cr.P.C.

5.

The
provision
has
been
considered and explained in this regard in
several cases and two latest decisions are
that of Navjot Singh Sidhu Vs. State of
Punjab and another reported in (2007) 2
SCC 574 paragraphs 4 to 6 and in the
case of Sanjay Dutt Vs. State of
Maharashtra
through
CBI
Bombay
reported in (2009) 5 SCC 787 and others
where the inherent power of the High
Court under the Cr.P.C. has been
acknowledged and it has been held that in
rare cases such an order for compelling
reasons can be passed whereby the
conviction itself can be suspended. The
High Court in the instant case has not
exercised its inherent powers as above
and has only suspended the execution of
the sentence.

6. Keeping in view the said
pronouncement and in the peculiar facts
of this case, it will be open to the
petitioner
to
approach
the
District
Inspector of Schools, who shall examine
the claim of the petitioner in the light of
the aforesaid position of law and pass an
appropriate order within 8 weeks from the
date of production of a certified copy of
this order before him.

With the aforesaid observations, the
writ petition is disposed of.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2009

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE ASHOK SRIVASTAVA, J.

Civil Misc. Writ Petition No. 28351 of 2009
And:
Civil Misc. Application No. 190089 of 2009
Connected with:
Civil Misc. Writ Petition No. 37581 of 2009

Vipin Bihari Singh & others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel or the Petitioners:
Dr. R.G. Padia, Sr. Advocate,
Sri Prakash Padia
Sri Vikas Budhwar.

Counsel for the Respondents:
Sri Ashok Khare, Sr. Advocate
Sri Ravi Shanker Prasad, (Addl.C.S.C.)
Sri V.P. Varshney.
Sri V.P. Mathur
Sri Siddharth Nandan.
Sri Siddharth Khare
Sri A.K. Mishra
Sri Saroj Yadav

U.P. Public Works Department Group 'B'
Civil Engineering Service Rules 2004Rule 15 (2)-selection of Civil Engineerheld on basis of interview-petitioner
participated but fail selection of validity
challenged on ground in electrical and
Mechanical Engineering selection is mad
after written examination and interviewno national basis to adopt separate
mode-after participation in selectionunsuccessful candidate has not right to
question the made of selection-even if
constitutional
validity
can
not
be
3 All] Vipin Bihari Singh and others V. State of U.P. and others
1099
challenged
after
5
years-petition
dismissed.

Held: Para 15

Against this background, if we analyse
the whole issue, we can get two aspects
of the matter. Firstly, whether a person
after participating in the interview can
turn round and challenge the same; and
secondly, whether the Rules, 2004 made
for selection process in the year 2004
can
be
challenged
after
becoming
unsuccessful in the year 2009 by way of
this writ petition. We are of the definite
conclusion on the strength of facts and
law as well as analysis thereof that the
petitioners' claim is totally contrary to
the settled position of law, therefore,
they are not entitled to any relief as
claimed herein either for declaration of
Rule-15 (2) of the Rules, 2004 as ultra
vires in nature or for any relief in
connection with selection process, in
which they have participated but failed.
Case law discussed:
AIR 2001 SC 152, AIR 1955 SC 19, 2003 (2)
LBESR 899 (All), 2009 (1) AWC 239, 1997 (9)
SCC 527, AIR 1989 SC 903, 2007 (8) SCC 100,
2009 (5) SCC 515, 2008 (4) SCC 171, 2008 (2)
ADJ 205 (DB), 2002 (2) SCC 712, 1986 (Supp)
SCC 285, 1985 (4) SCC 417 : 1986 SCC (L&S)
88,,1994 (1) SCC 150, 2003 (2) SCC 132, 2003
(11) SCC 559, 2008 (4) SCC 619, (2000 (7)
SCC 719, 1998 (2) SCC 566, AIR 1964 SC
1823, 1981 (4) SCC 159, 2007 (6) SCC 236,
1996 (3) SCC 709.

(Delivered by Hon'ble Amitava Lala, J.)

