Pratibha Chauhan Vs State Of Himachal Pradesh & Ors

Virender Singh, J

1. Petitioners, in their respective petitions, have invoked the jurisdiction of the erstwhile Himachal Pradesh State Administrative Tribunal (hereinafter referred to as the ‘Tribunal’), by way of Original Applications No.324, 1657, 1269, 1563 of 2015 and 4268 of 2016, preferred, under Section  19  of  the  Administrative  Tribunals  Act,  1985 (hereinafter referred to as the ‘Act’), seeking the following reliefs:-

“(i) That the impugned selection list-cum-result dated 09-02-2015 of Himachal Pradesh Administrative and Allied Services Examination, 2013 i.e. Annexure A-3, may kindly be quashed and set aside.

(ii) That the respondent may kindly be directed to revise the result in Himachal Pradesh Administrative and Allied Services Examination, 2013.”

2. After the abolition of the Tribunal, the said Original Applications were transferred to this Court and thereafter, registered as CWPOAs No.4994, 5329, 5229, 5200 of 2019 and 94 of 2020.

3. Since, there are common question of law and facts, involved in the abovementioned CWPOAs, as such, in order to decide the matter effectively, with the consent of the parties, the facts, as narrated, in CWPOA No.4994 of 2019, are taken into consideration for deciding the matter.

4. The petitioner has sought the abovementioned reliefs on the ground that respondent No.2 had issued the advertisement for selection of various posts, which were to be filled up on the basis of Himachal Pradesh Administrative Service Combined Competitive Examination, 2013.

4.1. According to the petitioner, initially 29 posts were advertised, out of which, 7 vacancies were of Himachal Pradesh Administrative Service Class-I (Gazetted), 5 vacancies of Himachal Pradesh Police Service, Class-I (Gazetted) and 17 vacancies of Block Development Officers, Class-I (Gazetted) were to be filled up, according to the advertisement. Later on, 4 more posts of Excise and Taxation Officer were added. The number of unreserved posts was 18.

4.2. It is the case of the petitioner that he applied for the same and appeared for Preliminary Examination, as unreserved candidate. Thereafter, he was called for Main Examination. The petitioner had also qualified the Main Examination and had been called for interview. Subsequently, final result was declared, in which, the petitioner did not find his name in the successful candidates. Thereafter, he has obtained the information, under the Right to Information Act, 2015, regarding the marks, obtained by 5 candidates, belonging to reserved category, in the Preliminary Examination, who, as per the case, set up by the petitioner, were selected against the general category posts in Himachal Pradesh Administrative and Allied Services Examination, 2013 (hereinafter referred to as the ‘HPAASE, 2013’).

4.3. According to the petitioner, the said information was supplied to him and thereafter, he came to know that respondents No.6 to 10 had got the benefit of reservation in securing their place in Main Examination. Respondent No.6 to 10 had participated in the Preliminary Examination, as reserved category and the particulars of the same have been mentioned in the application, which are reproduced, as under:-

Their cut-off marks of different categories in HPAASE, 2013 Preliminary Examination has also been reproduced.

4.4. In addition to this, the marks, obtained by respondents No.6 to 10, have also been mentioned in the petition, whereas, according to the petitioner, the minimum qualifying marks for general candidates were 202.8 marks, in Preliminary Examination. These facts have been mentioned to demonstrate that respondents No.6 to 10 have not secured minimum qualifying marks, which were cut-off marks for general categories.

4.5. In nutshell, it is the case of the petitioner that the cut-off marks for reserved category were less, in comparison of the cut-off marks for the general category candidates.

4.6. The petitioner is aggrieved from the act of respondent No.2 to recommend the names of respondents No.6 to 10, against the vacancies meant for general category.

4.7. According to the petitioner, respondents No.6 to 10 had appeared in the Main Examination, on the basis of the reserved candidates, by securing less marks, in comparison of the minimum requirement/minimum marks, required for general category (cut-off marks for general category).

