# Vivek Kumar Sharma & Anr v. High Court of Judicature at Allahabad & Ors

- **Citation:** (2023) 8 ILRA 991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-09
- **Case number:** Writ-A No. 19678 of 2019
- **Bench:** Saumitra Dayal Singh, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-kumar-sharma-anr-v-high-court-of-judicature-at-allahabad-ors-50708
- **Pages:** 32

## Headnote

Civil Law
-
Uttar
Pradesh
Higher
Judicial Service (UPHJS) Examination,
2016 - Challenge to selection process -
Alleged irregularities in interview process -
Moderation
of
marks
-
Eligibility
of
candidates - Postponement of interviews -
Compliance
with
U.P.
Higher
Judicial
Service Rules, 1975.

Held:
No
Illegality
in
Interview
Process:
The
petitioners'
claim
of
inadequate
interview
duration
(8-10
minutes instead of the prescribed 25-30
minutes under Appendix 'G' of the U.P.
Higher Judicial Service Rules, 1975) was
rejected. The court held that the time limit
is
directory,
not
mandatory,
as
no
consequence
is
prescribed
for
noncompliance. The interview boards, as expert
panels,
have
discretion
to
assess
candidates' suitability based on ability,
character, personality, and physique, and
no
evidence
of
unscientific
or
unfair
evaluation was found. Writ dismissed.
Case Law:

## Text

_Characters 0–39,982 of 102,465. This is a partial read: ask again with offset=39982 for what follows._

8 All. Vivek Kumar Sharma & Anr. Vs. High Court of Judicature at Allahabad & Ors.
991
exercise shall be completed expeditiously,
preferably within a period of six months
from today.
----------
(2023) 8 ILRA 991
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE VINOD DIWAKAR, J.

Writ-A No. 19678 of 2019

Vivek Kumar Sharma & Anr. ...Petitioners
Versus
High Court of Judicature at Allahabad &
Ors. ...Respondents

Counsel for the Petitioners:
In Person

Counsel for the Respondents:
C.S.C., Sri Ashish Mishra

Civil Law
-
Uttar
Pradesh
Higher
Judicial Service (UPHJS) Examination,
2016 - Challenge to selection process -
Alleged irregularities in interview process -
Moderation
of
marks
-
Eligibility
of
candidates - Postponement of interviews -
Compliance
with
U.P.
Higher
Judicial
Service Rules, 1975.

Held:
No
Illegality
in
Interview
Process:
The
petitioners'
claim
of
inadequate
interview
duration
(8-10
minutes instead of the prescribed 25-30
minutes under Appendix 'G' of the U.P.
Higher Judicial Service Rules, 1975) was
rejected. The court held that the time limit
is
directory,
not
mandatory,
as
no
consequence
is
prescribed
for
noncompliance. The interview boards, as expert
panels,
have
discretion
to
assess
candidates' suitability based on ability,
character, personality, and physique, and
no
evidence
of
unscientific
or
unfair
evaluation was found. Writ dismissed.
Case Law:

1. Sandeep Gupta Vs High Court of Judicature at
Allahabad (Writ Petition No. 594 of 2016,
Supreme Court, 19.07.2018)

2. Dheeraj Mor Vs High Court of Delhi (2020
SCC OnLine SCC 213)

3. Hirandra Kumar Vs High Court of Judicature
at Allahabad (2020) 17 SCC 401

4. Suraj Bali Singh Vs Registrar General, High
Court of Allahabad (Writ-A No. 20708 of 2012,
Allahabad High Court, 08.05.2017)

5. Dalpat Abasaheb Solunke Vs Dr. B.S.
Mahajan (1990) 1 SCC 305

6. Ashok Kumar Yadav Vs St. of Har. (1985) 4
SCC 417

7. Satpal Vs St. of Har. 1995 Supp (1) SCC 206

8. Sardara Singh Vs St. of Pun. (1991) 4 SCC
555

9. St. of Bihar Vs Bihar Rajya Bhumi Vikas Bank
Samiti (2018) 9 SCC 472

10. Topline Shoes Ltd. Vs Corporation Bank
(2002) 6 SCC 33

11. Kailash Vs Nanhku (2005) 4 SCC 480

12. New India Assurance Comp. Ltd. Vs Hilli
Multipurpose Cold Storage Pvt. Ltd. (2015) 16
SCC 20

13. Pranav Verma Vs Registrar General, High
Court of Punjab & Haryana (Writ Petition No.
565 of 2019, Supreme Court, 13.12.2019)

Result: Writ petition dismissed. No costs.

(Delivered by Hon'ble Saumitra Dayal
Singh, J. & Hon'ble Vinod Diwakar, J.)

1. Heard Shri Vivek Kumar Sharma
(petitioner no.1) and Shri Praveen Singh
(petitioner no.2), in person; Shri Ashish
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Mishra, learned counsel for the High Court
and Shri Arimardan Singh Rajput, learned
Additional Chief Standing Counsel for the
State.