1. Since both the aforesaid writ
petitions involving similar controversy are
connected with each other, therefore, the
same are being decided by this common
judgement having binding effect upon
both the matters, taking Civil Misc. Writ
Petition No. 28351 of 2009 as leading
one.

2. This writ petition, being Civil
Misc. Writ Petition No. 28351 of 2009,
has been filed by the petitioners praying
inter alia as follows:

"i. Issue a writ order or direction in the
nature of mandamus declaring the
Rule 15 (2) of the Uttar Pradesh
Public Works Department Group "B"
Civil Engineering Service Rules,
2004, as notified on 3.1.2004 as
ultra-vires of Article 14 read with
Article 16 of the Constitution of
India.

ii. Issue a writ order or direction in the
nature of Mandamus commanding
the rule making authority to provide
for
the
criteria
of
written
examination followed by viva-voce
for the purposes of direct recruitment
on the post of Assistant Engineer in
Public Works Department.

iii. Issue a writ order or direction in the
nature of certiorari calling for the
record and quash the advertisement
published in the Employment News
dated 7-13th June, 2008 being
Advertisement No. 1/2008-09 dated
7.6.2008 in so far as it pertains to the
post of Assistant Engineer in Public
Works Department in the pay scale
of Rs.8000-275-13500.

iv. Issue a writ order or direction in the
nature of certiorari calling for the
record and quashing the entire
selection held in pursuance of the
advertisement
published
in
the
Employment News dated 7-13th
June, 2008 being Advertisement No.
1/2008-09 dated 7.6.2008 on the post
of Assistant Engineer in Public
1100 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Works Department in the pay scale
of Rs.8000-275-13500.

v. Issue a writ order or direction in the
nature of certiorari calling for the
record and quashing the result
published
in
pursuance
of
the
advertisement so offloaded from the
Internet (Annexure No. 4 to the writ
petition).

vi. Issue a writ order or direction in the
nature of mandamus commanding
the respondents to conduct the
selection afresh on the post of
Assistant Engineer in Public Works
Department in the pay scale of
Rs.8000-275-13500 in pursuance of
the advertisement published in the
Employment News dated 7-13th
June, 2008 being Advertisement No.
1/2008-09
dated
7.6.2008,
after
resorting to written examination
followed by viva-voce examination.

vii. Issue any other suitable writ, order or
direction, as this Hon'ble Court may
deem fit and proper under the facts
and circumstances existing in the
present case.

viii. Award the costs of this writ petition
in favour of the petitioners."

3. Virtually the petitioners have
challenged the advertisement, which has
been meant for selection only by way of
interview but not written examination
followed by interview. Contentions of the
petitioners are strongly opposed by the
State and the private parties i.e. selected
candidates.

4. Admittedly, the petitioners have
participated in the selection process,
which includes examination/interview as
per the advertisement, and came out
unsuccessfully and thereafter challenged
the selection process. Therefore, by virtue
of well settled principle there is no
necessity to interfere with such selection
process, which has been conducted by the
experts. But since vires of Rule- 15(2) of
the
Uttar
Pradesh
Public
Works
Department Group "B" Civil Engineering
Service Rules, 2004 (hereinafter in short
called as the 'Rules, 2004') has been
challenged, we are constrained to enter
into merit of the matter to come to a
definite conclusion in this respect. The
Rules, 2004 was made in the year 2004
for
civil
engineering
services.
The
procedure for recruitment as provided
under such Rule is as follows:

"14. Determination of vacancies--
The appointing authority shall determine
and intimate to the Commission the
number of vacancies to be filled during
the course of the year of recruitment as
also the number of vacancies to be
reserved for candidates belonging to
Scheduled Castes, Scheduled Tribes and
other categories under Rule 6. The
vacancies
to
be
filled
by
direct
recruitment and promotion through the
Commission shall be intimated to them.
15.
Procedure
for
direct
recruitment--(1) Application for being
considered
for
selection
by
direct
recruitment shall be invited by the
Commission in the prescribed proforma
published in the advertisement issued by
the Commission.
(2) The Commission shall, having
regard to the need for securing due
representation of the candidates belonging
to the Scheduled Castes, Scheduled Tribes
and other categories in accordance with
Rule 6, call for interview such number of
3 All] Vipin Bihari Singh and others V. State of U.P. and others
1101
candidates, who possess the requisite
qualifications as they consider proper.
(3) The Commission shall prepare a
list of candidates in order to their
proficiency, as disclosed by the marks
obtained by each candidate in the
interview. If two or more candidates
obtain equal marks, the candidate senior
in age shall be placed higher in the list.
The Commission shall forward the list to
the appointing authority.
16. Procedure for recruitment by
promotion through the Commission--
Recruitment by promotion through the
Commission shall be made on the basis of
seniority subject to the rejection of the
unfit in accordance with the Uttar Pradesh
Promotion by Selection in Consultation
with
Public
Service
Commission
(Procedure) Rules, 1970 as amended from
time to time.
17. Combined select list-- If in any
year of recruitment appointments are
made both by direct recruitment and by
promotion, a combined select list shall be
prepared
by
taking
names
of
the
candidates from the relevant lists, in such
manner that the prescribed percentage is
maintained, the first name in the list being
of the person appointed by promotion."

5. The Rules, 2004 has been made in
exercise of the powers conferred by the
proviso to Article 309 of the Constitution
of India and notified on 03rd January,
2004. The advertisement in question
issued as per said Rules is available on
pages-66 & 67 of the writ petition. The
petitioners have contended that while
procedure of written examinations is
being followed in respect of electrical and
mechanical branches under the Public
Works Department of the State, there is
only
deviation
in
respect
of
civil
engineering branch. Relying upon the
judgement reported in AIR 1973 SC 930
(Janki Prasad Parimoo and others Vs.
State of Jammu & Kashmir and others)
Dr. R.G. Padia, learned Senior Counsel
appearing for the petitioners, wanted to
establish that the interview can not be
made the sole test in cases of efficiency
test, which is otherwise dependable upon
several considerations. When in the
selection the merit takes first place, it is
implicit in such selection that the persons
must not be just average. Dr. Padia has
relied upon various other rules in support
of his contention. He has also relied upon
the judgement reported in AIR 2001 SC
152 (Praveen Singh Vs. State of Punjab
and others) to establish that interview
should not be the only method of
assessment of the merits of candidates.
The vice of manipulation can not be ruled
out in viva voce test. Though interview
undoubtedly is a significant factor in the
matter of appointments, it plays a
strategic role but it also allows creeping
of a lacuna rendering the appointments
illegitimate. Obviously it is an important
factor but ought not to be the sole guiding
factor since reliance thereon only may
lead to a "sabotage of the purity of the
proceedings". In such judgement it has
been further held that while it is true that
the
administrative
or
quasi-judicial
authority clothed with the power of
selection and appointment ought to be left
unfettered in adaptation of procedural
aspect but that does not, however, mean
and imply that the same would be made
available to an employer at the cost of fair
play, good conscience and equity. While
we go through the factual aspect of the
matter, we find that, in the referred case,
the essentiality of viva voce test, however,
stands established by reason of express
narration
under
the
scheme
of
examination viz. "followed by viva voce
1102 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
test". In the event of there being a written
test for elimination, the scheme of the
examination would not have been detailed
in the manner, as it has been so stated. In
the instant case, there is no such thing.
Not only in the advertisement but also in
the Rules, 2004 it has been categorized
that selection will be made on the basis of
interview. Therefore, no question of
abrupt decision by the authority is
available to establish the more fair play,
good conscience and equity on the part of
the authority.