4.8. It is the further case of the petitioner that once, respondents No.6 to 10 have obtained concession or relaxation in the Preliminary Examination, then, they cannot be selected against the posts, meant for general category. Representation was also made by the petitioner to the authorities, but, no positive response was received wherefrom.

4.9. In this way, the main grievance of the petitioner is that respondent No.2 had wrongly recommended 5 candidates of SC/OBC Category, who admittedly had qualified the Preliminary Examination of HPAASE, 2013, after availing the relaxation in the criterion, prescribed for general category candidates. The said act of respondent No.2 is stated to be in contravention of the instructions dated 12.11.2014, according to which, when, a relaxed standard is applied in selecting SC/ST/OBC candidates i.e. in age, experience, qualification, permitted number of chances, extended zone of consideration larger than what is provided for general category candidates, are to be counted only against the reserved vacancies. As such, those candidates are stated to be unavailable for being considered against unreserved vacancies.

5. Highlighting the fact that respondent No.2 had wrongly recommended the names of respondents No.6 to 10 against the vacancies, meant for general category, on the basis of above facts, a prayer has been made to allow the petition, by granting the reliefs, as claimed, in the petition.

6. When put to notice, the petition has been contested/controverted, by the respondents, by way of filing reply.

6.1. In the reply, filed by respondent No.2, the preliminary objections have been taken that the petitioner is estopped from assailing the selection of the private respondents, on the ground that he had appeared in the Main written examination and had been called for interview, but, he could not find place in the final merit list, as, he could not be allowed to approbate and reprobate.

6.2. In addition to this, respondent No.2 had also relied upon the Rules of Business of the Commission [Chapter V-7(a) and (b)], according to which, the marks, obtained by the candidates in the preliminary examination, will not be counted for determining their final order of merit and the marks, obtained by the candidates, in the Main Examination (written part, as well as, interview) would determine their final ranking. Highlighting the fact that scoring fewer marks, by the reserved candidates in the Preliminary Examination, it would not be relevant while determining the ultimate merit of the candidates.

6.3. It is the further case of respondent No.2 that the Preliminary Examination is just screening test, held for shortlisting the candidates in the ratio of 1:20.

6.4. On merits, the factual position, as pleaded in the application, has not been disputed. According to respondent No.2, respondents No.6 to 10 belong to vertical reservation and scored more marks than the cut-off marks of general category candidates. As such, names of respondents No.6 to 10 were rightly recommended against the general category. In this regard, respondent No.2 has relied upon the instructions dated 12.11.2014, issued by the Department of Personnel, Government of Himachal Pradesh.

6.5. According to the said instructions, a relaxed standard is applied while selecting SC/ST/OBC candidates. The relaxation is available regarding the age limit, experience, qualification and permitted number of chances in the written examination, extended zone of consideration larger than what is provided for general category candidates.

6.6. It is the specific case of respondent No.2 that respondents No.6 to 10 have not availed the above-cited concession or relaxation, at any stage.

7. Respondents No.6 to 10 have also filed their joint reply. In the reply, the factual position, as mentioned in the petition, has not been disputed, regarding conducting the examination and selection of respondents No.6 to 10. However, according to them, the marks, secured by them, in Preliminary Examination, do not have any bearing on the merit list, prepared for making recommendations for appointment to the posts in question, as, no weightage is given, on the basis of such marks, while determining the final merit list. Like respondent No.2, they have also taken the plea that the preliminary examination is only in the nature of screening test and does not affect the merit in the main examination.

7.1. It is the further case of respondents No.6 to 10 that they have not been given any relaxation in the matter of selection. They have also taken the plea that on the basis of preliminary examination, candidates are shortlisted, so that the Commission does not have to subject extraordinary large number of candidates into selection process on merit.

7.2. It is the further case of respondents No.6 to 10 that a candidate, belonging to the Backward Classes, can be selected against a general category, as, there is no reservation for general category candidates.

8. Petitioner has filed the rejoinder to the reply, filed by respondents No.2, denying the preliminary objections, by pleading that the reply of respondent No.2 is totally evasive and has not touched the substantial issue involved in the matter i.e. when, a reserved candidate has availed the benefit of concession in a preliminary stage, whether such candidate can be considered against a general category, in a later stage, or not.

