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2018 DIGILAW 197 (ALL)

ARYAN GAUTAM v. STATE OF U. P.

2018-01-24

VIVEK KUMAR BIRLA

body2018
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard Sri Vinod Kumar Mishra holding brief of Sri Vijay Gautam, learned counsel for the petitioner and Sri Shashi Kant Upadhyay, learned Standing Counsel appearing for the respondents. 2. Present petition has been filed seeking direction to the respondents to call the petitioner for interview and further selection process for the post of Warder/Bandi Rakshak at Fatehgarh, Furrukhabad in pursuance of the advertisement No. Ad 2 (4) Bharti/2011, dated 19.8.2011. 3. Facts in brief of the case are that pursuant to the advertisement issued in August, 2011 for the post of Warder/Reserve Warder and Female Warder in the respondent department advertised for different district the petitioner applied for Fatehgarh/Farrukhabad district in general category for the post of Warder, wherein 203 posts were advertised. The petitioner was not called for interview although he had obtained 20 marks in the written examination. 4. Submission of learned counsel for the petitioner is that the last candidate had also obtained 20 marks but he was called for interview and the petitioner was illegally not included in the interview list. It was submitted that the authorities have adopted pick and choose policy and deprived the petitioner, who has legitimate claim for appointment to the post applied for the respondent department. Drawing attention to Rule 5 of the U.P. Procedure for Direct Recruitment for Group ‘C’ Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2002 (hereinafter referred to as the Rules) it was submitted that the explanation given in the counter-affidavit that the last included candidate in the list of candidates, who were called for interview, the petitioner should have been included in the list and only after interview wieghtage of age could have been applied and that it cannot be applied for the purpose of calling for interview. Submission, therefore, is that the respondent authorities have not adopted a fair procedure and non-inclusion of the petitioner is arbitrary and illegal. 5. Submission, therefore, is that the respondent authorities have not adopted a fair procedure and non-inclusion of the petitioner is arbitrary and illegal. 5. Per contra, Sri Upadhyay drawing attention to paragraph 8 of the counter-affidavit and paragraphs 4 and 5 of the supplementary counter-affidavit, which was filed pursuant to the order of this Court dated 25.2.2016 has submitted that in general category 69 posts of Warder were advertised and as against them 690 persons were invited in ratio of 1:10, as provided by the Rules, according to which not more than 10 persons for one post could have been called for interview as per the amended Rule 5 of the Rules. Submission, therefore, is that it is not in dispute that for one general category post ten candidates were invited and, therefore, there is no illegality in not calling the petitioner for interview. 6. I have considered the rival submissions and have perused the record. 7. It is not in dispute that against 69 posts of Warders at Furrukhabad 690 candidates were called for interview. It has also not been questioned by the petitioner that the last candidate of this list has obtained 20 marks and his date of birth is 12.1.1991, whereas the date of birth of the petitioner is 25.6.1992 and as such preference was given to the candidate senior in age. 8. On the strength of sub-rule 5 of Rule 5 of the Rules 2002, Submission of learned counsel for the petitioner is that when two candidates have obtained same marks he should have also been called for interview. 9. Sub-rule 5 of Rule 5 of the Rules, 2002 talks about sub-rule 4, which talks about the candidates to be called for interview. This rule was amended in the year 2003. Sub-rule 5 of the aforesaid Rules is quoted as under : “5. The marks obtained by each candidate at the interview under sub-rule (4) shall be added to the marks obtained under sub-rule (3). The final select list shall be prepared on the basis of aggregate of marks so arrived. If two or more candidates obtain equal marks in the aggregate, the candidate senior in age shall be placed higher in the select list.” The unamended sub-rule 4(a) of Rule 5 of the Rules, 2002 is quoted as under : “4. The final select list shall be prepared on the basis of aggregate of marks so arrived. If two or more candidates obtain equal marks in the aggregate, the candidate senior in age shall be placed higher in the select list.” The unamended sub-rule 4(a) of Rule 5 of the Rules, 2002 is quoted as under : “4. (a) After results of the evaluations under clauses (a), (b), (c) and (d) of sub-rule (3) have been received and tabulated, the Selection Committee shall, having regard to the provisions of reservation referred to in Rule 4, hold an Interview. The number of candidates to be called for interview shall be four times the number of vacancies. In the case of candidates to be selected for a post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, only such candidates who qualify the typewriting test or shorthand and typewriting test, as the case may be, under clause (d) of sub-rule (3) shall be called for interview.” (emphasis supplied) The amended sub-rule 4 (a) of Rule 5 of the Rules, 2002 as amended in 2003 is also quoted as under : “4 (a). After results of the evaluations under clauses (a), (b), (c) and (d) of sub-rule (3) have been received and tabulated, the Selection Committee shall, having regard to the provisions of reservation referred to in Rule 4, hold an interview. The number of candidates to be called for interview against the number of vacancies shall be such as is considered appropriate by the Selection Committee, but in any case it shall not exceed ten candidates for one vacancy. In the case of candidates to be selected for a post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, only such candidates who qualify the typewriting test or shorthand and typewriting test, as the case may be, under clause (d) of sub-rule (3) shall be called for interview.” (emphasis supplied) 10. Thus, a perusal of the unamended and amended provisions of sub-rule 4 of Rule 5 of the Rules would clearly indicate that there is a substantial change in the number of candidates to be called for interview and a restriction has been put specifically in the number of persons to be called for interview in the ratio of 1:10. 11. Thus, a perusal of the unamended and amended provisions of sub-rule 4 of Rule 5 of the Rules would clearly indicate that there is a substantial change in the number of candidates to be called for interview and a restriction has been put specifically in the number of persons to be called for interview in the ratio of 1:10. 11. In such view of the matter, where the undisputed position is that against 69 posts 690 candidates were called for interview and ratio is 1:10 as provided by the amended Rules, 2003, the same has been correctly applied. In case the petitioner is also included in the aforesaid list, the number of candidates called for such interview would exceed the aforesaid ratio and therefore, the respondent authorities were justified in not calling the petitioner on the basis that the petitioner was lower in age (date of birth 25.6.1992) and the last candidate called for interview was higher in age (date of birth 12.1.1991). 12. In such view of the matter, prayer so made in the present petition cannot be granted. Present petition is devoid of merits and is accordingly dismissed.