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2004 DIGILAW 517 (KAR)

K. SRINIVASA v. KARNATAKA ELECTRICITY BOARD

2004-08-19

R.GURURAJAN

body2004
( 1 ) THIS petition is filed by one Srinivasa seeking a writ of certiorari to quash Annexure-F an endorsement dated 6. 6. 198 in the matter of prescribing minimum marks for physical endurance test. Petitioner further prays to quash appointment order dated 6. 3. 1998 at Annexure-J issued to the fourth respondent and the order dated 8. 12. 1998 at Annexure-H issued to the third respondent. Petitioner also wants a direction to consider his case in the matter. ( 2 ) PETITIONER belongs to Meda community which is classified as Scheduled Tribe in terms of Annexure-A. He passed 7thstandard examination obtaining 428 marks out of 600 marks. He worked in the Electricity Board for four months. First respondent wanted to fill up Probationary Mazdoor in terms Annexure-D. Selection is governed by the Boards Regulations. Procedure for appointment is prescribed in terms of Regulation 8 of the Regulations. Petitioner states that the respondents are required to provide weight age marks in terms of Annexure-D. Physical Endurance test is prescribed carrying 10 marks. Marks obtained in the above test have to be added to 75 per cent of the academic marks obtained by the candidate in 7thstandard which is the qualifying examination in terms of the notification. He was called for interview. However, he was not selected in the matter. Petitioner states that though he did well in the endurance test he was awarded 4 marks out of 10, whereas, respondents 3 and 4 have been awarded 10 marks each in the said test. Since the petitioner did not obtain minimum of 5 marks in the endurance test he was not considered. Petitioner with these facts is before me. ( 3 ) RESPONDENTS have entered appearance. Respondent Board had filed statement of objections. Respondents No. 4 states that he is qualified and his appointment cannot be questioned by the petitioner. He has narrated the material facts. ( 4 ) THE Board has also filed a statement and in the statement it is stated that 7thstandard is the prescribed minimum qualification for the Probationary Mazdoor for the purpose of eligibility. Physical Endurance Test is absolutely important for such appointment, and unless the candidates are well built, they may not be able to do heavy jobs attached to the test. He refers to a Division Bench order of this Court with regard to weight age in the matter of experience. Physical Endurance Test is absolutely important for such appointment, and unless the candidates are well built, they may not be able to do heavy jobs attached to the test. He refers to a Division Bench order of this Court with regard to weight age in the matter of experience. They say that the petitioner did not get the minimum of 5 marks and that there fore his case was not considered. They justify their action. They have subsequently filed additional affidavit in this Court. ( 5 ) SRI Ramachandra Reddy, learned counsel appearing for the petitioner took me through the material facts to contend that the facts of the case would require my interference in the case on hand. Learned Counsel says that the selection process had commenced and in terms of the said procedure no marks were for the endurance test. A minimum 5 mark was later fixed, and, according to the learned counsel, that cannot be done after commencement of selection process. Respondents have no authority to alter the eligibility criteria according to the learned counsel. There is no transparency in the case on hand. He relies of various judgments in support of his submissions. Per contra, learned counsel for the Board would justify by contending that 5 marks yardstick was equally followed in all cases. He also refers to two judgments of the Supreme Court. ( 6 ) AFTER hearing the learned counsel for the parties. I have carefully perused the material on record. From the material on record, it is seen that in terms of Regulation 8 a Committee has to be constituted to assess the suitability of a candidate. It also provides for physical fitness so as to able to attend to hard work in the matter. A Committee has been factually constituted and the Committee has chosen to award only 4 marks to the petitioner in terms of Annexure-G. Petitioner states that fixation of minimum 5 marks and grant of four marks requires my interference. As I see from Annexure-D that Endurance Test was prescribed in the matter. The authorities also say therein that 10 marks are indicated for the purpose of endurance test. The only missing factor is about the minimum of 5 marks for the purpose of endurance text. Let me see as to whether the Board has committed any illegality in prescribing minimum of 5 marks in the circumstances. The authorities also say therein that 10 marks are indicated for the purpose of endurance test. The only missing factor is about the minimum of 5 marks for the purpose of endurance text. Let me see as to whether the Board has committed any illegality in prescribing minimum of 5 marks in the circumstances. ( 7 ) MATERIAL facts would show that the Board has made it clear