Sunil Kumar Sinol vs State Of U.P.& 3 Ors.
2013 Latest Caselaw 6412 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 52468 of 2013
 
Petitioner :- Sunil Kumar Sinol
 
Respondent :- State Of U.P.& 3 Ors.
 
Counsel for Petitioner :- Vijay Gautam
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. In compliance of this Court's order, respondents have file counter affidavit. Counsel for the petitioner does not propose to file rejoinder affidavit. As agreed and requested by learned counsel for the parties, I proceed to decide the matter finally at this stage under the Rules of the Court.

2. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

3. The minimum prescribed educational qualification as per Rule 8 of U.P.Chikitsa Evam Swasthya Vibhag Dark Room Sahayak (Arajpatrit) Sewa Niyamawali, 1998 (hereinafter referred to "Rules, 1998") is Intermediate with Science or equivalent qualification duly recognized by Government.

4. Sri R.C.Yadav, learned Standing Counsel did not dispute that petitioner possess requisite minimum qualification. He however, submitted that respondents have made a shortlisting of eligible candidates and therefore, have confined initial selection to those candidates, who are graduate and that is why, petitioner has not been allowed to participate in the selection.

5. The question whether in the present case shortlisting by respondents can be said to be valid and consistent with the procedure of recruitment under the rules.

6. The system of shortlisting where a very large number of candidates have applied, in certain circumstances, has been recognized and upheld but it all depends on procedure of recruitment and some other relevant factor, which I would discuss in detail hereinbelow.

7. In Government of Andhra Pradesh Vs. P.Dilip Kumar, 1993 (2) SCC 310, the Court said that method of shortlisting can be validly adopted by the selection body. It was reiterated in M.P. Public Service Commission v. Navnit Kumar Potdar AIR 1995 SC 77.

8. However, in what circumstances, the procedure adopted can be said to be valid would depend upon the nature of recruitment, the procedure prescribed for recruitment under the Rules and various other similar relevant factors. In a case where recruitment process includes written competitive test having objective-type questions, mere qualification, even if it is higher, by itself would not be a controlling factor to make such person possessing higher qualification of better merit. At least one opportunity in such case of competition must be available to all such persons who possess minimum requisite qualification unless and until it can be shown that number of candidates applying is so large that holding of competitive examination in peculiar facts and circumstances of that particular case is not practically possible or probable or may cause extreme difficulty to the examining body. There can be no thumb rule in all these aspects.

9. A recruitment process founded on an open competition involving a written test would not justify shortlisting for the reason that persons, who possess minimum qualification, have right to compete with persons possessing higher qualification and can equally prove their merit so as to be selected and appointed over and above a person possessing higher qualification. We have seen such kind of example in various public services. For example recruitment held by Union Public Service for All India Services is open to all candidates. The selection process includes written test, interview etc. The minimum qualification is graduate. We have seen many times that simple graduate has excelled over candidates who are highly qualified.

10. Once a person possess requisite qualification, apparently there does not appear to be any just and valid reason to deprive him an opportunity of competition unless there are just, valid and rational grounds for justifying it otherwise. In the present case, learned Standing Counsel fairly stated that apparently there does not appear to be any justification for such shortlisting, moreso, in the light of recruitment process contemplated in the rules. The procedure for recruitment of Dark Room Assistant has been provided in Rule 15 of U.P.Chikitsa Evam Swasthya Vibhag Dark Room Sahayak (Arajpatrit) Sewa Niyamawali, 1998 (hereinafter referred to "Rules, 1998"), and it reads as under:

^^lh/kh HkrhZ dh izfdz;k&lsok esa MkdZ:e lgk;d ds in ij lh/kh HkrhZ le; le; ;Fkkla'kksf/kr m0iz0 ¼m0iz0 yksd lsok vk;ksx ds {ks= ds ckgj½ lewg ^^x** ds inksa ij lh/kh HkrhZ dh izfdz;k fu;ekoyh] 1998 ds micU/kksa ds vuqlkj dh tk;sxhA**

11. The aforesaid rules takes this Court to U.P. Procedure for Direct Recruitment for Group "C" Posts (Outside the purview of the Uttar Pradesh Public Service Commission) Rules, 1998. Therein, it is rule 5, which provides 'procedure'. It contemplates a written test and thereafter interview.

12. When a written test consisting of objective-type written examination in the subjects like General Hindi, General Knowledge and General Studies is contemplated in the rules, I do not appreciate as to how exclusion of those candidates, who are simply intermediate with science, which is a minimum qualification, would help the respondents in selecting best meritorious candidates. The merit is not directly proportionate to qualification possessed by individual though there may be a presumption that a person possessing higher qualification may be knowing more than the person possessing lower qualification but in the concept of general merit, mere possession of higher qualification cannot entitle such person to claim better than the person possessing lessor qualification.

13. Be that as it may, once there is no procedure for shortlisting under the rules and in the facts and circumstances of this Court, respondents are not able to justify such shortlisting, I do not find action of respondents to be just and valid in proceeding with recruitment by shortlisting the candidates confining it only to graduates.

14. The idea of short listing in the present case on the part of respondents is nothing but a kind of conferring absolute preference to the persons possessing higher qualification. Such preference, which excludes other candidates though lessor qualified but possessing minimum requisite qualification, in absence of any rationality, would be per se illegal.

15. In G.Jayalal Vs. Union of India & Ors., 2013 (7) SCC 150, the Court said that conceptual preference, fundamentally, would mean that all aspects, namely, merit, suitability, fitness, etc. being equal, preference is given, regard being had to some other higher qualifications or experience, etc.

16. In Secretary, A.P. Public Service Commission Vs. Y.V.V.R. Srinivasulu and others, 2003(5) SCC 341, the Court observed that whenever, a selection is to be made based on merit performance involving competition, the person possessing additional qualification cannot be provided preference to the exclusion of all others for the reason that in the context of all such competitive scheme of selection it would mean that other things being qualitatively and quantitatively equal, those with additional qualification may be preferred, that too only when rules provide possession of an additional qualification or factor of preference.

17. In the present case, shortlisting is not in the nature of screening of candidates by giving an opportunity to them to compete among themselves and thereafter to shortlist the candidates for further stage of recruitment but despite possession of minimum qualification, candidates like petitioner are being denied opportunity of participation i.e. equal opportunity of employment only on the ground that person possessing higher qualification are available and therefore, recruitment would be confined to those higher qualified candidates.

18. In the present case, post is that of Dark Room Assistant, a Group 'C' post. It is a little bit technical post but includes menial job also. Therefore, suitability and merit of candidate would depend upon various aspects. Mere higher qualification cannot be a sole governing factor. The exclusion of petitioner, therefore, from the field of competition in the name of shortlisting, in my view, is patently illegal and arbitrary.

19. In the result the writ petition is allowed. The respondents shall permit petitioner to participate in the selection and for this purpose shall issue admit card to the petitioner forthwith, and, in any case, within ten days from the date of receipt of a certified copy of this order before respondent no.3

20. The petitioner shall also be entitled to cost, which I quantify to Rs.2,000/-.

Order Date :- 10.10.2013

KA