2. Present petition has been filed
seeking a direction upon the High Court, to
moderate and revise the marks awarded to
the petitioners at the scale of average marks
awarded by the two Boards constituted for
the purpose of conducting the interviews at
the U.P.H.J.S. 2016 Examination. Further
direction has been sought to thereafter
consider the petitioners for appointment on
the post of Additional District Judge.

3. First, it may be noted, the
petitioners are practising Advocates. They
have chosen to pursue the writ proceedings,
in person. Yet, they have filed numerous
pleadings. Many of those are repetitive and
not
on
the
format
prevalent,
here.
Therefore, at the beginning of the hearing
itself, we sought a clarification (from both
the petitioners), as to the documents and
affidavits they seek to rely. It was then
stated by the petitioners, they would be
pressing the Writ Petition as supported by
the documents and affidavit appended
thereto as also the Ist Supplementary
Affidavit dated 23.9.2020, running into 253
pages, the IInd Supplementary Affidavit
dated 4.12.2021, running into 26 pages, and
the Rejoinder Affidavit dated 14.3.2022,
running into 25 pages. Of other affidavits,
they specifically stated, such documents
came to be filed erroneously. No reliance
may be placed on them.

4. On 10.05.2016, the High Court of
Judicature
at
Allahabad
(hereinafter
referred to as the High Court) advertised
the Uttar Pradesh Higher Judicial Service
2016 Examination to fill up 72 vacancies in
all. 37 of those vacancies fell under the
Unreserved category; 15 vacancies were
reserved for Scheduled Caste category; 19
vacancies
were
reserved
for
Other
Backward Classes and, 1 vacancy was
reserved for candidates belonging to
Scheduled Tribes. The petitioners claiming
to be practising advocates, applied for
direct recruitment. Being successful at the
Preliminary Examination, they wrote the
Written Examination, on 11.11.2016. They
were again declared successful, vide result
declared on 24.3.2017. In all, 61 candidates
were invited for the Interview, originally
scheduled to be held on 22.04.2017 and
23.04.2017. However, the Interview was
rescheduled
for
29.04.2017
and
30.04.2017. The reason disclosed to the
petitioners was non-availability of the
Chairman of Selection & Appointment
Committee (hereinafter referred to as the
Committee). Two Boards were constituted
to conduct the interviews, over two days.
The petitioners contend, they along with
29-30 others were interviewed by Board
'A' whereas another Board 'B' was also
constituted. It interviewed the remaining
candidates. It is the principal grievance of
the petitioners that the two Boards did not
observe any symmetry in award of marks
such that all candidates who appeared
before Board 'B' were awarded 80 marks,
being the pass marks required to qualify the
Interview test, whereas candidates who
appeared before Board 'A' were generally
awarded less than 80 marks. To the extent
the petitioners were awarded 60 marks by
Board
'A',
they
pray
for
moderation/scaling of those marks awarded
to them. The petitioners further claim
malice. They would assert that the
interview
originally
scheduled
for
22.04.2017 and 23.04.2017 was purposely
postponed accommodating 14 ineligible
candidates. Twelve out of those fourteen
candidates were judicial officers who had
8 All. Vivek Kumar Sharma & Anr. Vs. High Court of Judicature at Allahabad & Ors.
993
not completed seven years of continuous
practice, before applying for the selection.
Remaining two were overaged advocates.
Only to cause undue benefit to the 14
ineligible candidates, the interview was
postponed. Of those, the two advocates
were eventually declared successful. They
are respondent nos. 4 & 5. Reliance has
been placed on a decision of a coordinate
bench of this Court, in Suraj Bali Singh &
Ors. vs Registrar General High Court of
Judicature at Allahabad (Writ - A No.
20708 of 2012) decided on 08.05.2017.
There, it was ruled against that petitioner
(in that case), being more than 45 years of
age on the cut-off date, he was ineligible.

5. Second, it has been submitted,
under Rule 18(1) of the U.P. Higher
Judicial Service Rules, 1975 (hereinafter
referred to as the 'Rules'), the Committee
should have called for interview only such
candidates who may have clearly qualified
for the Interview after scrutiny of their
forms
and
the
Written
Examination.
Respondent no.4 (Sandeep Gupta) and
respondent no.5 (Pratima) were only
permitted to provisionally participate at the
Written
Examination.
However,
their
results were required to be retained in
sealed cover, under order dated 22.07.2016,
passed by the Supreme Court in the case of
respondent no.4 i.e., Sandeep Gupta vs
High Court of Judicature at Allahabad
Through Its Registrar General [Writ
Petition(s) (Civil) No(s). 594 of 2016] and
another order to the similar effect dated
18.7.2016, passed in the case of respondent
no.5, by a division bench of this Court in
Service Bench No. 13984 of 2016
(Pratima vs Hon'ble High Court of
Judicature at Allahabad Thru R.G. &
Ors.). Since no further order was passed,
either by the Supreme Court or by this
Court to allow either respondent no.4 or
respondent no.5 to participate in the
Interview, the Committee erred in allowing
those candidates an opportunity to be
interviewed and be selected, contrary to the
provisions of Rule 18(1) of the Rules.

