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2016 DIGILAW 2670 (ALL)

SAVITA RANI YADAV v. STATE OF U. P.

2016-08-03

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner was a candidate for the appointment on the post of Constable. She has preferred this writ petition for quashing the order dated 03rd December, 2015 passed by the second respondent, whereby her representation has been rejected on the ground that the relief which she has sought for compliance of the order of this Court in the case of Matin Rao and another v. State of U.P. and others, 2015(2) ADJ 448 , has been set aside in State of U.P. and others v. Pankaj Kumar, 2015(5) ADJ 390 (DB) and Special Appeal Defective No. 372 of 2015 (State of U.P. and others v. Matin Rao and another) vide judgements dated 06th May, 2015 and 26th May, 2015. 2. A brief reference to the factual aspects would suffice. 3. The second respondent issued an advertisement No. 1 of 2009 dated 19th May, 2010 calling applications from the candidates for the appointment on 35000 posts of Constables in Civil Police. The vacancies belonging to Other Backward Class were 9450 posts. Some of the candidates under the OBC category preferred Matin Rao and another v. State of U.P. and others, 2015(2) ADJ 448 and Civil Misc. Writ Petition No. 38526 of 2010 (Pankaj Kumar v. State of U.P. and others). The basic grievance of the petitioners in the said writ petitions was that the written examination was comprised of four parts and each part contains 40 questions and each question carried 1.25 marks thus 50 marks in each part and 160 questions in total prescribed in four parts carried 200 marks. 4. The petitioners and other unsuccessful candidates in the said writ petition made a grievance that there were six questions which related to Part-II and two questions related to Part-IV and all those questions were found to be wrong so the assessment of the comparative merit was stated to be confined to 154 questions. 5. The learned Single Judge found that evaluation of their marks was untenable. In addition to the aforesaid grievance in some of the petitions, an issue was also raised with regard to the application of horizontal reservation. In respect of the evaluation of answer-scripts the learned Single Judge issued a direction for awarding 1.25 marks against each question admitted correctly with an equal doing of all marks against six wrong questions. In addition to the aforesaid grievance in some of the petitions, an issue was also raised with regard to the application of horizontal reservation. In respect of the evaluation of answer-scripts the learned Single Judge issued a direction for awarding 1.25 marks against each question admitted correctly with an equal doing of all marks against six wrong questions. Thus the Court found that each candidate is entitled for 7.50 marks for the reason that the respondents had adopted a faulty method of assessment in the written examination. Insofar as the wrong application of horizontal reservation was concerned, the learned Single Judge found that a Division Bench in the case of Rajeev Kumar v. State of U.P. and others, 2010(7) ADJ 608 (DB) has already issued the direction. The learned Single Judge has quoted the relevant paragraph in the judgement. The learned Single Judge has issued the following directions: “(1) The respondents shall draw a final merit list of OBC category candidates on the basis of evaluation of marks awarding 1.25 marks against each correct question to all the candidates in the written examination and extend the benefit of 7.50 marks admissible against six wrong questions equally to all and accordingly draw the overall merit list of selected candidates for appointment and determination of seniority as per rules, (2) The respondents shall restrict the appointment of female category candidates to the extent of 20% vacancies i.e. 1809 and filling up of vacancies beyond this percentage shall stand dehorse the law and being impermissible is liable to be dispensed with so far as the advertisement in question is concerned. (3) The vacancies remaining unfilled due to shortfall of candidates in other categories of horizontal reservation i.e. freedom fighter, ex-servicemen and home guard may be filled up from amongst OBC candidates as per their overall merit drawn in terms of the direction No. 1 issued herein above. In absence of a rule to carry forward the vacancies of horizontal reservation, all the three questions i.e. (a), (b) and (c) formulated above stand answered in terms of the directions issued herein above and the State Government is directed to carry out the above directions within a period of four months.” 6. In absence of a rule to carry forward the vacancies of horizontal reservation, all the three questions i.e. (a), (b) and (c) formulated above stand answered in terms of the directions issued herein above and the State Government is directed to carry out the above directions within a period of four months.” 6. Dissatisfied with the order of the learned Single Judge a special appeal, Special Appeal Defective No. 343 of 2015 (State of U.P. and others v. Pankaj Kumar) was filed against the direction No. (1). The Division Bench found that the learned Single Judge had compared the marks secured by the candidates by hypothetical instances and the Court was of the view that in respect of those wrong questions the Board had constituted a committee for resolving the issue. In its meeting dated 28th April, 2010 the Board took a decision to apply a uniform formula for the purpose of evaluation. The Board had notified the said formula on its website on 06th May, 2010 for every candidate in uniform manner. The formula was as follows: “the correct answers multiplied by the total marks of the paper divided by the number of correct questions.” 