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Ashutosh Tripathi v. Hon'ble High Court Of Judicature At Alld. Thru' R.G. & Ors. - WRIT - A No. 28209 of 2005 [2005] RD-AH 1937 (16 August 2005)


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                                                                                                                     Court No. 36

Civil Misc. Writ Petition No.  28209  of   2005

Ashutosh Tripathi and others Vs.  High Court of Judicature at Allahabad  and others.


Hon. Sushil Harkauli, J.

Hon. G.P. Srivastava, J.

We have heard the learned counsel for the petitioner, learned Addl. Advocate General Sri Sudhir Agarwal for the State and the High Court and Sri M.A. Qadeer for the U.P. Public Service Commission.

The petitioners No. 7 and 8 have been deleted from the array of parties leaving six petitioners in this writ petition.

         These petitioners were candidates at the P.C.S. (J) examination 2003 held by the U.P. Public Service Commission. Results have been declared and recommendations have been made to the Governor of U.P. for the appointments.

        The prayer in this writ petition is that the reservation roster for appointments be quashed. The roster has been created by the State Government pursuant to the provision of section 3 (5) of the U.P. Public Services ( Reservation for Scheduled castes, scheduled Tribes and Other Back Ward Classes) Act, 1994. Annexure-V to this writ petition is the disputed roster upto the first 100 points. The ground for challenge is that implementation of this roster would result in increase of the reserved vacancies beyond the 50% permissible limit. The argument is misconceived and has been raised because of a lack of careful examination of that roster.

In the roster the first vacancy has been allocated to Scheduled Caste, the second to Scheduled Tribe, the third to Other Backward Classes (OBC), the 4th to General and the 5th to Scheduled Caste and so on. However after the 95th vacancy has gone to OBC candidate bringing the total allotment of vacancies to OBC to 27 out of 100, thereby completing the quota of OBC candidates, no post from 96 to 100 has been allocated to OBC candidate. The extent of reservation as provided in section 3(1) of the aforesaid 1994 Reservation Act is 21% for Scheduled Castes, 2% for Scheduled Tribes and 27% for OBC. The reservations are granted in accordance with this main provision. At the time of making appointment the roster is utilized and while utilizing the roster as soon as the percentage quota of each reserved category is reached, no further vacancy or post are allotted to that reserved category. In this manner reservation logically cannot exceed 50%. We have no reason to assume that while applying the roster in making the appointments the above law shall not be followed by the Appointing Authority.

          However due to some error of calculation in the advertisement for the present P.C.S. (J) examination 2003, out of total 347 vacancies 174 had been reserved, making it in excess of the permissible 50%. We have already rectified this error by our final order passed in another writ petition No. 47844 of 2005 directing that out of the total 347 vacancies only 173 vacancies will be filled by reserved category candidates according to the percentage of reservation permissible for each reserved category; and 174 vacancies will go to the general candidates.

         It may be mentioned here that when the said writ petition No. 47844 was filed a question was raised that because of increase of one seat in the general category more candidates from that category would have to be called for interview. The Commission's counsel had made a statement that the number of candidates actually called for interview in the General category were proportionate to 174 vacancies. Maybe due to decrease of one seat in the reserved category the number of candidates in any one reserved category should have been proportionately less. But, firstly this difference is too small to be relevant; secondly having regard to the vacancies, fixation of the proportion of candidates for interview is for making the event manageable for the Commission; and lastly the petitioners can not be said to have been prejudiced by this.      

Another point raised by the petitioner during argument relying upon para 36 of the writ petition and the last 3 lines of the advertisement issued by the U.P. Public Service Commission is that while the advertisement reserved to the Commission the right not to call a candidate for interview despite high aggregate marks, if that particular candidate has failed to secure the minimum marks in the law papers. According to the petitioners, instead of law papers the Commission has fixed certain minimum qualifying marks in language paper (English) and the Commission has not called any candidate for the interview unless that candidate has been over to secure those minimum marks in the paper of language. Sri M.A. Qadeer representing the Commission has stated at the Bar, upon instructions received by him that this averment is not correct. According to him the main written examination consists of 5 papers of 200 marks each, there are three law papers, one paper of general knowledge and one paper of language. There are no minimum qualifying marks fixed by the Commission in any individual paper. However a minimum qualifying percentage of mark in the aggregate marks of a candidate has been fixed at 40% for General and O.B.C. candidates and 35% for SC/ST candidates. In view of this statement, which we have no reason to doubt, the petitioner's contention under consideration fails.

