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Allahabad High Court · body

1986 DIGILAW 187 (ALL)

Tileshwar Ram v. State of U. P

1986-02-17

D.S.BAJPAI, K.C.AGGRAWAL

body1986
JUDGMENT K. C. Agrawal, J. - Tileshwar Ram and Shitla Prasad Singh were the candidates at the examination conducted by the U.P. Public Service Commission for the Judicial Service of the State of U.P. in the year 1983. The total number of vacancies notified by the Commission for the examination were 76. Out of these 76 posts, 11 were reserved for backward classes. The advertisement required the candidates of the backward classes to append with their application Forms the certificate of either of the authorities which are mentioned in Paragraph 11. The aforesaid para is being reproduced below: HINDI MATTER 2. The petitioners claiming themselves to be the members of backward classes applied for the posts notified for them. Similarly, Respondents Nos. 3 to 6 also filled in the application forms for being appointed as against the reserved quota of backward classes. Respondent 3 Lukmanul Haq and Respondent 4 Shamshad Ahmad claimed themselves to be the members of Darzi and Gaddi castes respectively, which had been declared by the State of U.P. as backward classes under Article 16(4) of the Constitution. Article 16(4) of the Constitution confers discretionary power on the State to make the reservation of appointments in favour of backward classes of citizens which, in the opinion of the State, is not adequately represented in the service under the State. Article 17(4), however, does not confer any constitutional right upon the members of the backward classes nor any corresponding duty upon the State to make reservations for them. 3. Respondent 3 Lukmanul Haq filled in the application form, as stated earlier, claimed himself to be a Darzi, which, admittedly, was backward class. Along with the application form, Respondent 3 had filed a certificate of the Tehsildar , Najibabad, dated 14.1.1981 certifying that he was a Darzi by caste . Similarly, Respondent No. 4 Shamshad Ahmad had also filled in the form along with a certificate certifying that he was Gaddi by caste. 4. The petitioner have claimed in this petition that neither was Respondent Lukkmanul Haq nor was Respondent 4 Shamshad Ahmad a member of the backward class and, as such, they misrepresented to the Public Service Commission and by procuring admission on the same. They alleged that Respondent 3 was Mule (Sheikh) and Respondent 4 was Gandhi by caste, and not Gaddi, which has not been declared as a backward class. 5. They alleged that Respondent 3 was Mule (Sheikh) and Respondent 4 was Gandhi by caste, and not Gaddi, which has not been declared as a backward class. 5. The petitioners also made allegations as against Respondents 5 and 6 that they were not the members of the backward classes. But, as this petition was pressed only as against Respondents 3 and 4, we are not required to deal with the facts relating to Respondents 5 and 6. It would be sufficient to point out that on the principles which we would decide in this case for rejecting the contention of the petitioners, the contention raised as against respondents 5 and 6 would also be liable to be rejected. 6. From the counter-affidavit flied on behalf of the Public Service Commission it appears that as against Respondent 3 a complaint was received in the Commission's office on 15th April, 1985, that the said respondent did not belong to the back - ward class. On receiving the complaint, the Commission took a decision on 7.6.1985 to enquire into the genuineness of the caste certificate of Respondent 3 through the District Magistrate, Bijnor. The District Magistrate, Bijnor, by his letter dated July 15, 1985, informed the Commission that Lukmanul Haq, Respondent 3, did not actually belong to backward class. On receipt of the report against 'Respondent No. 3 from the District Magistrate, Bijnor, a show cause notice was issued to the said respondent on 27.9.1985 as to why his result of Munsif's examination of the year 1983 be not cancelled. In response, Respondent No. 3 gave his explanation to the Commission on Oct. 8, 1985, and Oct. 10, 1985, claiming that he was a Darzi by caste and had filled in the form correctly. Along with the explanation, he filed some other evidence to prove that he was a Darzi. The Commission, after considering the certificate dated 14.1.1981 given by the District Magistrate that the petitioner (not) was a Darzi and- the subsequent confidential enquiry and self-contradictory reports of the Pradhan, came to the conclusion that the said respondent 3 was a Darzi, which was a backward class declared by the State of U.P. and, as such, was entitled to appear at the examination in that capacity. The Commission sent a letter to the Government on Nov. 4, 1985, relating to the, candidature of Respondent 3 to that effect. 7. The Commission sent a letter to the Government on Nov. 4, 1985, relating to the, candidature of Respondent 3 to that effect. 7. So far as Respondent 4 Shamshad Ahmad is concerned, the controversy raised against him by means of a complaint received in the Commission's office on April 15, 1985, was that he was a Gandhi, and not a Gaddi. This complaint was also sent to the District Magistrate, Azamgarh, for confidential enquiry. On the report being received against Respondent 4, he was issued a show cause notice by the commission as to why his result of Munsif's examination of the year 1983 was not liable to be concelled. Respondent 4 brought material before the Commission w which satisfied it that he was a Gaddi by caste, and not Gandhi, as had been alleged in the complaint. In this view of the matter, the Commission sent its recommendation to the State Government on 4.11.1985 for the appointment of Respondent No. 4. 