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Madhya Pradesh High Court · body

2005 DIGILAW 511 (MP)

Sameena Khan v. State of M. P.

2005-04-12

DIPAK MISRA

body2005
Judgment ( 1. ) THE centroidal issue that has emerged for adjudication in this writ petition preferred under Article 226 of the Constitution of India is whether a candidate at the time of interview conducted by the M. P. Public Service Commission [in short the Commission] would offer preference in respect of certain posts and thereafter being not selected for those posts can put forth or advance a claim that she should have been considered for other posts despite the factum the Rule, the advertisement and the form unequivocally postulate that if a candidate has not given any preference in respect of the posts, he or she would not be considered for the said post ? ( 2. ) THE facts that are requisite to be adumbrated are that an advertisement was published by M. P. Public Service Commission (in short the Commission) in Rozgar and Nirman dated 9-4-1998 bearing advertisement No. 0298 for filling of 423 posts of various categories of posts in the State Government. As put forth in the petition there were 16 categories of posts out of which 9 were Class II and 7 were Class III. The petitioner submitted an application pursuant to the advertisement in due time and her application was accepted after proper scrutiny. The petitioner qualified in the examination and was called for interview. She appeared in the interview before the Commission. It is urged in the petition that the petitioner had education in English medium and knows little Hindi and, therefore, filled up the form at the time of the interview in a different manner as she could not understand the contents of the form properly. None in the Commission pointed out about the proforma and no help was offered to her to fill up the same as a result of which she could not get selected in he interview despite having obtained higher marks than many others. It is contended that she secured 129th position for the 423 posts advertised. 78 posts were in Class II and the rest were in Class III. It is set forth that the petitioner could have been selected in respect of 78 posts in Class III cadre but it could not be so as the posts were excluded while filling of the form by the petitioner at the time of interview. 78 posts were in Class II and the rest were in Class III. It is set forth that the petitioner could have been selected in respect of 78 posts in Class III cadre but it could not be so as the posts were excluded while filling of the form by the petitioner at the time of interview. It is the stand in the petition that in view of her position in the merit list she could have been selected but unfortunately her form had been rejected which led her to submit a representation to the Chairman, Public Service Commission in which she narrated all facts and pointed out how the mistake had crept in. In this backdrop a prayer has been made for commanding the respondents to include the name of the petitioner at Sr. No. 129 of the merit list and offer her the post available at that number with all consequential benefits. ( 3. ) A counter affidavit has been filed by the respondent No. 2, M. P. Public Service Commission, contending, inter alia that the Commission conducted the combined competitive examination for State Civil Services for selection of eligible candidates for various posts under the employment of State of Madhya Pradesh. The State Government has framed a set of Rules, namely, the State Civil Services Examination Rules (in short the Rules) for holding the State Civil Services Examination. As per the rules the combined competitive examination comprises of three categories, namely, Preliminary Examination, Main Examination and Personal Interview. There is no dispute in the return that the petitioner was selected in the main examination and, therefore, detail given in the return need not be adverted to. A reference has been made to Annexure R-2-1 whereby a call letter for interview was issued to the petitioner. It is emphasised that the said interview call letter would reveal that answering respondents in advance had given a preference sheet alongwith the detailed lists of posts covered under the advertisement so that the candidates could submit the preference sheet alongwith verification before the personal interview indicating the order of preference in which they want to be considered for selection on various posts covered by the advertisement. It has been enumerated that in the instant case the petitioner submitted her preferences in the following order :- Order of Preference Post/service 1. State of Civil Services (Dy. Collector) 2. State Police Service (Dy. It has been enumerated that in the instant case the petitioner submitted her preferences in the following order :- Order of Preference Post/service 1. State of Civil Services (Dy. Collector) 2. State Police Service (Dy. S. P.) 3. District Excise Officer 4. State Accounts Service (Not Advertised) 5. Sales Tax Officer 6. District Registrar (Not Advertised) 7. Labour Officer 8. Assistant Registrar Co-op Societies (Not Advertised) 9. District Organiser Tribal Welfare (Not Advertised) 10. Area Organiser (Not Advertised) 11. Employment Officer 12. Block Development Officer (Not Advertised) 13. Assist. Director Food/food Officer 14. Project Officer (Not Advertised) 15. Asstt. Director Local Fund Audit (Not Advertised) 16. Addl. Asstt. Development Commissioner The said document has been brought on record as Annexure R-2/2. ( 4. ) IT is put forth in the counter affidavit that bearing the posts which are not covered by the advertisement, i. e. , Annexure R-2-3 the petitioner was considered for the rest of the posts as per preferences given by her. It is submitted that the petitioner was not excluded from consideration for any post as per preference indicated by her in the prescribed format submitted by her before personal interview. ( 5. ) IN the return it has been highlighted that the form of preference that has to be submitted by the candidate contains an explicitly expressed option where a candidate has to declare that the posts in respect of which he or she has not given preference