6. Third, referring to the Appendix
'G' to the Rules, it has been strenuously
urged, the stipulation contained in the
Rules is mandatory. The petitioners had to
be granted interview for not less than 25
minutes. That procedure was not followed.
In fact, it was impossible to be followed
since 61 candidates (in all) were scheduled
for interview, over two days, by two
Boards ('A' & 'B') only. On the first day
of the interview, one set each of 20
candidates was scheduled to be interviewed
by the two separate Boards and, on the
second day, the remaining candidates were
similarly equally distributed between those
two
Boards.
If
one
interview
was
conducted for a necessary period of 25
minutes, the interview of 20 candidates by
each Board would have taken more than ten
hours. Since, the interview started at about
10:30 AM and they got over at 5:30 PM
with breaks for tea and lunch, that
mandatory stipulation stood violated. In
that regard, it has been emphasized,
petitioner no.1 came to be interviewed on
30.04.2017 whereas petitioner no.2 was
interviewed on 29.4.2017, both by Board
'A'. The petitioners are further aggrieved
that they were not granted proper interview
and were sent away after being interviewed
over eight to ten minutes each.

7. Fourth, it has been submitted, upon
completion of the interview, the result was
declared on 18.08.2017, declaring 43
candidates successful. That result was
however changed unilaterally - both in the
terms of number of candidates declared
successful as also the candidates who were
994 INDIAN LAW REPORTS ALLAHABAD SERIES
declared
successful.
Thus,
later,
on
01.10.2020, a second result was declared
wherein 37 candidates were declared
successful. The entire seniority list was
altered. Thus, it has been submitted, the
marks awarded to individual candidates
were changed in the meanwhile, to
accommodate certain ineligible persons,
including respondent nos. 4 & 5.

8. Fifth, relying on the vast variance
(alleged) in the marks awarded by the two
Boards, it has been asserted that all the
candidates who appeared before Board
'B' came to be qualified whereas very
few candidates who faced Board 'A'
came
to
be
qualified.
In
such
circumstance, it has been strenuously
urged, there is need to moderate the
marks. If 20 marks were awarded to the
petitioners, for that reason, they would
also be qualified for appointment. Here
reliance has been placed on a decision of
the Supreme Court in Pranav Verma
And others Vs. The Registrar General
of the High Court of Punjab and
Haryana at Chandigarh (Writ Petition
(Civil) No. 565 of 2019, 617 of 2019
and
651
of
2019,
decided
on
13.12.2019).

9. Sixth, it has been further submitted,
respondent No. 5 had earlier filed a writ
petition before the High Court. While that
writ petition was kept pending, she
instituted a parallel proceeding by filing
I.A. No. 42562 of 2017 before the Supreme
Court. That she may have never done. The
High Court also did not inform the
Supreme Court about the pendency of that
writ petition. Consequently, she was
illegally accommodated in the final select
list. That itself has been cited to be a
malicious illegality committed by the High
Court.

10. Last, it has been submitted,
another candidate Sri Krishna Kumar,
judicial officer was allowed to participate
in the examination in two categories. First,
as an advocate and second as a judicial
officer. The same was wholly contrary to
the Rules. In fact, by allowing such
participation the Committee completely
flouted the Rules.

11. Relying on the ratio of the
Supreme Court in Dalpat Abasaheb
Solunke and Others Vs. Dr. B.S.
Mahajan and Others (1990) 1 SCC 305,
it has been asserted, in face of the patent
illegalities and irregularities committed
during the selection process, the same is
wholly vitiated.

12. On such submissions, we had
required Sri Ashish Mishra learned counsel
for the High Court (by order passed on
hearing him, on 07.8.2023) to produce the
original result as may establish the marks
awarded to various candidates at the
interview. Upon perusal of the same it
transpires - 61 candidates were called for
interview held on 29-30 April 2017. One
candidate absented. Of the 60 candidates
interviewed, all but the two petitioners
were awarded more than 80 marks. The
marks of the selected candidates awarded
ranged from 80-125. There does not appear
any pattern in the award of marks, as
suggested by the petitioners. It may never
be inferred from a perusal of the marks
awarded at the Interview, either that all the
selected candidates had been awarded 80
marks each or that any one Board had
awarded marks leniently or strictly, as
compared to the other. Of about 30
candidates interviewed by each Board, only
2 candidates came to be rejected, they have
failed to obtain the pass marks (80). Both
are before us.
8 All. Vivek Kumar Sharma & Anr. Vs. High Court of Judicature at Allahabad & Ors.
995

