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Madhya Pradesh High Court · body

2013 DIGILAW 770 (MP)

Shekhar Singh Chauhan v. State of M. P.

2013-07-05

Sujoy Paul

body2013
ORDER 1. By filing this petition under Article 226 of the Constitution, the petitioners have called in question the method of selection adopted by respondent No.3. The following relief is prayed for : “The petitioners, therefore, most humbly pray that this Hon’ble Court may kindly be pleased to allow this petition and thereby issuing a writ/mandamus thereby quashing the Advertisement No.02/Selection/2012 OR respondents may kindly be directed to the respondents to conduct the written examination for the post of Assistant Veterinary Surgeon and prepare the merit list accordingly. To pass such other further order(s) deemed fit and proper in the interest of justice. Costs may also be awarded.” 2. Shri Anil Sharma, learned counsel for the petitioners submit that initial advertisement for recruitment for the post of Veterinary Assistant Surgeon was issued vide advertisement, Annexure P-1. However, subsequently this advertisement was amended by issuing a corrigendum on 31.12.2012. Learned counsel for the petitioners by drawing the attention of this Court submits that total number of the posts of Vaterinary Assistant Surgeon was declared as 525. Bifurcation of the vacancies in the said advertisement is as under : in dk uke dqy fjfDr;ksa dh oxZokj la[;k fjfDr;ksa esa ls oxZokj e/;izns’k dh ewy in fuoklh efgykvksa ds fy, vkjf{kr in vuk vuq- vuq- v-fi-o- vuk vuq- vuq- v-fi-o- i’kq fpfdRlk 525 139 110 241 35 41 33 71 11 lgk;d ‘kY;K ¼75 cSd ykWx½ ¼75 cSd ykWx½ 3. The first contention of learned counsel for the petitioners is that admittedly 75 vacancies in SC and 198 vacancies in ST are admittedly backlog vacancies. Even vacancies are clubbed together with the general category vacancies and thereafter total number of vacancies are determined as 525. By placing reliance on M.P. Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 (hereinafter called as “Adhiniyam”), learned counsel submits that section 2(h) defines “Recruitment Year”. By taking this Court to section 4(3)(b) and (c) Shri Anil Sharma submits that the unfilled backlog vacancies can very well be carried forward but it cannot be filled along with the vacancies of another recruitment year and for that a special drive should have been initiated by the State Government as per mandate of section 4(3)(b) proviso. By taking this Court to section 4(3)(b) and (c) Shri Anil Sharma submits that the unfilled backlog vacancies can very well be carried forward but it cannot be filled along with the vacancies of another recruitment year and for that a special drive should have been initiated by the State Government as per mandate of section 4(3)(b) proviso. In addition, it is argued that the respondents have erred in carrying forward and clubbing the vacancies with the vacancies of a different recruitment year and with the general category vacancies. 4. The last submission of attack on the recruitment process is based on the rules of procedure prepared by the M.P.P.S.C. By relying on rule 5(4)(C) it is stated that where the number of applicants exceeds 500 and their number is also more than five times the number of vacancies, it is obligatory on the part of the respondents to conduct a written examination whereas they have only conducted an interview which is bad in law. By relying on AIR 1999 SC 2894 (Dr. Preeti Srivastava and another v. State of Madhya Pradesh and others), Shri Anil Sharma, learned counsel for the petitioners submits that candidates have passed and acquired qualification from different Universities/educational institutions. Accordingly, the respondents should have followed the procedure of scaling before subjecting them tothe selection conducted by the respondent-PSC. In support of this submission, he relied on a judgment of the Constitution Bench of Supreme Court, reported in (2006)8 SCC 212 (M. Nagaraj and others v. Union of India and others), to submit that the carried forward vacancies cannot be clubbed together with the vacancies of a subsequent year and such an action is impermissible in the eye of law. 5. Per contra, Shri R.D. Jain, learned Advocate General and Shri S.K. Jain, learned counsel for respondent No.3, supported the action and submits that there is no illegality or infirmity in the action taken by the respondents. Learned Advocate General relied on the judgment of Supreme Court in the case of Indra Sawhney v. Union of India [1992 Supp.(3) SCC 217]. He also placed heavy reliance on certain paragraphs in the judgment of Supreme Court in the case of M. Nagaraj (supra). Learned counsel for the other side would submit that their action is in consonance with the Adhiniyam and no interference is warranted. He also placed heavy reliance on certain paragraphs in the judgment of Supreme Court in the case of M. Nagaraj (supra). Learned counsel for the other side would submit that their action is in consonance with the Adhiniyam and no interference is warranted. Learned counsel also relied on AIR 2006 SC 2339 (K.H. Siraj v. High Court of Kerala), to submit that interview is held to be the best method to assess a candidate. In addition, it is stated that there is no violation of rule 5(4)(C) relied on by the petitioners. By providing mathematical calculation of the date, Shri R.D. Jain, submitted that as per the said date, it is clear that the respondents have adopted the method of selection in the present case. 6. Lastly, it is submitted that the method of selection was prescribed in explicit words in Annexure P-1 (advertisement). The petitioners were aware about these conditions and despite that without any protest or demur appeared in the interview. After having appeared in the interview, it is no more open for him to challenge the validity of the interview. For this, he relied on AIR 2008 SC 1913 (Dhananjay Malik and others v. State of Uttaranchal and others). 