8. We have already referred to Paragraph 11, which required the certificate of any of the authorities mentioned therein to be produced along with the application form in proof of caste. In both the cases, the certificates had been produced. The per- mission, however, to appear at the examination on the basis of the statements made in the application forms, is tentative in character inasmuch as the Commission reserves the right to cancel the examination if it is found subsequently that ad - mission had been obtained by a candidate on a misrepresentation or by committing forgery or in suspicious circumstances. This clause is being quoted below : HINDI MATTER 9. The question that was argued by the petitioner's counsel was that the Commission did not have the power to decide the controversy about the castes to which Respondents 3 and 4 be - longed and in doing so since it performed the judicial act which therefore, the letters of the Commission written to the State Government that both of these respondents were members of the backward classes did not carry any weight and their candidature was liable to be cancelled. Counsel urged that the power to decide the caste to which a candidate belongs in the event of his claiming the benefit of reservation, is conferred firstly to the District Magistrate and ultimately, to the State Government. Counsel urged that the power to decide the caste to which a candidate belongs in the event of his claiming the benefit of reservation, is conferred firstly to the District Magistrate and ultimately, to the State Government. The State Government was the final authority to decide this controversy as it was the appointing authority. In justification of the submission that the power to decide is of the District Magistrate, the counsel argued that he is the agent of the State Government and if in exercise of that power the District Magistrate takes a view that would be final and binding on the com- mission. 10. The submission made by the petitioner's counsel requires us to quote the sub-Article (1) of Article 320 of the Constitution. It reads : "It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the Services of the Union and the services of the State respectively". 11. In 1974, the State Legislature passed an Act known as U.P. Public Service Commission (Procedure and Conduct of Business) Act, 1974. In exercise of the powers conferred by Section 2(1) of the aforesaid Act, the U.P. Public Service Commission framed Conduct of Business Rules, 1974, and, thereafter, another set of Rules in 1976. Clause 30 of the 1976 Rules confers power on the Public Service Commission to scrutinise the applications received in response to advertisements. 12. Clause 75 provides for residuary matters. Under this clause, the Commission is empowered to deal with any matter in such manner as it deems fit in respect of which specific provisions have not been made in the Rules. 13. The power conferred by Article 320(1) of the Constitution en - titles the Commission to conduct examinations. The expression "conduct" is of wide amplitude. Under it, the Commission is entitled to regulate and give directions for effectuating its duty of holding the examination requited for recruitment or appointment in the State services. The power to regulate would include expressly, the power to adopt any method in accordance with which it is satisfied that an application form filled in by a candidate bears correct facts, and that the candidate has not made any misrepresentation or is guilty of any fraud in obtaining the admission. The power to regulate would include expressly, the power to adopt any method in accordance with which it is satisfied that an application form filled in by a candidate bears correct facts, and that the candidate has not made any misrepresentation or is guilty of any fraud in obtaining the admission. The word "scrutiny" used in the Rules of 1976 also has to be interpreted in the sense of conferring all such powers on the Public Service Commission as is required for the purpose of satisfying itself about the correctness of the allegations. It is not that whenever an anonymous or other complaint is received as against a candidate, the Public Service Commission has to treat such a complaint as final and to debar a candidate on that basis. It will be its duty, if it is satisfied prima facie on the complaint, that an enquiry is required to be made, to adopt such method as is advisable in the circumstances of that case and is decided upon by it in respect of that matter. It can have resort to making of confidential enquiry from the District Magistrate or through other sources which it may consider fit and proper. The power of the Public Service Commission cannot be fettered by asserting that it does not since have jurisdiction to act as a Court or as a Tribunal to decide upon a controversy relating to the candidate belonging to a particular caste, there - fore, it could not hold any enquiry. This argument of the petitioners has no substance. The Commission has the responsibility of conducting an examination and for successfully conducting it or managing the same, it has to be conceded that the com- mission has all the powers to regulate would entitle the com- mission to make such necessary enquiries as may be needed. 14. In this connection, it may be pointed out that the Commission was justified, on the facts and the circumstances of the present case, to issue show cause notices to respondents 3 and 4 before taking a final decision inasmuch as it was expected of the Com- mission to act fairly. For acting fairly, it was incumbent to issue notices to respondents 3 and 4 so that they had an opportunity of putting forward their cases in respect of which enquiries were being made by the Commission. For acting fairly, it was incumbent to issue notices to respondents 3 and 4 so that they had an opportunity of putting forward their cases in respect of which enquiries were being made by the Commission. While deciding the 'question whether respondents 3 and 4 were of backward classes or not the Commission was not deciding a question between the two opposite parties. There was no lis and nothing to decide. The Commission was acting in exercise