6. By filing an application under
Article 215 of the Constitution of India an
incidental issue has also been raised by
the petitioners saying that on 09th July,
2009 though this Court verbally observed
not to issue any appointment letter in
respect of the appointment on the post of
Assistant
Engineer
pursuant
to
the
selection, which is under challenge, but
the same was done by the appropriate
authority. Therefore, there is a clear case
of contempt and unless the contempt is
purged, writ petition can not be required
to be heard and disposed of. To such
application, Sri Kapil Dev, Principal
Secretary, Department of Public Works
Department,
Government
of
Uttar
Pradesh, Lucknow has filed a counter
affidavit by saying that in another writ
petition, being Writ Petition No. 918
(S/B) of 2009 (Om Prakash and another
Vs. State of U.P. and others) the Lucknow
Bench of this High Court has passed an
order on 02nd July, 2009 directing the
respondents
that
the
vacancies
of
Assistant Engineers (Civil) meant for the
promotional
quota
through
direct
recruitment will not be filled up but it
shall be open for the respondents to fill up
the vacancies falling within the quota of
direct
recruitment.
Against
this
background, the desire of order dated 09th
July, 2009 passed by this Division Bench
was to examine the stand of the State on
exchange of affidavits. The respondents
have also taken a preliminary objection in
this writ petition to the effect that after
making participation in the selection
process it is not open for the petitioners to
challenge the same. Therefore, whatever
has been done by the State, the same has
been done in compliance of the order
passed on 02nd July, 2009 i.e. prior to the
oral observation made by this Court on
09th July, 2009. However, since Dr. Padia
has repeatedly insisted for purging the
contempt first before going into the merit
of the writ petition, we have carefully
considered the respective submissions of
the contesting parties to arrive at a
conclusion under Article 215 of the
Constitution of India and found that
issuance of appointment letter, if any, by
the State can not be held to be wilful and
deliberate flouting of the order dated 09th
July, 2009. The reason behind the same is
that this Court on 09th July, 2009 might
have made a stray observation without
knowing the fact that there is a prevailing
interim order passed by a parallel
Division Bench of this Court on 02nd July,
2009.
Secondly,
both
the
Division
Benches are the Court so far as the
respondents are concerned. Had the case
been that the respondents did not comply
with the order dated 02nd July, 2009, in
such a situation they could have faced a
direct contempt of Court for flouting an
order. It would have been proper for the
learned
Standing
Counsel
appearing
before this Court on 09th July, 2009 to
inform the Court that there is an order
existing from 02nd July, 2009, but that
might be a mistake on the part of the
Counsel and for that it can not be held by
this Court that there is a clear case of
3 All] Vipin Bihari Singh and others V. State of U.P. and others
1103
wilful and deliberate contempt of order of
the Court by the respondent authority.
Hence, the explanation with apology as
made by the deponent (Sri Kapil Dev) in
support of his defence can be accepted as
an appropriate explanation and thus, the
cause of contempt is purged.

7. Dr. Padia has cited a Constitution
Bench judgement of the Supreme Court
reported in AIR 1955 SC 19 (M.Y.
Shareef and another Vs. Hon'ble
Judges of the Nagpur High Court and
others) to establish that the proposition is
well settled and self-evident that there can
not be both justification and an apology.
Two things are incompatible. Again an
apology is not a weapon of defence to
purge the guilty of their offence, nor is it
intended to operate as a universal
panacea, but it is intended to be evidence
of real contriteness.

8. According to us, interpretation of
law as propounded by the Constitution
Bench of the Supreme Court can not be
applicable herein in view of the facts and
circumstances of the case. To maintain
the rigour of the Court, the Court seeks
for apology but when it is merged with
the available justification, it seems to be
additional. The justification, which has
been given by the respondent authority
herein, is neither illogical nor mere or
bare defence, so that we shall ignore the
justification and only accept the apology
upon holding that there is a clear
intentional violation of the order of the
Court. We do not require any further
discussion in the matter in view of the
facts and circumstances of this case and
as such, once again we hold and say that
the cause of contempt is purged and the
contempt application is treated to be
disposed of on the basis of such
observations and order, however, without
imposing any cost.