9. Similarly, rejoinder to the reply, filed by respondents No.6 to 10, has also been filed.

10. The main grievance of the petitioner, in the present case, is that respondents No.6 to 10 had appeared in the preliminary examination, as reserved category candidates and were permitted to appear in the HPAS (Main Examination), on the basis of cut-off marks. The cut-off marks of different categories in HPAS, 2013, have been reproduced, by the petitioner in para No.4(iii) of the petition, which are reproduced, as under:-

11. As per the further case of the petitioner, respondents No.6 to 10 have obtained the following marks in the Preliminary Examination:-

12. This has been highlighted by the petitioner to show that the minimum qualifying marks for general category was 202.8 marks. As such, the said persons i.e. respondents No.6 to 10 cannot be considered in the general category.

13. Considering the rival submissions of the parties, before this Court, this Court is of the view that the pivotal point for determination in the above-titled petitions is about the necessity/importance of the Preliminary Exam.

14. As per the advertisement (Annexure A-1), for the relevant year, which was issued on 01.01.2014, para 4.2.6 (Significant Functional Instructions have been issued), is reproduced, as under:-

“Marks obtained in Preliminary Examination by the candidate who are declared qualified by the Commission for admission to the Main Examination will not be counted for determining their final order of merit.”

15. In para 6.3 of the advertisement, it has specifically been given the note, which is reproduced as under:-

“NOTE: Marks obtained by the candidates in the (Preliminary) examination will not be counted for the purpose of final order of merit. However, marks obtained in the Main written examination as well as in the viva-voce test would determine their final merit for selection.”

16. Respondent No.2-Himachal Pradesh Public Service Commission has annexed the copy of Rules of Business of Himachal Pradesh Public Service Commission, along with the reply, filed to OA No.1657 of 2015, at pg 47. These statutory Rules, governing the business of Himachal Pradesh Public Service Commission, under Chapter III, contain the following Rule 4(a)(ii):-

 “4(a)(ii) POSTS TO BE FILLED UP ON THE BASIS OF THE HIMACHAL PRADESH ADMINISTRATIVE SERVICE COMBINED COMPETITIVE EXAMINATION:-After receiving the requisitions from the Administrative Departments for making direct recruitment to the Himachal Pradesh Administrative Service and the posts to be filled up on the basis of the Himachal Pradesh Administrative Service Combined Competitive Examination on advertisement shall be published in the above manner in the month of January or any subsequent date to be decided by the Commission for inviting applications from the desirous & eligible candidates on the prescribed online recruitment application form uploaded on the website of the Commission. The requisition(s) for making direct recruitment to the posts/services to be filled up on the basis of this competitive examination received up to 31st May shall be included to the number of posts initially advertised after notifying in the newspapers/gazette.”

17. In Chapter-V, selection procedure has been prescribed. Relevant portion of Rule 7(A) in Chapter-V is reproduced, as under:-

“7.(A) SELECTION OF CANDIDATES TO THE FOLLOWING SERVICES/ POSTS SHALL BE MADE ON THE BASIS OF SELECTION PROCEDURE PRESCRIBED IN THE RESPECTIVE NOTIFIED RULES/ REGULATIONS:

(i) The Himachal Pradesh Administrative & Allied Services:

(a) Preliminary Examination:

The Himachal Pradesh Administrative Service Combined Competitive (Preliminary) Examination shall be conducted preferably in the month of May/June or on the date fixed by the Commission. There will be penalty (negative marking) for wrong answers marked by the candidate. The marks obtained by the candidates in the preliminary examination will not to be counted for determining their final order of merit.

Provided that in case there is a tie between or amongst the candidates on account of having obtained equal minimum qualifying marks in the preliminary examination all such candidates shall be called for the main examination.

(b) Written Competitive Examination & Viva-voce:

The number of candidates to be admitted to the Himachal Pradesh Administrative Service Combined Competitive (Main) Examination will be 20 times the total number of posts advertised. No candidate shall be considered to have qualified the written examination unless he / she obtains at least 40% marks in each compulsory papers and 45% marks in the aggregate.