13. Sri Ashish Mishra learned counsel
for the High Court would submit, there is
absolutely no illegality in the selection
procedure adopted by the Committee. As to
the exact vacancies advertised, it has been
made clear, originally 37 vacancies were
advertised under the Unreserved category
and 35 under the Reserved category (as
disclosed by the petitioner). At the same
time, 12 vacancies were carried forward
from the earlier recruitment. Both the
petitioners applied under the Unreserved
category. At the stage of conducting the
Preliminary
Examination,
scrutiny
of
application forms was neither necessary nor
it could be done, under the norms adopted
by the Committee. Thus, all the candidates
who had submitted completed forms, were
allowed to participate at the Preliminary
Examination, provisionally.

14. As to the first submission
advanced by the petitioners alleging
manipulation
upon
interviews
being
postponed, it has been submitted, the same
is
misconceived
arising
from
misconstruction
of
facts.
During
submissions, Sri Ashish Mishra has also
produced the original record of the meeting
of the Committee dated 23.1.2017, which
has also been shown to the petitioners
during hearing, itself. It will be referred to
a little later.

15.

In
the
first
place,
the
postponement of interviews by one week,
per se does not raise any doubt as to the
fairness of the procedure adopted. It is not
the case of the petitioners that they were
thereby prevented from participating at the
Interview. As a result of the Written
Examination, 61 candidates were found
provisionally successful and accordingly
they were invited for the Interview. The
lone candidate who did not appear at the
Interview conducted (on the postponed
dates), has not even complained. Thus, no
prejudice was caused to the petitioners or to
any candidate by such postponement. No
other or new candidate was called for
Interview other than the candidates who
were originally invited for interview
scheduled to be held on 22.04.2017 and
23.04.2017. No candidate was deprived of
that opportunity, either.

16. Submission of the petitioners that
the ineligible candidates had been invited
for the Interview contrary to the Rule 18(1)
of the Rules, has been met on the strength
of the proviso to Rule 18(1-A) read with
Appendix 'G' of the Rules. The Interview
is part of the Main Examination. Under
Rule
18
of
the
Rules,
the
Main
Examination had to be conducted in
accordance
with
Appendix
'G'
that
prescribes six papers. Five papers comprise
the Written Examination with the sixth
paper being described as the Interview.
Thus, in his submission, the Interview was
an inseparable part and parcel of the Main
Examination. Therefore, referring to the
language of the interim order passed by the
Supreme Court and the High Court, in the
cases of the respondent nos. 4 & 5, he
would submit, the respondents and others
who were similarly provisionally permitted
to participate at the Main Examination,
were provisionally permitted to participate
at the Interview.

17. Alternatively, it has been
submitted, in any case, the candidature of
respondent
nos.
4
&
5
remained
provisional,
at
the
Interview.
The
Committee had passed a further resolution
dated
11.04.2017
permitting
certain
candidates including respondent nos. 4 & 5
to
participate
at
the
Interview,
provisionally. That was done in view of the
996 INDIAN LAW REPORTS ALLAHABAD SERIES
directions issued by the Supreme Court and
this Court, on the judicial side. Yet, it
remained an administrative decision, not in
conflict with any judicial order.

18. Further, Sri Mishra would submit,
as per the record of the High Court, both
respondent Nos. 4 & 5, secured the
requisite merit position, to be included in
the provisional select list, declared on
18.8.2017. However, at that stage, owing to
various pending litigation, their names
were not disclosed in the select list. Only
upon the final order being passed by the
Supreme Court on 19.7.2018 in Writ
Petition (Civil) No.594 of 2016, the result
was published on 1.10.2020 wherein their
names were first disclosed, against their
correct/respective merit position.

19. Third, it has been submitted, the
requirement
that
the
Interview
be
conducted over a period of 25 to 30
minutes is only directory in nature.
However, in case of any deviation resulting
in any Interview being completed in lesser
time, no consequence has either been
provided
under
the
Rules
nor
any
consequence may otherwise be inferred as
may allow the requirement of Note-I of
Appendix 'G' of the Rules to be read,
mandatory. He has relied on the decision of
the Supreme Court in the State of Bihar &
Ors. vs Bihar Rajya Bhumi Vikas Bank
Samiti, (2018) 9 SCC 472.

20. It is in the very nature of things -
an Interview Board may determine the
suitability of a candidate, in lesser time.
Being experts, the members of the Board
act in that capacity, to test the suitability of
the candidates before them. Unless any
patent illegality or error is shown to have
existed in the process adopted by the
concerned Board, in granting that Interview
to either of the petitioners, no inference
may be drawn that a candidate could not
have been found suitable, because the
interview of any of the candidate got over
in less than 25-30 minutes. Here, he has
also emphasized, there are no pleadings
made in the writ petition to establish that
the interview of the present petitioners got
over in less than 25-30 minutes or in 8
minutes as has been orally contended by
the petitioners.