7. The Division Bench set aside the direction No. (1) in the following terms: “The learned Single Judge compared the marks obtained by the respondent with three hypothetical instances described as candidates X, Y and Z respectively. The danger of striking down a decision of an administrative authority on the basis of hypothetical instances is illustrated by the case in point. Aberrations cannot be the basis of deciding upon the legality of the decision making process or the decision of an administrative authority. That cannot be the parameter for the application of judicial review. While exercising the power of judicial review in such matters, the task of the Court is to deduce as to whether the authority has applied a standard which is extraneous or one which no reasonable body of person would adopt. As we have noted, the standard was applied uniformly and was based on an objective foundation. The next aspect of the judgment and order of the learned Single Judge which merits emphasis, is that the first operative direction commands the appellants to draw a fresh merit list only for OBC candidates by awarding 1.25 marks to each of the six wrong questions equally to all candidates. The next aspect of the judgment and order of the learned Single Judge which merits emphasis, is that the first operative direction commands the appellants to draw a fresh merit list only for OBC candidates by awarding 1.25 marks to each of the six wrong questions equally to all candidates. The final select list has not been disturbed in respect of other candidates and the exercise is directed to be carried out only in respect of OBC candidates. This, in our opinion, would be impermissible because a different standard of assessment would apply to one category as distinct from another. The standard of assessment has to be uniform.” **** **** **** **** **** **** For these reasons, we have come to the conclusion that operative direction No. (1) which is challenged in the present appeal is erroneous. The special appeal would have to be allowed and is, accordingly, allowed by setting aside the first operative direction issued by the learned Single Judge extracted in the earlier part of this order.” 8. As can be seen from the judgement of the Special Appeal, the State has filed Special Appeal only against the direction No. (1) of the learned Single Judge. After the decision of the Special Appeal, a large number of writ petitions were filed for a direction upon the respondents to comply the direction Nos. (2) and (3) issued in Matin Rao (supra) which has been extracted herein before. 9. The petitioner has also filed Writ Petition No. 19498 of 2015 which was disposed of with the following observations: “The petitioner claims that in case 7.5 marks, as directed by this Court, are awarded to him he would be in the merit list. Having regard to the circumstances of the case, I am of the view that calling the respondents will not serve any purpose in view of the controversy involved in the matter. Accordingly, to meet the end of justice, the writ petition is disposed of by issuing a direction to the second respondent to consider the grievance of the petitioner and pass order in accordance with law expeditiously. No order as to costs.” Consequently, the present petition is also disposed of in terms of the aforesaid judgement dated 23.2.2015 as quoted above.” 10. No order as to costs.” Consequently, the present petition is also disposed of in terms of the aforesaid judgement dated 23.2.2015 as quoted above.” 10. In compliance of the said directions the petitioner has preferred a representation on 15th April, 2015, which is on the record as annexure-8 to the writ petition. From a perusal of the said representation it is evident that she has raised only one grievance in the representation that pursuant to the order of this Court in Matin Rao (supra) she is entitled to be awarded 7.5 marks and in case she is awarded 7.5 marks she would qualify. 11. The said representation has been rejected by the impugned order dated 03rd December, 2015 on the ground that her relief for implementation of the direction No. (1) has already been set aside by the Division Bench in Special Appeal Nos. 343 of 2015 and 372 of 2015. 12. Learned Counsel for the petitioner has placed reliance on two judgements of this Court passed in Writ-A No. 64630 of 2014 (Anil Kumar v. State of U.P. and others) and Writ-A No. 6931 of 2015 (Rajendra Singh v. State of U.P. and others). 13. Insofar as the order orders this Court in the case of Savita Rani Yadav v. State of U.P. and others, Writ-A No. 19498 of 2015, decided on 8th April, 2015; Anil Kumar v. State of U.P. and others, Writ-A No. 64630 of 2014, decided on 1st December, 2014; and, Gajendra Singh v. State of U.P. and others, Writ-A No. 6931 of 2015, decided on 5th February, 2015, are concerned, all the aforesaid writ petitions were disposed of prior to the judgement in State of U.P. and others v. Pankaj Kumar, 2015(5) ADJ 390 decided on 6th May, 2015. The operative direction No. (1) of the order of the learned Single Judge in Matin Rao (supra) was set aside on 06th May, 2015. The aforesaid three cases have been decided prior in time, therefore, this Court has issued a direction to comply the order in Matin Rao (supra). 