about the prescription of endurance test and the marks in this regard. Courts have considered the eligibility criteria under various circumstances. The Supreme Court in ( AIR 1972 SC 1546 ) STATE OF HARYANA v. SHAMSHER JANG SHUKLA consider prescribing conditions of services. In that case the Supreme Court was considering the facts of administrative instructions relating to the rules framed under Article 309 of the Constitution. The Supreme Court ruled that the administrative instructions would be invalid if approval from the Central Government is not accorded in the circumstances. Again in B. N. NAGFARAJAN AND OTHERS V. STATE OF KARNATAKA AND OTHERS, ( AIR 1979 SC 1676 ), the Supreme Court has ruled that the act done in exercise of executive power of Government cannot over-ride Rules under Article 309 of the Constitution. In M. G. PANDKE AND OTHERS v. MUNICIPAL COUNCIL, HINGANGHAT, DISTRICT WARDHA AND OTHERS, ( AIR 1993 SC 142 ), the apex court had ruled that the Municipal Council to our show that the selection process is to be completed in accordance with law as it stood at its commencement. Law is thus fairly settled that no executive instructions can over ride a statutory provision. Facts of the case would show that the Board has not prescribed endurance test for the first time in the case on hand. Endurance Test is a pre-requisite in terms of the notification. Only missing point, as I mentioned earlier, is fixation of minimum marks in the case on hand. Fixing of 5 marks after the notification cannot be said to violative or over-ride the notification as argued by the learned counsel for the petitioner. It is only regulatory in character and the said marks are fixed to assess the physical fitness of an employee. It is also to be noticed that nobody is appointed contrary to minimum marks in the case on hand. The yardstick is equally applied to all the candidates. It is only regulatory in character and the said marks are fixed to assess the physical fitness of an employee. It is also to be noticed that nobody is appointed contrary to minimum marks in the case on hand. The yardstick is equally applied to all the candidates. In an identical circumstances, the Supreme Court in (1996 (2) LLJ 183) PREM SINGH AND OTHERS v. HARYANA STATE ELECTRICITY BOARD AND OTHERS, has considered grant of four marks, and, after referring to various judgments the Supreme Court rules that weight age had been given by the Selection Committee for higher qualifications. The Supreme Court said that the High Court was therefore not right in holding that the benefit of higher qualifications was denied to those candidates who possessed them. The Supreme Court was also of the opinion that it was not necessary to indicate in advance to the candidates the manner in which benefit of higher qualifications was to be given to them; and that once the Selection Committee had fixed the norm in this behalf in advance and that norm was applied uniformly to all the candidates, it will have to be held that it acted in a fair manner and did not contravene the provisions of Articles 14 and 16 of the Constitution. This case of the Supreme Court is the nearest to the facts of this case in the circumstances. Norm was already fixed in terms of Annexure D and the same been applied to everyone. What was done, that too before completion of selection process, is providing for minimum of five marks. In these circumstances, I am unable to accept the arguments of the learned counsel for the petitioner that fixation of minimum of five marks is violative or in excess of the minimal requirement in terms of the notification. ( 8 ) IN so far as selection process is concerned, I find that a Selection Committee was constituted and that Committee has provided necessary marks to all candidates. No mala fides are attributed or no arbitrariness is shown to the Court in respect of the selection process. In NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES v. DR. ( 8 ) IN so far as selection process is concerned, I find that a Selection Committee was constituted and that Committee has provided necessary marks to all candidates. No mala fides are attributed or no arbitrariness is shown to the Court in respect of the selection process. In NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES v. DR. K. KAL YANA RAMAN AND OTHERS, (1992 II LLJ 616), the Supreme Court has ruled that the procedural fairness is the main requirement in the administrative action, and that the fairness or fair procedure in the administrative action ought to be observed. Material facts would show that there is no unfair procedure in terms of the pleadings and evidence available on record. In the circumstances, I do not find any justifiable ground to interfere in the case on hand. Petition stands rejected. No costs. ( 9 ) BEFORE parting, I would observe that the facts would show that the petitioner did work for some time in the Board and he belongs to a weaker section of the society and that he has secured fairly good marks in 7thstandard. Therefore, this Court observes that in the event of any future vacancy the Board may consider the case of petitioner notwithstanding this order.