he or she would not be considered for those posts. On the top of the form a note of caution has also been incorporated while filling of the form as regards the declaration of the order of preference. As set forth in the return it was imperative to indicate the order of preference. It has been asseverated that list of posts advertised was sent to the candidate alongwith the call letter for interview well in advance and the candidates had sufficient time to apply their mind and take conscious decision about the order of preference. The importance and implications of order of preference are prominently indicated on the form without any ambiguity. In this context plea of ignorance and inadvertent human error is not acceptable. The importance and implications of order of preference are prominently indicated on the form without any ambiguity. In this context plea of ignorance and inadvertent human error is not acceptable. It is highlighted that once the results were declared and petitioner was not selected on the post preferred by her, it appears that, as an after thought, the plea of mistake is put forward which actually does not exist. It is contended that the officer who checks the form has limited preview as indicated on the form itself. The official is only required to examine whether the candidate possesses the prescribed qualification for the specified posts such as Dy. S. P. and District Organizer, Tribal Welfare and it is not expected from the staff of the Commission to see that whether the candidate has exercised the option as per the form or not. Thus, there was no lapse on the part of the Commission. ( 6. ) A rejoinder affidavit has been filed by the petitioner stating that the petitioner appeared in the examination as per the advertisement published in Rozgar and Nirman dated 9-4-1998 and in the advertisement there were 16 categories of posts advertised out of which 9 for Class II and 7 Class III. The rules have been pressed into service to show that the petitioner is entitled to be given a similar post. Especially, Rule 15 has been highlighted. ( 7. ) I have heard Mr. Naman Nagrath and Mr. Parag Chaturvedi, learned Counsel for the petitioner, Mr. S. K. Yadav, learned Govt. Advocate for the State and Mr. Hemant Shrivastava, learned Counsel for the respondent No. 2. ( 8. ) THE spinal issue that arises for consideration is whether the case of the petitioner has been duly considered for the purpose of selection or her case has been ignored in contravention of the rules, regulations and documents relating to appointment procedure. Madhya Pradesh State Services Examination (Rules) provides that a Combined Competitive Examination called State Services Examination for recruitment for certain services/posts would be held annually by the Madhya Pradesh Public Service Commission. There is a provision for Preliminary Examination (Objective Type) for the selection of candidates for the Main Examination and the Main Examination (written and interview) for the final selection of the candidates for the various services and posts that find mention in the rules. There is a provision for Preliminary Examination (Objective Type) for the selection of candidates for the Main Examination and the Main Examination (written and interview) for the final selection of the candidates for the various services and posts that find mention in the rules. Rule 3 (iii) (a) which is relevant for the present purpose reads as under :- " (iii) (a ). After the interview the candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate of marks awarded to them in the Main Examination and in the interview. Due consideration will be given while recommending a candidate for a particular service, preference, if any, expressed by him/her in the application, subject to the following conditions :- (1) If a candidate has not expressed any preference in the application, he will be considered for all posts in the order in which these have been enumerated in the advertisement. (2) In case a candidate does not succeed in getting any of the posts of his preference, he will be considered on the basis of his aggregate of marks for other post (s) in the order in which these have been enumerated in the advertisement. However, he shall not be considered for any post (s) for which he has expressly indicated that he would not like to be considered for it. " Submission of Mr. Naman Nagrath and Mr. Parag Chaturvedi, learned Counsel for the petitioner is that the petitioner had not given any preference and, therefore, she is entitled to be considered on the basis of aggregate marks for other posts that have been enumerated in the advertisement. Per contra, Mr. S. K. Yadav, learned Govt. Advocate for the respondent No. 1 and Mr. Hemant Shrivastava, learned Counsel for the respondent No. 2 have submitted that a candidate would not be considered for the posts in respect of which he/she has expressly indicated that he/she would not like to be considered. The advertisement that has been brought on record as Annexure R-2 (3) lays a postulate that if a person has not indicated any preference in the application his case would be considered in respect of all the posts that appear in chronology in the advertisement. The advertisement that has been brought on record as Annexure R-2 (3) lays a postulate that if a person has not indicated any preference in the application his case would be considered in respect of all the posts that appear in chronology in the advertisement. There is a further stipulation in the advertisement that if the candidate does not secure the requisite marks for the post he has indicated then his case would be considered on aggregate basis for other posts as per advertisement, provided he/she has not expressed no unwillingness. In the case at hand, the rules as well as the advertisement make it unequivocally clear that a candidate who has expressly indicated that he or she would not be considered for the certain posts, he/she would not be considered for the same. A note of caution is also added in the declaration form indicating that the order of preference has to be filled up by the candidate and such filling up is mandatory; that the advertised post should be appended thereto; and that the