9. So far as the question of locus
standi of the petitioners to maintain the
writ petition is concerned, we have come
across several decisions of the Supreme
Court and this High Court. In 2003 (2)
LBESR 899 (All) (Anand Narain Singh
Vs. U.P. Secondary Education Services
Selection Board, Allahabad & ors.) a
Division Bench of this Court has held that
once a candidate has taken a chance by
appearing in interview, it is not open for
him to challenge the advertisement or to
challenge the rules. This Court as well as
the Supreme Court have in various cases
held that once a candidate has taken a
chance of appearing before the Board at
the time of selection then it is not open for
him
to
challenge
the
selection
proceedings or to challenge the rules or
advertisement
under
which
he
has
appeared and as such the candidates have
no locus standi. However, it has also been
held that in case of palpably arbitrary
exercise of power the Court can interfere
and declare the same as void. Further, a
Division Bench of this Court in 2009 (1)
AWC 239 (Rajesh Kumar Srivastava
and others Vs. State of U.P. and others)
has held that when selection as per the
advertisement is to be made on the basis
of performance of candidates in written
test and interview but the selection is
made only on the basis of the interview,
the same is vitiated in law and, therefore,
writ petition is maintainable. In 1997 (9)
SCC 527 (Raj Kumar and others Vs.
Shakti Raj and others) it has been held
by the Supreme Court that when the
Government
has
committed
glaring
illegalities in the procedure to get the
candidates for examination under the
rules, the principle of estoppel by conduct
1104 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
or acquiescence has no application. From
AIR 1989 SC 903 (Deepak Sibal Vs.
Punjab University and another) we find
that it is now well settled that Article 14
of
the
Constitution
forbids
class
legislation, but does not forbid reasonable
classification. Whether a classification is
a permissible classification or not, two
conditions must be satisfied, namely, (i)
that the classification must be founded on
an
intelligible
differentia,
which
distinguishes persons or things that are
grouped together from others left out of
the group, and (ii) that the differentia
must have a rational nexus to the object
sought to be achieved by the statute in
question. In the instant case, the Rules,
2004 is made in the year 2004, which
relates to civil engineering alone, and the
advertisement
has
not
been
issued
contrary
to
such
Rule.
In
the
advertisement the mode of selection
through either examination or interview
was prescribed. The Commission adopted
the process of interview. Therefore, there
is nothing to be said that the same is an
arbitrary action on the part of the
authority. Secondly, the Rules, 2004 is
not made for the entire selection of
engineering, be it civil or be it mechanical
or be it electrical. Thus, the candidates of
the civil engineering are differentiated
from others. In this case, the Rules, 2004
itself has been made for the purpose of
civil engineering and civil engineering
alone. Therefore, there is no question of
any discrimination from one to others in
making such selection by the Selection
Board consisting of several persons being
experts not an individual. The rules of
plurality in making selection is always
appreciated by the Courts of law unless,
of course, any allegation is made against
any member of such Selection Board. But
no such case is available herein. In 2007
(8) SCC 100 (Union of India and others
Vs. S. Vinodh Kumar and others) it has
been held that the candidates who appear
for examination do not have any vested
right for appointment. It is well settled
that even wait-listed candidates have no
legal right to be appointed. It is well
known that even selected candidates do
not have any legal right in this behalf.
Ultimately it has been held by the
Supreme Court in such judgement that it
is also well settled that those candidates
who had taken part in the selection
process knowing fully well the procedure
laid down therein are not entitled to
question the same and, like the present
case, it was held therein that the Court is
not oblivious that there are certain
exceptions to the Rules. But in the present
case the Court is not concerned with the
same.

10. Mr. Ravi Shanker Prasad,
learned
Additional
Chief
Standing
Counsel appearing for the State, has
contended that it has been held by the
Supreme Court in 2009 (5) SCC 515
(K.A. Nagamani Vs. Indian Airlines
and others) that when Corporation did
not violate the right to equality guaranteed
under Articles 14 and 16 of the
Constitution and the candidates having
participated in the selection process along
with the contesting respondents therein
without any demur or protest, they can not
be allowed to turn round and question the
very same process having failed to
qualify.
In
2008
(4)
SCC
171
(Dhananjay Malik and others Vs. State
of Uttaranchal and others) it was also
similarly held by the Supreme court that
once the candidates participated in the
selection process without any demur, they
are estopped from complaining that the
selection process was not in accordance
3 All] Vipin Bihari Singh and others V. State of U.P. and others
1105
with the rules. If they think that the
advertisement and selection process were
not in accordance with the rules, they
could have challenged the advertisement
and
selection
process
without
participating in the selection process. This
has not been done. A Division Bench of
this Court, in which one of us (Amitava
Lala, J.) was a member, has held in the
judgement reported in 2008 (2) ADJ 205
(DB) (Dr. U.S. Sinha Vs. State of U.P.
and others), as follows:

"15. Last, but not the least, point
pertains to locus standi of the writ
petitioners. Since they have participated
in the selection process and become
unsuccessful, can not challenge the
discretion of the selectors in respect of the
experience, as categorically held in 2007
(7) Supreme 433, Trivedi Himanshu
Ghanshyambhai
v.
Ahmedabad
Municipal
Corporation
and
others,
therefore, such latest view of the Supreme
Court which is clearly applicable in these
writ petitions, can not be avoided under
any circumstance."

11. In 2002 (2) SCC 712 (G.N.
Nayak Vs. Goa University and others)
the Supreme Court has held that when a
candidate was aware about the eligibility
criteria for the post yet applied and
appeared at the interview without protest,
he can not be allowed to contend that the
eligibility criteria were wrongly framed.
In 1986 (Supp) SCC 285 (Om Prakash
Shukla Vs. Akhilesh Kumar Shukla
and
others)
the
Supreme
Court
discouraged
the
challenge
to
the
examination after participating in the
same without protest.

12. So far as merit is concerned, we
find that in 1985 (4) SCC 417 : 1986
SCC (L&S) 88 (Ashok Kumar Yadav
and others Vs. State of Haryana and
others) a Constitution Bench of the
Supreme Court has held that the written
examination which is definitely more
objective in its assessment than the viva
voce test will lose all meaning and
credibility and the viva voce test, which is
to
some
extent
subjective
and
discretionary in its evaluation, will
become the decisive factor in the process
of selection. But on the question of viva
voce examination it has been held by the
Constitution Bench that suspicion can not
take the place of proof and can not strike
down the selections made on the ground
that the evaluation of the merits of the
candidates in the viva voce examination
might be arbitrary. It is necessary to point
out that the Court can not sit in judgement
over
the
marks
awarded
by
the
interviewing bodies unless it is proved or
obvious that the marking is plainly and
indubitably arbitrary or affected by
oblique motives. It is only if the
assessment is patently arbitrary or the risk
of arbitrariness is so high that a
reasonable
person
would
regard
arbitrariness
as
inevitable,
that
the
assessment of marks at the viva voce test
may be regarded as suffering from the
vice of arbitrariness. In 1994 (1) SCC 150
(Anzar Ahmad Vs. State of Bihar and
others) it has been held by the Supreme
Court that the question of weightage to be
attached to viva voce would not arise
where the selection is to be made on the
basis of interview only. From 2003 (2)
SCC 132 (Jasvinder Singh and others
Vs. State of J&K and others) we find
the Supreme Court has held that what
ultimately required to be ensured is as to
whether
any
oblique
intention
or
arbitrariness is reflected or not.
1106 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
13. It has been pointed out by Mr.
Ashok Khare, learned Senior Counsel
appearing for the private respondents, by
citing the judgement reported in 2003 (11)
SCC 559 (State of Punjab and others
Vs. Manjit Singh and others) that it is
certainly
the
responsibility
of
the
Commission to make the selection of
efficient people amongst those who are
eligible for consideration. The unsuitable
candidates could well be rejected in the
selection by interview. It is not the
question of subservience but there are
certain matters of policies, on which the
decision
is
to
be
taken
by
the
Government.
Independent
and
fair
working of the Commission is of utmost
importance. In 2008 (4) SCC 619
(Sadananda
Halo
and
others
Vs.
Momtaz Ali Sheikh and others) the
Supreme Court has held that it is also a
settled
position
that
unsuccessful
candidates can not turn back and assail
the selection process. In 2000 (7) SCC
719 (Kiran Gupta and others Vs. State
of U.P. and others) it has been held by
the Supreme Court that it is difficult to
accept the omnibus contention that
selection on the basis of viva voce only is
arbitrary and illegal. In 1998 (2) SCC 566
(Siya Ram Vs. Union of India and
others) it has been held that sometimes,
only interview is considered to be best
method for certain posts. In AIR 1964 SC
1823 (R. Chitralekha Vs. State of
Mysore and others) a Constitution
Bench of the Supreme Court has held that
if there can be manipulation or dishonesty
in allotting marks at interviews, there can
equally be manipulation in the matter of
awarding
marks
in
the
written
examinations. In the ultimate analysis,
whatever method is adopted its success
depends on the moral standards of the
members
constituting
the
selection
committee and their sense of objectivity
and devotion to duty. In 1981 (4) SCC
159 (Lila Dhar Vs. State of Rajasthan
and others) it has been held that
ordinarily, recruitment to public service is
regulated by the rules made under the
proviso to Article 309 of the Constitution
and it is not for the Courts to redetermine
the appropriate method of selection and
the relative weight to be attached to the
various tests, unless exaggerated weight
has been given with proven or obvious
oblique motives. The written examination
assesses the man's intellect and the
interview tests the man himself and "the
twin shall meet" for a proper selection.
But there can not be any rule of thumb
regarding the precise weight to be
attached respectively to the written test
and the interview. It must vary from
service to service according to the
requirement of the service, to which
recruitment is made, the source-material
available for recruitment, the composition
of the Interview Board and several like
factors.