21. Next, it has been submitted, in the
original result declared on 18.08.2017,
names
of
12
judicial
officers
were
provisionally
included.
Upon
pronouncement of the decision of the
Supreme Court in Dheeraj Mor vs
Hon'ble High Court of Delhi, (2020)
SCC OnLine SCC 213, it became
necessary to revise that result. Since, the 12
judicial officers (provisionally included in
the
result
dated
18.08.2017),
were
ineligible, their names were excluded.
However, in that process, the entire select
list itself got revised because some of the
selected candidates who were originally
shown selected against reserved category
came to be selected under the General
category. However, that change did not
involve award of new or fresh marks. Thus,
the
apprehension
expressed
by
the
petitioners as to change of marks awarded,
is described as unfounded.

22. Then, it has been submitted,
respondent
no.4
had
preferred
Writ
Petition (Civil) No. 594 of 2016 before the
Supreme Court whereas respondent no.5
had filed I.A. No. 42562 of 2017 therein.
Those were allowed by the Supreme Court.
At that stage, the Supreme Court exercised
its Constitutional powers under Article 142
of the Constitution of India and allowed
those respondents to be appointed. That
8 All. Vivek Kumar Sharma & Anr. Vs. High Court of Judicature at Allahabad & Ors.
997
order was passed on July 22, 2016.
Inasmuch as the original result declared on
18.08.2017, was provisional and the result
was declared on 01.10.2020, that result was
published after the final order of the
Supreme Court. There is no infirmity in the
result, thus declared.

23. As to the participation of Sri
Krishna Kumar, it has been submitted, it is
true, the said candidate participated in the
Written Examination provisionally. At that
stage, it was in doubt if he could participate
as an advocate, being a serving judicial
officer or in the Limited Competitive
Examination (LCE in short). Since the
judgement in the case of Dheeraj Mor
(supra) had not been delivered, he had
been provisionally permitted to participate,
subject to his candidature being cleared. In
any case, his name does not find mention in
the
final
select
list
published
on
01.10.2020.

24. Having heard the learned counsel
for the parties and having perused the
record, insofar as a ground of mala fide has
been raised, resulting in alleged illegality in
postponing the Interview test, to cause
undue benefit to the eventually selected
candidates, we find, it is undisputed to the
parties
that
the
Interview
test
was
postponed by one week from 22-23 April
2017 to 29-30 April 2017. Per se, there
may be no illegality in such postponement.
It may arise for administrative reason/s that
may remain outside the pale of limited
scope of judicial review, that we may
exercise, in such proceedings. In the
absence of any material to establish - even
a single person may have been added or
deleted to the final list of candidates than
those originally called for the Interview
test, it would be wholly unreasonable and
far-fetched an argument to acknowledge
(for any serious consideration), that such
postponement was meant to cause any
undue benefit to any individual.

25. The fact that the respondent may
have taken a stand in the counter affidavit
that such postponement was occasioned by
certain administrative work involving the
Chairman of the Committee, which fact is
disputed on the strength of information
received by the petitioners under the Right
to Information Act, 2005, from the Registry
of the Supreme Court, is not of such quality
or tenor as may require this Court to even
suspect that there was any gross irregularity
or mala fide, occasioning the postponement
of the Interview test. It not being the case
of the petitioners that any individual or
other person came to be called/refused
interview, occasioned by that postponement
of the Interview test scheduled for 22-23
April 2017, that ground of challenge
remains imaginary and sensational, yet
completely unfounded. The issue of the
exactness or even the correctness of the
information furnished to the petitioners
under the Right to Information Act apart, in
absence of any undue benefit shown to
have arisen to any individual, the ground
being pressed by the petitioners remains
purely speculative and at best, academic.

26. No event took place in that
intervening time as may have created or
destroyed any right in favour of any
aspirant. Merely because certain legal
proceedings were pending, amongst others,
at the instance of the 12 judicial officers
and the 2 lawyers, who were provisionally
allowed to participate at the Interview test,
occasioned by the orders passed in those
judicial proceedings instituted by them, no
prejudice was caused to any candidate
otherwise eligible to be called for the
Interview test. It remains an undisputed fact
998 INDIAN LAW REPORTS ALLAHABAD SERIES
between the parties that though those 12
judicial officers were initially declared
successful in the provisional result declared
on 18.8.2017 yet, their names were not
included in the final Select List published
on 01.10.2020. Giving effect to the
decision of the Supreme Court in Dheeraj
Mor Vs. Hon'ble High Court of Delhi
(supra), the provisional Select List was
revised as the candidature of those 12
provisionally selected candidates (judicial
officers) was rendered ineligible. The case
of the two lawyers (respondent nos. 4 & 5)
shall be discussed, a little later.