of its administrative functions. A lis implies the conception of an issue joined between two parties. There were no two parties in this case. The parties only were Respondents 3 and 4 and it were they who had to satisfy the Commission that the application forms filled in by them claiming themselves to be the members of the backward classes did not contain incorrect facts, and that they had not obtained admission cards by foul play. 15. Counsel for the petitioners argued on the basis of the langue - age of Article 320(1) that the Public Service Commission is em- powered or is under a duty only to conduct examinations and holding of enquiries into the misconduct of examinees after the examinations are over, is an extra constitutional activity which is forbidden by law. It was argued that the powers vested in the Commission could be supplemented only by law made by the appropriate authority and without the vesting of such power in the Commission, it was not within its jurisdiction to do anything beyond Article 320 of the Constitution. 16. The submission has no merit. Article 320 of the Constitution does only speak of the conduct of examination, but that is not conclusive of the controversy. As a body created under the Constitution for the specific purpose of holding examinations, the requirement to hold examination necessarily carries with it all the powers which would be essential to successfully performing it. When the Commission had the right to conduct examination no one else but the Commission itself had the power to scrutinise the applications, to look into the malpractices against the candidates who appeared at any examination announced by it, and to pass an order in that respect. 17. When the Commission had the right to conduct examination no one else but the Commission itself had the power to scrutinise the applications, to look into the malpractices against the candidates who appeared at any examination announced by it, and to pass an order in that respect. 17. In Maxwell's Interpretation of Statutes, Eleventh Edition, page 349, dealing with implied powers, it has been laid down that a Corporation created by an Act of Parliament would derive such powers by necessary implication, as may be necessary to perform its duty successfully. The relevant paragraph is quoted below : "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data east, ea quoque concessa ese videntur, sine quibus jurisdictio ex - licari non potuit. Thus, an Act which empowered justices to require persons to take an oath as special constables, and gave them jurisdiction to inquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those purposes. Otherwise, the jurisdiction could not be of fec- tually exercised." 18. In Subba Rao v. Andhra Pradesh Public Service Commission, AIR 1961 Andhra Pradesh 378, a Division Bench of the Andhra Pradesh High Court was also faced with a similar controversy relating to the power of the Public Service Commission. It rejected the contention of the petitioner of that case that the power of the Commission was confined to the holding of examinations. It was held in this case:- "Further, the very concept of publication of result involves the investigation into misconduct concerning examinations. Publication of results involves the thought that it should be a correct publication and excludes the possibility of results obtained by fraud being given effect to". 19. In Badri Prasad Hari Das v. Industrial Tribunal, (1984) 48 Fac LR 315, relying on a decision of the Supreme Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, AIR 1981 SC 606 , the Full Bench held that although there was no specific pro - vision for setting aside the ex parte award and restoring the reference to its original number, but such a power despite the absence of an express provision could be held to be implied in the Scheme of the Act. 20. Industrial Tribunal, AIR 1981 SC 606 , the Full Bench held that although there was no specific pro - vision for setting aside the ex parte award and restoring the reference to its original number, but such a power despite the absence of an express provision could be held to be implied in the Scheme of the Act. 20. From these decisions and from Article 320(1) of the Constitution itself we find that the Public Service Commission had the power to deal with and decide the question whether Respondents Nos. 3 and 4 were of backward classes. Deciding this controversy will not amount to any judicial function by the Public Service Commission, which is discharged by a court of law. The power of the Public Service Commission to enter into this controversy is only for a limited purpose of dealing with the validity of the application form submitted by a candidate. The Public Service Commission, if finds that a form submitted does not conform with the requirements of the Rules or Regulations,, it can reject the same at the threshold. Such a rejection by the Public Service Commission would be final and would not be open to challenge before the State Government or any other authority inasmuch as the State Government does not set as an appellate authority over that of the Public Service Commission. The Public Service Commission has full and complete power to deal with these controversies. 