14. The operative direction No. (1) of the order of the learned Single Judge in Matin Rao (supra) was set aside on 06th May, 2015. The aforesaid three cases have been decided prior in time, therefore, this Court has issued a direction to comply the order in Matin Rao (supra). 14. The learned Counsel for the petitioner has heavily relied on an order of the learned Single Judge in the case of Pavitra Kumar and 5 others v. State of U.P. And 2 others, Writ-A No. 32350 of 2015, decided on 27th May, 2015, wherein in spite of taking note of the judgement of the Division Bench in Pankaj Kumar (supra), the Court has issued the following directions: “It is needless to point out that the other directions given in the case of Matin Rao (supra) are intact as appeal against them was not pursued before the Hon’ble Division Bench and as such any other right which could be claimed by the petitioner with regard to the other instructions is already covered by judgment in Matin Rao’s case, and the State Authorities are under obligation to consider the same. With the aforesaid observations, the writ petition stands disposed of.” 15. From the order of learned Single Judge, it is evident that the Court’s attention was not drawn to the fact that the judgement in Rajeev Kumar (supra) and Matin Rao (supra) was in respect of the same selection. In the case of Rajiv Kumar the issue raised was in respect of the application of horizontal reservation. 16. In Rajiv Kumar (supra) the Court found that the respondents had wrongly applied horizontal reservation in respect of female category candidates. The relevant part of the judgement reads as under: “In the instant case, the contention of the appellant, therefore, has to be accepted in terms of the issue raised in Ground No. 13, extracted herein above. The short counter-affidavit, therefore, does not conform to the terms and conditions of the advertisement and the ratio of the decision of the Apex Court, referred to above. Consequently, the calculation in the notification dated 17.5.2010 for Other Backward Class and the selection made to the extent of contravention, as indicated above, is unsustainable. Accordingly, the judgment of the learned Single Judge dated 5.7.2010 passed in Civil Misc. Consequently, the calculation in the notification dated 17.5.2010 for Other Backward Class and the selection made to the extent of contravention, as indicated above, is unsustainable. Accordingly, the judgment of the learned Single Judge dated 5.7.2010 passed in Civil Misc. Writ Petition No. 38299 of 2010 is set aside, and the claim of the appellant is remitted back for consideration afresh by respondent No. 2, in the light of the observations made herein above, within a period of six weeks from the date of presentation of a certified copy of this order before him. It is further directed that in the event the appellant succeeds in his claim upon recalculation, the respondents shall be obliged to offer appointment to the appellant if he is otherwise eligible. The entire exercise shall be completed and the appellant shall be informed accordingly in the time frame provided herein above. The appeal stands disposed of accordingly.” 17. Relevant it would be to point out that against the order in Rajiv Kumar (supra), the State had filed a Special Leave Petition to Appeal (Civil) No(s). 32344 of 2010, which was dismissed on 12th July, 2013 with the following observations: “We have heard learned counsel for the petitioners and learned counsel for the respondent. The view taken by the High Court is in accord with the decision of this Court in “Anil Kumar Gupta and others v. State of U.P. and others”, (1995) 5 SCC 173 . The impugned judgment thus does not call for any interference. Special leave petition is dismissed. Interim order stands discharged.” 18. A statement has been made at the Bar by the learned Standing Counsel that after the dismissal of special leave petition, the State has re-calculated the vacancies strictly in terms of the directions in Rajeev Kumar (supra) and after the necessary adjustment the candidates were sent on training and they have now been appointed, thus the direction in Rajeev Kumar (supra), has been fully complied with and no dispute remains with regard to the issue raised in Rajeev Kumar’s case and for the aforesaid reasons, the State had filed an appeal against the judgement in Matin Rao (supra) only in respect of direction No. (1) issued by the learned Single Judge issued in Matin Rao’s case. 19. In view of the above, I find that the writ petition is not only misconceived but is frivolous. 19. In view of the above, I find that the writ petition is not only misconceived but is frivolous. The petitioner has tried to mislead this Court. It was the duty of learned Counsel to place correct facts before this Court in the case of Pavitra Kumar (supra). The observation made by learned Single Judge is per incuriam. In Matin Rao’s case the directions were in respect of the issue involved in Rajeev Kumar’s case, which have already been complied with by the respondents. Hence, in my view, the direction Nos. (2), (3) & (4) were superfluous as those directions stood complied with. 20. As a sequel to above, I find that the present writ petition is misconceived and is liable to be dismissed. Accordingly, it is dismissed. 21. No order as to costs. ——————