7. In rejoinder submissions, Shri Anil Sharma submits that petitioners were not called in the interview and, therefore, there is no question of their appearance or waiver of the right. Shri R.D. Jain submits that they were below the cut of marks and, therefore, they were not called in the interview. 8. No other point is pressed by learned counsel for the parties. 9. I have heard learned counsel for the parties at length and perused the record. 10. Before dealing with the rival contention, it is apt to quote section 2(h), which defines “recruitment year” and section 4(3)(b) and (c) as under: “2(h) “Recruitment Year” in relation to a vacancy means a period of twelve months commencing on the first of January of a year within which the process of direct recruitment against such vacancy is initiated.” Rule 5(4)(C) relied on the petitioners reads as under : “5(4)(C) where the number of applicants exceeds 500 and their number is also more than five times the number of vacancies, then a written examination shall be held. As a result of the written examination, candidates to be called for interview, shall be unless otherwise decided, in the ratio of 1:3 i.e., three candidates for one vacancy plus such additional candidates who have secured marks equal to the last candidate on the basis of the ratio aforementioned. Provided that written examination shall not be necessary when number of vacancies to be filled is ten or less, irrespective of the number of applications that may have been received. Provided further that the commission may decide to adopt the procedure with such minor modifications in the procedure prescribed herein before as may be warranted if the exigencies of the type of posts, the educational qualifications prescribed for the post and the number of applications likely to be received so required. Selection list of merit shall be based on total of marks obtained in written examination and marks obtained in interview both. Total marks of interview shall be 12.5% of the written examination. Applicant shall secure minimum marks in written examination as per decided by the commission. There are no minimum qualifying marks in the interview.” 11. Interestingly, both the parties have relied on the Constitution Bench judgment of Supreme Court in the case of M. Nagaraj (supra). In the said case, the broad issues which arose for determination before the apex Court were in reference to (i) validity, (ii) interpretation, and (iii) implementation of the 77th, 81st, 82nd and 85th Constitution Amendment Acts. The apex Court considered the earlier judgments delivered by it on the aforesaid aspects. The Supreme Court opined that Articles 16(4A) and 16(4B) are enabling provisions. The “width test” needs to be applied and the boundaries of the width of the power, namely, the ceiling limit of 50% (quantitative limitation) needs to be implemented. However, a simple reading of this judgment markes it clear that the apex Court opined that insertion of Articles 16(4A) and 16(4B) are in consonance with the judgment of Supreme Court delivered in the case of Indra Sawhney (supra). Lastly, it is held that these amendments have nexus with Articles 17 and 46 of the Constitution. 12. The bone of contention of the petitioners is that the respondents have erred in clubbing the backlog vacancies of earlier recruitment year with that of present year which amounts to exceeding 50% “with test”. Lastly, it is held that these amendments have nexus with Articles 17 and 46 of the Constitution. 12. The bone of contention of the petitioners is that the respondents have erred in clubbing the backlog vacancies of earlier recruitment year with that of present year which amounts to exceeding 50% “with test”. Before dealing with this aspect, it is apt to quote Article 16(4B), which was inserted by 81st amendment in the Constitution. It reads as under : “(4B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up into that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.” (Emphasis supplied) A bare perusal of this provision itself shows that whenever certain reserved vacancies are carried forward and filled up in the next year/years, such class of vacancies shall not be counted and considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year. 13. In Madhya Pradesh, Adhiniyam/enabling provision aforesaid was already in force. Section 4(3)(b) makes it clear that the carried forward vacancies shall not be counted against the quote of vacancies reserved for concerned category of persons for the recruitment year to which it is carried forward. Sub-section (3)(c) of section 4 also makes it clear that such carried forward vacancies shall form a separate distinct group and will not be counted with the reserved vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. 