21. Counsel for the petitioners urged that as a certificate issued by the District Magistrate is by an agent of the State Government, refusal to issue such a certificate would not be open to question before the Public Service Commission. We do not find any merit in this submission. The Tehsildars in the instant cases had issued the certificates. When the question whether Respondents Nos. 3 and 4 were of backward classes was attempted to be com- ouflaged by means of the representations, it became necessary for the Public Service Commission to consider whether they were entitled to appear as candidates of backward classes or not. The certificate of a Tehsildar or District Magistrate is filed only in proof of the assertion of the candidate that he belongs to a back ward class. The certificate of a Tehsildar or District Magistrate is filed only in proof of the assertion of the candidate that he belongs to a back ward class. If the certificates- is found to be in order, the Public Service Commission can assume it to be correct and can permit the candidate to appear as a backward class candidate. On being challenged, if it so desires, the Commission may enquire into it. 22. Sri Murli Dhar, counsel appearing for the petitioners, urged that as requirement of 'consultation with the Commission does not extend to making of the advice of the Commission on those matters binding on the State Government, as held in State of U.P. v. Manbodhan Lal, AIR 1957 SC 912 , hence the Public Service Commission did not have any power to find that Respondents Nos. 3 and 4 were the members of the backward classes. He urged that under Article 16(4) of the Constitution the State Government is empowered to make reservation, hence it alone can identify the persons who are entitled to get the benefit of reservation. 23. We do not agree with this submission. The power of reservation is no doubt conferrers by Article 16(4) of the Constitution on the State Government, but that does not mean that the State Government could decide whether a particular person is of a back ward class or not. To provide reservation under Article 16(4) of the constitution is one thing and to identify the persons entitled to the benefit of that reservation- is another. The Public Service Commission being the authority entitled to conduct examinations has the power to find whether a person applying for appointment against reserved quota is entitled to get it or not. 24. The policy underlying the establishment of the Public Service Commission is, amongst others, to ensure selection of persons who are entitled to the same on merits and also of those who could be held to be entitled to the benefit of reservation under Article 16(4). Where the State Government is required to consult the Public Service Commission in the matter of selection of candidates, the selection has to be made by the Commission. It is the Commission which will find out the persons who may be entitled to be given the appointments. The Government has to fill the posts by appointing those who are selected by the Public Service Commission. It is the Commission which will find out the persons who may be entitled to be given the appointments. The Government has to fill the posts by appointing those who are selected by the Public Service Commission. Over the decision of the Public Service Commission that a particular candidate is of backward class, the State Government does not exercise the power of an appellate authority. 25. In the instant case, the Public Service Commission made investigation by adopting or following the procedure which was in consonance with the requirement of Article 320(l) of the Constitution. As Respondents 3 and 4 were directly involved with the controversy, the Public Service Commission was right in issuing notices of show cause to them. In every matter the Public Service Commission may not issue a show cause notice. In the case like the present, it was necessary to do so and after looking Into the entire papers the Public Service Commission came to the conclusion that Respondents 3 and 4 were the members of backward classes. The decision of the Public Service Commission was based on considerations which could not be a subject matter of the present writ. In fact, the counsel for the petitioners did not challenge the finding of the Commission on merit that respondents 3 and 4 were of backward classes. In this regard, we also to note that the Public Service Com- mission exercised the discretion in favour of Respondents 3 and 4. It will not be proper for us to interfere with that discretion. While laying down that respondents 3 and 4 were entitled to be heard by the Public Service Commission, we have not examined all the situations where opportunity is required to be given. There may be several occasions or situations where the Public Service Commission may be entitled to decide the controversy before it without hearing the persons concerned. It will depend on the facts of each case. For instance, if the form of a candidate is effective and does not conform with the standards provided, it is not necessary for the Public Service Commission to give an opportunity to such a candidate while rejecting his application form. 26. It will depend on the facts of each case. For instance, if the form of a candidate is effective and does not conform with the standards provided, it is not necessary for the Public Service Commission to give an opportunity to such a candidate while rejecting his application form. 26. Reliance was placed on Nyayik Sewa Rules by the 'petitioners' counsel for the argument that the power to decide whether Respondents 3 and 4 were members of the backward classes rested with the High Court, and not with the Public Service Commission. We do not accept this submission. The High Court does not have any power to decided this controversy on the administrative side. It does not and cannot sit in appeal over the orders of the Public Service Commission by interfering on the administrative side. 27. It was brought to our notice that Respondents Nos. 3 and 4 have been absorbed as against the general quota and, therefore, two vacancies of the backward class quota fell vacant and that one of the candidates, who was at serial No. 2 of the declared list, the first having declined to accept the appointment, should have been taken by the Public Service Commission. Since the writ petition was not founded on this ground, and there are no materials before us to come to any finding on this controversy, we decline to go into this controversy. 28. For what we have said above, we do not find any merit in this petition. 29. For the reasons given above, the writ petition fails and is dismissed. We, however, make no order as to costs. The stay order dated 2.1.1986 is discharged.