Namrata Yadav vs The State Of Madhya Pradesh
2021 Latest Caselaw 6845 MP

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        THE HIGH COURT OF MADHYA PRADESH
                      WP No. 8784/2018
                        Namrata Yadav
                              vs.
                State of Madhya Pradesh & Anr.



Date of Order             26/10/2021

Bench Constituted         Single Bench

Order delivered by        Hon'ble Shri Justice Sanjay Dwivedi

Whether approved      for No
reporting

Name of     counsel   for Shri Vipin Yadav, counsel for the
parties                   petitioner.
                          Shri Devendra Gangrade, Panel Lawyer
                          for the respondent No.1-State.
                          Shri Aditya Pachori, counsel for the
                          respondent-Public Service Commission.


Reserved on: 16/09/2021
Delivered on: 26/10/2021

                               ORDER

Petitioner has filed this petition under Article 226 of the

Constitution of India seeking the following relief:

"i. To issue a writ in the nature of certiorari, quashing the orders dated 6/4/2018 (Annexure P/6 and P/7).

ii. To issue a writ in the nature of mandamus, restraining the respondents to hold interview on the basis of order dated 06.04.2018 and appoint the candidates on the post of Archaeologist and Curator.

iii. That respondents may kindly be directed to fill the post of Archaeologist and Curator strictly as per Rules of 1998.

iv. To issue a writ in the nature of certiorari, entire selection process may kindly be quashed as contrary to recruitment rules. v. Any other writ or direction as the Hon'ble Court may deems fit in the circumstances of the case."

The matter pertains to selection on the posts of

Archaeologist and Curator in the Department of Culture of the

State of Madhya Pradesh.

2. The petitioner is challenging Annexures P/6 and P/7

whereby the list of candidates, who have been called for

interview, has been published. The petitioner is challenging the

selection process mainly on the ground that the method of

selection, which has been adopted by the respondents is

contrary to method of selection provided under the

Recruitment Rules known as Madhya Pradesh Puratatva,

Abhilekhagar (Rajpatrit) Sewa Bharti Niyam, 1998 (For short

'Rules of 1998')

3. Learned counsel for the petitioner submits that the

petitioner has requisite essential qualification for the post of

Archaeologist and also for the post of Curator as prescribed

under the Rules of 1998. He submits that Online applications

were invited for the said posts and as per the advertisement,

the selection was totally based upon the interview on the basis

of marks obtained on the basis of essential qualification. He

submits that since the petitioner possessed only essential

qualification and did not possess the desired qualification, she

was not called for the interview, which is contrary to Rules of

1998.

4. Learned counsel for the petitioner has challenged the

action of the respondents mainly on the ground that Rule 11 of

the Rules of 1998 very categorically provides that if the

selection for the post has to be made through direct

recruitment, the same cannot be done without conducting a

written examination as the Rule 6 of the Rules of 1998 clearly

provides as to in what manner the recruitment has to be made.

He submits that Rule 6 of Rules of 1998 very clearly prescribes

method of recruitment by direct recruitment by

selection/competitive examination, by promotion etc., but as

per the advertisement, selection on the posts has been made

only on the basis of interview, that too on the basis of marks

obtained in the prescribed qualification.

5. Learned counsel for the petitioner submits that the

selection has been made on Class II Gazetted posts and that

cannot be done only through interview as the said process of

selection is not approved and also not permissible under the

law. He submits that the selection should have been made on

the basis of competitive examination and without there being

any such examination, the selection is do hors the rules and

as such the same is liable to be set aside. He submits that the

selection has been made as per the conditions contained in the

advertisement, which is not acceptable under the law as the

said conditions are contrary to the procedure prescribed under

the Rules and as per the settled principles of law,

advertisement cannot have any overriding effect over the

statutory provisions. He further submits that out of 03 posts of

Archaeologist, only 08 candidates were called for interview

whereas total 20 candidates should have been called. Likewise,

out of 06 posts of Curator, only 07 persons were called whereas

36 (i.e. six times of vacancy) candidates should have been

called. Therefore, the selection process is apparently defective

and tainted with mala fide and favouritism and, therefore, the

same is liable to be set aside. To substantiate his submission,

learned counsel has relied upon the decisions reported in

(2018) 3 SCC 55-Ashish Kumar Vs. State of Uttar Pradesh,

(2015) 2 SCC 170-State of Punjab vs. Anita and others,

(2014) 6 SCC 644-Joginder Pal and others Vs. State of

Punjab andothers, (2014) 3 SCC 767-Ganpat Singh

Gangaram Singh Rajput vs. Gulbarga University and

(2017) (3) SCC 603-State of West Bengal v. Tuhin Sultan

Mallick.

6. The respondents have filed their reply taking stand

therein that the petition is not maintainable because the

petitioner has no locus to challenge the selection as she was

not an eligible candidate as she was not having essential

qualification for the post of Archaeological Officer and Curator

and as such she was not allowed to participate in the selection,

therefore, challenging the selection process without any locus

by filing writ petition makes the petition untenable and

deserves its dismissal. They submit that even from Rule 6 of

the Rules of 1998 it is clear that the selection can be done by

direct recruitment by selection/competitive examination. They

further submit that the respondent No.2 has made Rules of

Procedure known as "Madhya Pradesh Public Service

Commission Rules of Procedure" (for short 'Rules of Procedure')

and adopted by the State of Madhya Pradesh, which came into

force with effect from 01.01.1995 in which method of

recruitment has been provided. He submits that Rule 3 of the

Rules of Procedure clearly provides that where the Recruitment

Rules provides for direct recruitment for post or service by

selection (through interview only), the Commission shall hold

interview for the recruitment of the post of service". As such,

there is nothing illegal in the procedure of selection adopted by

the respondents as shown in the advertisement.