14. On a question of vires of the
rule, we would like to place here the ratio
of the judgement reported in 2007 (6)
SCC 236 [Greater Bombay Coop. Bank
Ltd. Vs. United Yarn Tex (P) Ltd. and
others], whereunder it has been held that
the constitutional validity of an Act can
be challenged only on two grounds viz. (i)
lack of legislative competence; and (ii)
violation of any of the fundamental rights
guaranteed in Part III of the Constitution
or of any other constitutional provision.
No third ground can invalidate a piece of
legislation. In considering the validity of a
statute the presumption is always in
favour of constitutionality and the burden
is upon the person who attacks it to show
that there has been transgression of
3 All] Vipin Bihari Singh and others V. State of U.P. and others
1107
constitutional principles. For sustaining
the constitutionality of an Act, the Court
may take into consideration matters of
common knowledge, reports, preamble,
history of the times, objection of the
legislation and all other facts which are
relevant. It must always be presumed that
the legislature understands and correctly
appreciates the need of its own people and
that discrimination, if any, is based on
adequate grounds and considerations. It is
also well settled that the Courts will be
justified in giving a liberal interpretation
in order to avoid constitutional invalidity.
A provision conferring very wide and
expansive powers on authority can be
construed in conformity with legislative
intent of exercise of power within
constitutional limitations. Where a statute
is silent or is inarticulate, the Court would
attempt to transmutate the inarticulate and
adopt a construction which would lean
towards constitutionality albeit without
departing from the material of which the
law is woven. While examining the
challenge to the constitutionality of an
enactment, the approach of the Court is to
start
with
the
presumption
of
constitutionality. The Court should try to
sustain its validity to the extent possible.
It should strike down the enactment only
when it is not possible to sustain it. The
Court should not approach the enactment
with a view to pick holes or to search for
defects of drafting, must less inexactitude
of language employed. Indeed, any such
defects of drafting should be ignored out
as part of the attempt to sustain the
validity/constitutionality of the enactment.
The
Court
must
recognise
the
fundamental nature and importance of
legislative process and accord due regard
and deference to it, just as the legislature
and the executives are expected to show
due regard and deference to the judiciary.
After all an Act made by the legislature
represents the will of the people and that
can not be lightly interfered with. The
unconstitutionality must be plainly and
clearly established before enactment is
declared as void. The same approach
holds good while ascertaining intent and
purpose of an enactment or its scope and
application. In 1996 (3) SCC 709 (State
of A.P. And others Vs. McDowell & Co.
and others) it has been observed by the
Supreme Court that no enactment can be
struck down by just saying that it is
arbitrary or unreasonable. Some or other
constitutional infirmity has to be found
before invalidating an Act. The Court can
not sit in judgement over their wisdom.