14. If section 4 of the Adhiniyam is read conjointly with Article 16(4B) of the Constitution, it makes it clear like noon-day that carried forward vacancies shall not form part of the vacancies of the later recruitment year nor it shall be counted to work out the percentage of reservation. 14. If section 4 of the Adhiniyam is read conjointly with Article 16(4B) of the Constitution, it makes it clear like noon-day that carried forward vacancies shall not form part of the vacancies of the later recruitment year nor it shall be counted to work out the percentage of reservation. Thus, the petitioners’ contention that there is more than 50 per cent reservation is devoid of merits. To work out/calculate the percentage the petitioners have included the backlog vacancies (75 SC + 198 ST). These vacancies of backlog cannot be taken into account in view of the aforesaid provisions to determine the percentage of reservation in the subsequent recruitment year. Thus, this contention of petitioners completely fails. 15. A simple reading of proviso to section 4(3)(b) of the Adhiniyam makes it clear that it is an enabling provision wherein it is open to the State Govoernment to initiate a special recruitment drive to fill up the backlog vacancies. I am unable to read this provision in the manner suggested by Shri Anil Sharma. In other words, I am unable to persuade myself with the line of argument of the petitioners that the backlog vacancies can be filled up only by way of special drive and cannot be filled up normally. Neither section 4 nor Article 16(4B) prohibits the State to fill up the posts in any manner i.e. by way of special drive or otherwise. In para 96 of the judgment of M. Nagaraj (supra), the apex Court opined as under : “Therefore, in effect, Article 16(4B) grants legislative assent to the judgment in R.K. Sabharwal v. State of Punjab [ (1995)2 SCC 745 ]. If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory and within the limitations indicated hereinafter.” Thus, this contention of the petitioners must also fail. 16. The contention regarding following scaling method does not require any consideration by this Court in absence of any specific prayer in this regard in the relief clause. Even otherwise, this is within the province of the selecting authority to decide the method of selection in accordance with rules. 16. The contention regarding following scaling method does not require any consideration by this Court in absence of any specific prayer in this regard in the relief clause. Even otherwise, this is within the province of the selecting authority to decide the method of selection in accordance with rules. In absence of showing any violation of rule in not adopting the scaling method, of flaw can be found in the action of the respondents. The judgment in the case of Dr. Preeti Srivastava (supra), has no application in the facts and circumstances of the present case. 17. So far the contention regarding written examination is concerned, it is based on rule (C) filed by the respondents. A careful reading of Article 16(4B) of the Constitution and section 4 of the Adhiniyam leaves no room for any doubt that the carried forward vacancies are not to be counted for the purpose of determining percentage of reservation. There is no bar for counting these vacancies for other purposes. In the considered opinion of this Court, the requirement of rule (C) aforesaid is of two fold : (i) the number of applicants/candidature must exceed 500, and (ii) number of applicants/candidature must be five times the number of vacancies. The said twin conditions are simultaneously required to be fulfilled for the purpose of holding written examination. At the costs of repetition, it is clear that carried forward vacancies can also be counted for the purpose of determining the number of applicants because the only prohibition in not counting the said vacancies is only for the purpose of determining the percentage of reservation. If in the aforesaid factual backdrop rule (C) is applied, it will be clear that the total number of applications/candidature received by the respondents is 1126 and total number of posts are 525. If 525 is multiplied by 5, it comes to 2625. Thus, the number of applications are not five times the number of vacancies. Thus, the necessary conditions mentioned in the rule is not fulfilled. The respondents in explicit terms made it clear in the advertisiement itself that in these situation, the candidates will be subjected to interview only. No case is made out by the petitioners for issuing a command to the respondents for conducting written examination. 18. On the basis of aforesaid analysis, the petition must fail. Petition is dismissed being meritless. Ad-interim order is vacated. No costs. No case is made out by the petitioners for issuing a command to the respondents for conducting written examination. 18. On the basis of aforesaid analysis, the petition must fail. Petition is dismissed being meritless. Ad-interim order is vacated. No costs. .............