27. As to the application of Rule 18
(1) of the Rules, it may be useful to
reproduce it here. It reads as below:

"18. Procedure of Selection--(1) The
selection Committee referred to in Rule 16
shall scrutinize the applications received
and shall thereafter hold a Written
Examination as prescribed in Appendix (G)
for judging the suitability of the candidates.
The Committee shall call for interview such
of the applicants who in its opinion have
qualified for interview after scrutiny and
Written Examination,

(1A)[ The Selection Committee may
hold a preliminary examination for judging
the suitability of the candidates to be
admitted in the Written Examination as
referred in sub-rule (1). The preliminary
examination shall consist of one paper
consisting of 100 marks of two hours
duration from the syllabus prescribed for
the Written Examination in Appendix "G"
of the Rules:

Provided that only those candidates
shall be treated to be eligible for the main
Written Examination who secure minimum
45% marks in the preliminary examination
subject to 20 times of the number of
vacancies
category-wise
i.e.
General,
Scheduled Castes, Scheduled Tribes and
Other Backward Classes.

(2) In assessing the merits of a
candidate the Selection Committee shall
have due regard to his professional ability,
character, personality and health.

(3) The Selection Committee shall
make a preliminary selection and submit
the record of all candidates to the Chief
Justice and recommend the names of the
candidates in order of merit who, in its
opinion, are suitable for appointment to the
Service.

(4) The Court shall examine the
recommendations
of
the
Selection
Committee and having regard to the
number of direct recruits to be taken,
prepare a list of elected candidates in order
of merit and forward the same to the
Governor."

28. Also, for ready reference,
Appendix 'G' to the Rules may be extracted
as below:

"APPENDIX 'G'

[See Rule 18]

Syllabus
prescribed
for
the
recruitment of the officers in Uttar
Pradesh Higher Judicial Service.

The Examination for Uttar Pradesh
Higher Judicial Service will include the
following subjects:

Paper No. 1 General Knowledge

This paper will be of 100 marks and 3
hours duration.

There will be a paper of 'General
Knowledge'. The paper
may
include
questions based on topics relating to
History of India and Indian Culture,
8 All. Vivek Kumar Sharma & Anr. Vs. High Court of Judicature at Allahabad & Ors.
999
Geography of India, Indian Polity, current
national issues and topics of social
relevance, India and the World, Indian
Economy,
International
Affairs,
and
Institutions and Development in the field of
Science and Technology. communication
and space.

The nature and standards of questions
in these papers will be such that a well
educated person will be able to answer
them without any specialised

Paper No. 2 Language

This paper will be of 100 marks and 3
hours duration. It shall comprise four
questions as specified below:-

(i) Essay to be written in English - 30
marks

(ii) English Precis writing -30 marks

(iii) Translation of passage from Hindi
to English -20 marks

(iv) Translation of passage from
English to Hindi -20 marks

Paper No. 3: Law-I (Substantive
Law)

This paper will be of 200 marks and 3
hours duration.

The question set will be restricted to
the field covered by -

The Law of Contracts, the Law of
Partnership, the Law concerning easement
and torts, the Law relating to Transfer of
Property including the Principles of Equity
specifically
applicable
thereto,
the
Principle of equity with special reference to
the law of trust and specific relief, Hindu
Law
and
Mohammedan
Law,
and
Constitutional Law.

There shall be questions of 50 marks
in relation to Constitutional Law alone.

Paper No. 4 Law-ll (Procedure and
evidence)

This paper will be of 200 marks and 3
hours duration.

Question set will be restricted to the
field covered by-

The Law of evidence, the Criminal
Procedure Code, and Code of Civil
Procedure, including the principles of
pleading. The question set will relate
mainly to practical matters such as the
framing of charges and issues, the methods
of dealing with the evidence of witnesses,
the writing of judgment of session trials,
appeals, revision and the conduct of cases
generally, but will not be restricted to them.

Paper No. 5 Law III (Penal, Revenue
and Local Laws)

This paper will be of 200 marks and 3
hours duration.

Questions set will be restricted to the
field covered by -

Indian Penal Code, Uttar Pradesh
Revenue Code, 2006, Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972. U.P. Municipalities
Act,
U.P.
Panchaytraj
Act,
U.P.
Consolidation of Holdings Act, U.P. Urban
Planning and Development Act, 1973,
together with Rules, framed under the
aforesaid Acts.

Answer to the questions of Local Laws
will be compulsory. Question pertaining to
penal Laws will be of 50** marks, whereas
that of Revenue and Local Laws will be of
150 marks.**

Clarification -The candidates will
have
a
choice
to
answer
General
Knowledge and Law papers either in Hindi
or in English.
1000 INDIAN LAW REPORTS ALLAHABAD SERIES

Paper No. 6-Interview

The interview will be of 200 marksThe suitability of the candidate for
employment in the U.P. Higher Judicial
Service will be tested with reference to his
merit giving due regard to his ability,
character, personality, and physique.