Provided that the total number of candidates to be called for the viva-voce on the basis of written examination shall not exceed three (3) times the number of the posts advertised.

Provided further that in case there is a tie between or amongst the candidates on account of having obtained equal minimum qualifying marks in the written examination all such candidates obtaining equal minimum marks shall be called for the viva-voce test.

Provided further that marks obtained by the candidates in the main examination (written part as well as interview) would determine their final ranking. The marks obtained in the Compulsory Papers of English and Hindi will not be counted for overall ranking. Marks and rankings will be decided on the basis of marks obtained in all other compulsory and optional papers. In the event of a tie, order of merit shall be determined in accordance with highest marks secured in the viva-voce and shall the marks in the viva-voce of the candidates who tie be equal, then the order of merit shall be decided in accordance with the highest marks obtained by such candidates in the aggregate of the compulsory subjects.”

18. In view of the above, when, the marks, obtained in the Preliminary Examination, shall not be counted for determining the final merit list, then, non-challenge of these Rules, by the petitioner(s), is fatal for their case. Moreover, no attempt has been made, even after the said Rules have been relied upon by respondent No.2, in the reply, to challenge the same by way of amending the petition.

19. Learned counsel, appearing for the petitioner, could not satisfy the judicial conscience of this Court, as to how, the category matters, when admittedly respondents No.6 to 10 had scored more marks in the Main Examination, as well as, in the interview, in comparison with the petitioners, who had also appeared for the viva-voce.

20. Along with the petition, the petitioner has annexed the information, obtained, under the Right to Information Act, as Annexure A-4, according to which, the cut-off marks for the general category in the Main Examination is 464 and the highest score of the candidates in the general category is 588.

21. Even, the petitioners have not given the details of the marks, which they had obtained in the Main Examination, as well as, viva-voce. Moreover, the pleadings are totally silent as to how they are affected due to selection of respondents No.6 to 10, who admittedly have scored more marks, than the petitioners. In the absence of the marks, obtained by the petitioners, in the Main Examination, as well as, viva-voce, no relief can be given to them.

22. The scope of the Preliminary Examination, has elaborately been discussed by the Division Bench of the Uttarakhand High Court, in ‘Rajneesh Dwivedi Vs. State of Uttarakhand and Other’, reported in 2020 SCC OnLine Utt 336. Relevant paragraphs 26, 27 and 66 to 69 of the said judgment are reproduced, as under:-

“26. The screening test is merely a process of elimination to ensure that the number of candidates, in each of the categories, are called for interview only in the ratio of 1:3. If the total number of applications received, pursuant to the advertisement, is itself less the ratio of 1:3, it may then be unnecessary for the Commission to conduct a screening test to short-list candidates. For instance, in the present case, if the total number of applications received, to be considered for the 11 posts of Assistant Professor (Physical Chemistry), was less than three times the number of posts, i.e. less than 33 applications had been received, it was unnecessary for the Commission to conduct a screening test for all applicants, and it would have sufficed to call all the candidates for interview, in which event it is only the marks secured by them in the interview which would have been taken into consideration in determining inter-se merit, and in selecting candidates, on their merit, for the said post. Condition No. 16 of the advertisement dated 04.08.2017, therefore, stipulates that candidates would be declared successful for interview on the basis of the marks obtained in the screening test, if conducted. The applicants were made aware, by this condition in the advertisement, that a screening test may, or may not, be conducted, since the decision, whether or not to conduct a screening test depends upon the number of applications received, and a screening test is held only when the applications received far exceed the ratio of 1:3, of candidates to be called for interview.