15. Against this background, if we
analyse the whole issue, we can get two
aspects of the matter. Firstly, whether a
person after participating in the interview
can turn round and challenge the same;
and secondly, whether the Rules, 2004
made for selection process in the year
2004 can be challenged after becoming
unsuccessful in the year 2009 by way of
this writ petition. We are of the definite
conclusion on the strength of facts and
law as well as analysis thereof that the
petitioners' claim is totally contrary to the
settled position of law, therefore, they are
not entitled to any relief as claimed herein
either for declaration of Rule-15 (2) of the
Rules, 2004 as ultra vires in nature or for
any relief in connection with selection
process, in which they have participated
but failed.

16. Hence, in totality the writ
petitions can not be sustained and,
therefore,
the
same
are
dismissed,
however, without imposing any cost.
Interim order, if any, stands vacated.
---------
1108 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.12.2009

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No. 33524 of 2009

Nazma

...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Pankaj Bharti

Counsel for the Opposite Party:
Govt. Advocate

Code of Criminal Procedure-Section 319Application for summoning the accusednot named in FIR-on basis of evidence
recorded under Section 244-refusal on
ground
that
statement
recorded
is
evidence can be considered by the Trail
Court
and
can
not
be
basis
for
summoning-held-illegal-word 'evidence'
used under Section 319 means the
statement
recorded
by
Court
in
accordance with provisions of evidence
Act while the word evidence used under
Section 244 C.P.C.-as recorded by Court
during Trail.

Held: Para 3

The opinion by A.C.J.M. Court No. 1,
Muzaffarnagar is wholly illegal. If a
person has not been summoned under
Section
204
Cr.P.C.
and
his
name
subsequently
appears
in
statement
recorded by the Court under Section 244
Cr.P.C. then application under Section
319
Cr.P.C.
is
maintainable.
The
statement under Section 244 Cr.P.C.
recorded by the Court is an "evidence".
The Court can always rely on such a
statement and, therefore, prosecution
can always utilize the said statement
under Section 244 Cr.P.C. to add any
person as an accused to stand trial along
with the already trying accused. Merely
because Sabina, who was desired to be
summoned by the prosecution under
Section 319 Cr.P.C., was not summoned
under Section 204 Cr.P.C. is no ground
not to summon her under Section 319
Cr.P.C. and ask her to stand trial. It is
only the merit of the statement under
Section 244 Cr.P.C. which is relevant for
utilizing power under Section 319 Cr.P.C.

(Delivered by Hon'ble Vinod Prasad, J.)

1.
A.C.J.M.
Court
No.
1,
Muzaffarnagar has passed an illegal order
on 16.7.2009 in Case No. 3351/9 of 2008
(Nazma
Vs
Nawab
Arshad)
under
Sections 406, 506 I.P.C., P.S. Kotwali
Nagar, District Muzaffar Nagar. It has
rejected the prayer of the prosecution to
summon Shabina under Section 319
Cr.P.C. for the reason that under Section
204 Cr.P.C. she was not summoned.
A.C.J.M. has observed that if a person has
not been summoned under Section 204
Cr.P.C. then, if his/her name appears in
statement under Section 244 Cr.P.C., then
the application under Section 319 Cr.P.C.
is not maintainable in his/her respect.

2. I have heard learned counsel for
the applicant and learned A.G.A.

3. The opinion by A.C.J.M. Court
No. 1, Muzaffarnagar is wholly illegal. If
a person has not been summoned under
Section 204 Cr.P.C. and his name
subsequently
appears
in
statement
recorded by the Court under Section 244
Cr.P.C. then application under Section
319
Cr.P.C.
is
maintainable.
The
statement under Section 244 Cr.P.C.
recorded by the Court is an "evidence".
The Court can always rely on such a
statement and, therefore, prosecution can
always utilize the said statement under