Notes-

(i) The candidates securing minimum
aggregate 45% marks in the Written
Examination shall be called to appear in
the interview subject to maximum thrice the
number of vacancies category-wise.

The interview shall be in a thorough
and scientific manner and shall take any
thing between 25 and 30 minutes for each
candidates.
(ii) The candidates securing minimum 40%
marks in the interview shall only be eligible
to be included in the select list. The marks
obtained in the interview will be added to
the marks obtained in the written papers
and the candidate's place in the select list
will depend on the aggregate of both."

29. In the first place, Rule 18(1)
conceives
a
Written
Examination
as
prescribed in Appendix 'G', to judge the
suitability
of
the
candidates.
That
examination is required to be held amongst
the eligible candidates, based on the
scrutiny
of
their
application
forms.
Thereafter, the Rule requires such of the
applicants to be called for the Interview
who, in the opinion of the Committee, may
have qualified the Written Examination.

30. Later by Notification dated 8 May
2014, sub-Rule (1-A) was introduced. It
allows the Committee to first hold a
Preliminary Examination, to judge the
suitability of the candidates to be admitted
at the Written Examination, referred to in
sub-Rule (1) of Rule 18 of the Rules. Under
the
proviso
to
sub-Rule
(1-A),
the
eligibility
for
the
"Main
Written
Examination" has been prescribed at 45%
marks at the Preliminary Examination.
Appendix 'G' to the Rules prescribes the
syllabus for recruitment of officers at the
Uttar Pradesh Higher Judicial Services. It
segregates the syllabus into six papers, five
of them being written papers and the sixth
being the Interview test.

31. Thus, by virtue of the structure of
the Rules, the Interview test is included as a
part of the main examination of the Uttar
Pradesh Higher Judicial Services. It is
described as a separate subject, being paper
No. 6, under the prescribed syllabus, under
Appendix G to the Rules. Relevant to the
same, paragraph-3 of the Advertisement on
which the impugned selection has arisen,
dated 10.5.2016, reads as below: ]

"A
Preliminary
Examination
(objective type) will be held on 31stth July,
2016
at
Allahabad
and
only
those
candidates shall be called to appear in the
Main Written Examination who secure 45%
or
more
marks
in
the
Preliminary
Examination, provided candidates not more
than 20 times of number of vacancies
category-wise i.e. separately for General,
Scheduled Castes, Scheduled Tribes and
Other Backward Classes shall be admitted
to the Main Written Examination."

32. Therefore, to our mind, the Rules
and the Advertisement speak of four events
to test the suitability of any candidate for
selection at the Uttar Pradesh Higher
Judicial Services.

(i) first, a Preliminary Examination, is
conducted to determine the suitability of
the candidates to be admitted at the next
stage/Written Examination. There is no
8 All. Vivek Kumar Sharma & Anr. Vs. High Court of Judicature at Allahabad & Ors.
1001
dispute between the parties with respect to
that examination.

(ii) second, is the scrutiny of the
application forms.

(iii) third, is the Written Examination.

(iv) fourth, is the conduct of the
Interview test.

33. At the same time, both - the
proviso to Rule 18(1-A) of the Rules and
the Advertisement use the term - "Main
Written Examination" to prescribe the
eligibility to the Written Examination
(provided under Rule 18(1) of the Rules),
in terms of minimum marks to be obtained
at the Preliminary Examination. Therefore,
upon a co-joint reading of the Rules and the
Advertisement,
the
"Main
Written
Examination" may only refer to Written
Examination covering the five subjects
specified under schedule 'G'.

34.

Further,
that
eligibility
prescription
has
no bearing
on
the
candidates to be called for the Interview
test. It is so because, under Rule 18(1) of
the Rules, the Committee may call for the
Interview test, only such candidates, as
may in its opinion have qualified the
"Written
Examination"
and
whose
application forms may have been found in
order. Thereafter, the final merit list and in
conformity thereto, the Select List was to
be prepared.

35. It is not in dispute that the Select
List is prepared on the strength of the sum
of
marks
obtained
at
the
Written
Examination (but not the Preliminary
Examination) and the Interview test. Thus,
the Interview test is a necessary part of the
Main Examination, as prescribed under the
Rules. Yet, it is not part of the Written
Examination.
Therefore,
the
language
employed by the Supreme Court and this
Court in the interim orders passed by them
is relevant. The interim order dated
22.7.2016 passed by the Supreme Court, in
the case of respondent No. 4 reads as
under:

"Heard.

Issue notice.

Dasti, in addition, is also permitted.