said form has to be filled up with care since preference would not be changed afterwards. On a perusal of the return it appears that the form to indicate the order of preference in respect of list of post advertised was sent to the candidate alongwith call letter for interview well in advance and the candidate had sufficient time to apply her mind and take conscious decision about the order of preference. Submission of the learned for the petitioner is that the form was checked by the concerned official but he had not indicated any fault and further the petitioner had no knowledge or experience about such filling up. It is manifest from Annexure R/2-2 (the form filled up by the petitioner) that it has been mentioned that the posts for which the petitioner had not given priority her case would not be considered for the said post. The petitioner had given preference in respect of such posts for which she was not found eligible. She had not given any preference in respect of any Class III post. Assertion in the petition that the persons who scrutinized the form did not point the same, in my considered opinion, does not assist or aid the petitioner. The petitioner had given preference in respect of such posts for which she was not found eligible. She had not given any preference in respect of any Class III post. Assertion in the petition that the persons who scrutinized the form did not point the same, in my considered opinion, does not assist or aid the petitioner. The claim of the petitioner that she should have been selected for the posts in Class III services is sans substance as that would tantamount to change the order of preference which would usher in total chaos. ( 9. ) IT is to be borne in mind that the petitioner was aware of the rules, the conditions incorporated in the advertisement and the documents contained in Annexure R/2-2 which were sent to her well in advance prior to interview. There is no scintilla of dispute that the preference for the posts to which she had accorded, she has not been found fit. Submission of the learned Counsel for the petitioner is that the persons who have secured lesser marks than her in respect of other posts have been selected, an illegality has crept in. But the fact remains that the petitioner had not opted for the said posts. The petitioner should have been more conscious and careful while giving her preference. She kept her preference to a limited zone. Once the petitioner had kept her option to the limited and constricted zone of consideration she has to be considered in a limited spectrum. The Public Service Commission can not travel beyond the rules and the advertisement. The claim of the petitioner that she was not made aware is totally incorrect, as she very well knew the requirements made in Annexure R/2-2. Criticism of the officer who had scrutinized the form is absolutely irrelevant inasmuch as it is not his duty to find out what preference was given by a candidate. A candidate who appears in the examination of this nature is expected to go through the rules advertisement and documents and should be well aware what he or she is doing. Carelessness can not fructify into an uncalled for fruition. One can not be negligent and yet expect to have the benefit. ( 10. ) IN this context, I may profitably refer to the decision rendered in the case of Union of India v. M. V. V. S. Murthy, 1987 (Suppl.) SCC 371. Carelessness can not fructify into an uncalled for fruition. One can not be negligent and yet expect to have the benefit. ( 10. ) IN this context, I may profitably refer to the decision rendered in the case of Union of India v. M. V. V. S. Murthy, 1987 (Suppl.) SCC 371. In the aforesaid case a two- Judge Bench of the Apex Court held as under :- ". . . If preference given by the candidate are not available to be accommodated on the basis of the results of the candidates preference in the selection examination, instead of being rejected he would be available to be considered for the other service. As already pointed out, the Civil Services Examination is a combined examination for several services and when a vacancy is not available within the field of the candidates choice, it is open to the Central Government to consider the candidate for other services. The effect of this not is not that preferences given by a candidate securing a place lower to the respondent would not be entitled to his preference because he has been placed below the respondent in ranking. If ranking alone is to be the test, preference would have no meaning. On the other hand, the procedure that preferences are acceptable with reference to the position in the final list till vacancies in the services preferred are exhausted is the most logical one and meets the requirements of the scheme. " ( 11. ) IN the instant case, the documents clearly show that the petitioner had given preference for certain posts for which she did not qualify. The rule clearly prescribes that a candidate shall not be considered for any post (s) for which he had expressly indicated that he would not be considered for it. Annexure R/2-2 is the form which clearly shows that the post for which a candidate has not given preference his case, would not be considered. The said form has been duly signed by the candidate. The stand that it was signed without understanding or in a hurried manner can not be accepted as the forms were sent quite early to the candidates to be filled up and further the candidate while filling up the prescribed form is required to carefully go through the same as negligence in this regard makes one to face his/her Waterloo. The stand that it was signed without understanding or in a hurried manner can not be accepted as the forms were sent quite early to the candidates to be filled up and further the candidate while filling up the prescribed form is required to carefully go through the same as negligence in this regard makes one to face his/her Waterloo. That apart, if such a contention is allowed to stand, it would usher in total anarchy and chaos which law does not countenance. ( 12. ) IN view of the aforesaid premises, I do not find any merit in this writ petition and accordingly, the same stands dismissed without any order as to costs.