The learned counsel for the petitioner has submitted that persons qualifying the written test as reserved category candidates should not be permitted to get selected finally as general category candidates even if they have secured marks higher than the general category candidate. This proposition has already been repelled by a learned Single Judge of this Court in the case of  Narendra Pratap Singh Vs. Director General of Police and others (2002) 3 U.P.L.B.E.C. 2304. We have been shown no good reason to take a different view.  

The next argument raised by the learned counsel for the petitioners is that the result of the preliminary examination, and the main (written) examination is not declared category wise. They mean to say that it is not shown in the published result as to whether a particular roll number has qualified in the general category or in a reserved category and if so under which reserved category.

Firstly, even if that be so we fail to see how any candidate is prejudiced by lack of such information. Secondly it is the policy of the Commission not to allow the interview board members to know, at the time of taking interview whether the candidate has qualified in the general category or one of reserved categories or how many marks a candidate has obtained in the written examination; therefore, it would be undesirable to make that disclosure at the premature stage of the result of preliminary or main examination. The lack of disclosure of category or the caste of the candidate reduces the possibility of any kind of bias at the time of interview.

The next point urged by the learned counsel for the petitioners is that although the procedure of "scaling" in the case of P.C.S. (J) examination by the U.P. Public Service Commission was up held by the Supreme Court, but while deciding that case the Supreme Court has over looked several points. Firstly it has not been shown how it is open to this Court to examine such a contention. Secondly, no such allegedly overlooked points have been shown to us. In fact even the judgment of the Supreme Court has not been placed before us to justify the argument. Therefore we decline to go into that question. Arguments of this nature require much more serious preparation and cannot be advanced in the casual manner in which the submission has been advanced before us.

Learned counsel for the petitioner has then submitted that the question of "scaling" has been referred to a larger Bench of the Supreme Court. We have not been shown that order of reference. Therefore we are unable to examine this argument.

The next argument from the petitioners' side is that no reservation has been provided to ex service men in the current P.C.S. (J) examination.

This reservation is being claimed by the petitioners under the U.P. Public Services ( Reservation for Physically Handicapped, Dependents of Freedom-Fighters and Ex-Servicemen)Act, 1993. In reply it has been submitted by the respondents that after 1999 reservation for Ex-Servicemen is not available under the said Act in Group A and Group B posts. They have relied upon Section 3 (1) (i-a). The said provision reads as follows:

"3. Reservation of vacancies in favour of physically handicapped etc.

(1)There shall be reserved at the stage of direct recruitment-

                  (i-a)  in public services and posts other than group ''A' posts or group ''B'                        posts, on and from May 21, 1999 two percent of vacancies, land on from the date on which the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) (Amendment) Act, 1999 is published in the Gazette, five per cent of vacancies, for Ex-Servicemen."

Under section 2 (d-l) of the same Act "group-A post" or "group-B post" means the post specified as such by the State Government from time to time.

Rule 2 of the U.P. Judicial Service Rules, 2001 states clearly that the status of the service is a State service comprises Group ''A' and Group ''B' posts meaning thereby that no posts other than Group ''A' and Group ''B' is available in the U.P. Judicial Service. Therefore the reservation for Ex-servicemen would not be available. Any advertisement by the U.P. Public Service Commission   to the contrary or any mistake in the requisition sent by the Commission to the appointing authority  which provides for unauthorized reservation and cannot be permitted to over ride the Acts or the Rules. There can be no estoppel  against Statute. Civil Misc. W.P. No. 58359 of 2005

Hon'ble Sushil Harkauli J.

Hon'ble Vikram Nath, J.

List revised. No one appears for the petitioners.

List the case in the ordinary course.        

Dated : September 12, 2005


The petitioners raised a grievance that they are not informed their marks secured by them in the written examination and interview, if called for it.

Sri M.A. Qadeer has stated on behalf of the Commission that after final selection is over marks sheet are sent to all individual candidates who had appeared in the main examination informing him of the marks secured by him. Sri Qadeer has also stated that for the present examination the mark sheets would have been dispatched, but the pendency of litigation by way of this and several other pending writ petitions has cast a cloud upon the finality of the selection, therefore the mark sheets have not been dispatched so far. He states that after the selection becomes final mark sheets will be sent.

In view of the above this writ petition is dismissed.

Dt. 16.8.2005



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