27. In Chattar Singh, candidates were to be screened by a test, the object of which was to eliminate an unduly long list of candidates, and to restrict the number of candidates, who would sit for the main examination, upto 15 times the notified posts/vacancies; in other words for every one post/vacancy there should be 15 candidates; the ultimate object was to call three times the candidates for the viva-voce; the lowest range of aggregate marks, as cut off for the general category, was required to be so worked out as to get the required number of candidates including OBCs, Schedule Castes and Scheduled Tribes; under the proviso to Rule 13, if that range was not reached, by candidates belonging to the SCs or STs, there may be a 5% further cut off from the last range worked out for the general category, so as to declare them as having qualified for appearing in the main examination; in other words where candidates, belonging to the SCs and STs numbering 15 times the total vacancies reserved for them, were not available then the Commission had to go down further, and cut off 5% of the marks from the lowest of the range prescribed for the general category, and then declare as eligible the SC and ST candidates who secured 5% less than the lowest range fixed by Commission for the general category, so as to enable them to appear for the main examination; and candidates, who thus obtain qualifying marks, were eligible to appear and write the main examination.

66. As the manner and extent of reservation should be spelt out in the Government Order, it is only if there is an express bar in the Government Order, for migration of those who belong to the backward classes to the general category, would they then be disabled from competing for general category posts, for otherwise reservation under Article 16(4) does not operate as a communal reservation. If members belonging to the socially and educationally backward classes get selected in the open competition field, on the basis of their own merit, they will not be counted against the quota reserved for the backward classes. They will be treated as open competition candidates. (Indra Sawhney).

67. The concession in the screening test of lower minimum marks, extended in favour of SC/ST/OBC candidates, relates to their eligibility to appear for interview. At the stage, at which such concessions are extended to them, the actual selection process does not commence. It commences only when all the candidates, who were short-listed in the ratio of 1:3, are called for interview. Prescription of a lower minimum marks in the screening test, for applicants from the SC/ST/OBC categories, is only to bring them within the zone of consideration of 1:3, so that they can participate in the interview on merit. Once a candidate appears for interview, he competes against all the available posts in the general category, and it matters little to which category he belongs, for all candidates are required to appear for the interview which is common to all short-listed candidates irrespective of the category to which he belongs, reserved or unreserved.

68. As held by the Supreme Court, in Jitendra Kumar Singh, the expression "open competition" in Section 3(6) of the 1994 Act makes it clear that all eligible candidates, ie those who have been short-listed for interview, are to be assessed on the same criteria in the interview, irrespective of the category to which they belong. No candidate, be it from the SC/ST/OBC categories or from those in whose favour no reservation is provided, is entitled to be selected for posts in the general category unless he secures the minimum cut-of marks prescribed for the general category in the interview. It is only for selection to posts, reserved in favour of SC/ST/OBC categories, would it suffice, for candidates from these categories, to secure the prescribed lower minimum marks in the interview.

69. Further, in the present case, candidates from the reserved category, who were appointed in posts under the general category, were found more meritorious than the petitioner in the interview. Their appointment to posts, under the general category, was on their merit. The petitioner, having secured lower marks than them in the interview, cannot be heard to contend that they should have been adjusted only against posts reserved in favour of the OBC/SC/ST categories, and not in posts under the general category. Accepting the submission of Mr. Subhash Upadhyaya, learned counsel for the petitioner, that candidates, who were called for interview on the basis of their having secured marks lower than the cut-off marks prescribed for the general category candidates in the screening test, should be considered only against posts earmarked for the reserved categories, and should not be permitted to migrate to posts in the general category, would result in communal reservation, which was faulted by the Supreme Court in The State of Madras v. Smt. Champakam Dorairajan.”

23. It is also not the case of the petitioners that respondents No.6 to 10 have obtained less than 464 marks (cut-off marks), as, according to the Rules, the merit of only Main Examination, as well as, viva-voce only is to be taken into consideration, while preparing the final merit list. When, the marks, obtained in the Preliminary Examination, have specifically been excluded for being counted for final selection, then, in the absence of non-challenge to those instructions, is fatal for the case of the petitioners.

24. Even otherwise, the petitioners have participated in the selection process and now, they cannot challenge the said selection process after not getting themselves in the final merit list.

25. In view of the discussions, made hereinabove, the present petition, along with the above-titled petitions, are dismissed.

26. Pending miscellaneous application(s), if any, shall also stand disposed of.

27. Copy of this judgment be placed in the connected files.