Pending further orders from this
Court, the petitioners shall be permitted to
appear in the preliminary examination for
Uttar Pradesh Higher Judicial Service
scheduled to be held on 31st July, 2016,
subject to the following conditions:

(1) They make an application before
the Registrar General of the High Court of
Judicature at Allahabad within two days
from today.

(2) Upon scrutiny of the applications,
the Registrar General finds the petitioners
to be within the upper age limit of 45 years
as on 1 January, 2016 for general category
candidates and within the upper age limit
of 48 years, as prescribed for the reserved
category candidates in terms of Rule 12 of
the relevant rules. (3) In case they qualify
in the preliminary examination they shall
be permitted to appear in the Uttar
Pradesh
Higher
Judicial
Service
Examination, 2016 (Main).

(4)
The
result
of
the
Main
Examination (subject to their qualifying in
the preliminary examination) shall be kept
in a sealed cover.

Post along with W. P. (C) No. 414 of
2016 and connected matters."

36. Similarly, the order of the
coordinate bench of this Court (sitting at
Lucknow) passed in the case of respondent
No. 5, dated 18.7.2016 reads as below:

"Heard learned counsel for the
applicant-petitioner and Sri Upendra Nath
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
Misra, learned counsel appearing for the
High Court.

The petitioner through this writ
petition has prayed that she may be
permitted to appear in the preliminary
examination as well as in the final
examination, inter alia, on the grounds
stated in the writ petition.

Learned counsel for the petitioner
submits that the matter is engaging the
attention of the apex Court in Writ Petition
(s) (Civil) No(s).414 of 2016, Dr. Anil
Kumar Singh and others vs. The Hon'ble
High Court of Allahabad and another,
along with SLP(C) No.15750 of 2016 and
other connected Special Leave Petitions
and the apex Court has passed the
following order :-

"W.P. (C) No.414 of 2016, W.P. (C)
No.405 of 2016, W.P. (C) No.423 of 2016,
SLP (C) No.15764 of 2016:
 Pending further orders from this Court,
the petitioners shall be permitted to appear
in the preliminary examination for Uttar
Pradesh Higher Judicial Service scheduled
to be held on 31st July, 2016. In case they
qualify in the same they shall also be
permitted to appear in the Uttar Pradesh
Higher Judicial Service Examination, 2016
(Main). The result of the Main Examination
insofar as the petitioners are concerned
shall however be withheld and kept in a
sealed cover.

SLP (C) No.15750 of 2016 and SLP
(C) No.15644 of 2016:

The petitioners shall also be allowed
to appear in the Uttar Pradesh Higher
Judicial
Service
Examination,
2016
scheduled to be held on 31st July, 2016,
subject to the following conditions:

(1) They make an application before
the Registrar General of the High Court of
Judi8cature at Allahabad within two days
from today.

(2) Upon scrutiny of the applications,
the Registrar General finds the petitioners
to be within the upper age limit of 45 years
as on 1st January, 2016 for general
category candidates and within the upper
age limit of 48 years, as prescribed for the
reserved category candidates in terms of
Rule 12 of the relevant rules.

(3)
The
result
of
the
Main
Examination (subject to their qualifying in
the preliminary examination shall be kept
in a sealed cover."

Learned counsel for the petitioner
submits that case of the petitioner is
identically situated, therefore, she is also
entitled for appearing in the preliminary
examination as well as in the Main
Examination subject to the condition that
the result shall be kept in a sealed cover.

We accordingly permit the petitioner
to appear in the preliminary examination
as well as in the Main Examination as
directed by the apex Court subject to the
condition that the result of the petitioner
shall be kept in a sealed cover and shall be
governed by the final verdict of the apex
Court in the aforesaid cases.

Subject
to
above
observation,
application is disposed of".

37. The interim orders passed by the
Supreme Court and the coordinate bench of
this Court, must be read in the backdrop of
the law they were dealing with, in the
context of the fact situation that arose
before them. That appraisal of the facts and
the law gave rise to the orders, providing
for
interim
measures.
Here,
despite
qualifying at the Preliminary Examination,
respondent No. 4 and 5, were faced with
disqualification to participate further in the
main
examination
i.e.,
the
Written
Examination
and
consequently
the
Interview test, occasioned by the fact that
they were over aged. In dealing with that
8 All. Vivek Kumar Sharma & Anr. Vs. High Court of Judicature at Allahabad & Ors.
1003
contingency and in the light of the
submissions that may have been advanced,
the Supreme Court and this Court provided
that their result of the Main Examination be
kept in sealed cover however, subject to
those
respondents
qualifying
the
Preliminary Examination.

38. Therefore, to our mind, the
respondent nos. 4 and 5 were permitted to
participate further - both at the third and
fourth events of the selection process, noted
above, subject to their qualifying at the first
stage (as explicitly provided under the
interim orders).