7. Considering the rival contention of the learned counsel for

the parties and perusal of record, undisputably the petitioner

did not have essential and desirable qualification because the

respondent No.2 in its reply, which is in the shape of

preliminary submission, has very categorically submitted that

as per Clause 6(3) of the advertisement the desirable

qualification for the post of Archaeologist and Curator is Post

Graduation Diploma in Museology coupled with Research Work

in Ancient Indian History, Archaeology or Culture subjects and

the candidate is also required to have three years experience in

the field of museum and archaeology, but the petitioner, as per

her own showing, is having Post Graduate Degree in Ancient

Indian History, Culture and Archaeology and claimed in para-8

of her petition that she has higher qualification than required

qualification. Meaning thereby, she is not having essential

qualification of Post Graduate Diploma in Archaeology coupled

with Research work in Indian Ancient History, Archaeology or

Cultural subject and as such the application of the petitioner

was rightly rejected.

8. On going through the record and considering the

submission made by the learned counsel for the parties, I am

satisfied with the submission made by the learned counsel for

the respondents that when the petitioner did not have the

requisite qualification and her candidature was rejected only

on the said ground and was not allowed to participate in the

selection process, she had no right to challenge the process of

selection saying that the same is contrary to the Rules. It is

also apt to mention here that petitioner possessed higher

qualification or not, is a domain of expert body which this

Court is admittedly not, although the respondent-PSC being

an expert body found that petitioner does not have requisite

qualification. Thus, petitioner has no locus to challenge the

manner of selection. Even otherwise, it is clear that the Rules

of Procedure are applicable to respondent No. 2, which is an

agency for conducting the selection in pursuance to the

direction issued by the State of Madhya Pradesh from time to

time. Rule 3 of the Rules of Procedure deals with the method of

recruitment, which reads as under:

"3. METHOD OF RECRUITMENT (1) Where the Recruitment Rules Provide for direct recruitment for a post or service only by competitive examination, the Commission shall hold a competitive examination and interview for recruitment of that post or service.

(2) Where the Recruitment Rules provide for direct recruitment for post or service by selection (through interview only) the Commission shall hold interview for the recruitment of that post or service.

(3) Where the Recruitment Rules provide for direct recruitment for a post or service either by competitive examination or by selection (through interview only) unless the Commission otherwise decides, recruitment shall be made by written competitive examination and interview."

9. I have also gone through the judgments relied upon by

the learned counsel for the petitioner, however, the said

judgments are not applicable in the facts and circumstances of

the present case because the Supreme Court has not

considered the Rules in the said cases like the Rules framed in

the present case and relied upon by the respondents wherein

method of recruitment is prescribed under which the

respondent No. 2 has been authorized to recruit the candidate

through interview if posts are required to be filled up through

direct recruitment for the post or service.

10. On the contrary, the respondents have relied upon the

order passed by this Court on 19.11.2019 in WP No.

325/2015-Neeraj Sahu & another vs. Secretary and others

in which the Court has observed as under:-

11. Same is the principle laid down in the case of Ashok Kumar (supra) cited by Shri Anshul Tiwari. In view of this settled principle of law, I am constraint to hold that the petitioners cannot be

permitted to assail the selection process for not following the "scaling method".

12. The petitioners have placed heavy reliance on the judgment of High Court of Chhattisgarh in the case of Kumar Varsha Dongre (supra). A careful reading of this judgment shows that non-following the scaling system in a proper manner was one of the grounds on which the selection process was called in question. The High Court interfered because allegations of corruption in the selection process were also established. Para 88 of this judgment is self-explanatory. The Apex Court in 2016 (2) SCC 495 (Sunil Kumar and others Vs. Bihar Public Service Commission and others) considered its previous judgments on the aspect of scaling namely 2007 (3) SCC 720 (Sanjay Singh Vs. U.P. Public Service Commission) and 2003 (12) SCC 701 (U.P. Public Service Commission Vs. Subhash Chandra Dixit). In no uncertain terms it was held that there was no plea of mala fides against the Public Service Commission. The criteria adopted by the Public Service Commission was uniformly applied to all candidates without any discrimination. The Public Service Commission is the expert body which should be given sufficient liberty and flexibility to modulate its procedure of assessing the answer scripts. Directions issued in Sanjay Singh (supra) is not binding precedent to always adopt the "scaling method" in case of multi disciplinary examination like present one. It was poignantly held that the methodology adopted by the Public Service Commission cannot be interfered with on the ground that in a multi disciplinary examination, the Public Service Commission did not adopt the system of scaling.

13. It is further held that the judgment of Sanjay Singh (supra) did not decide that where the papers are common the system of moderation must be applied and to an examination where "the papers/subjects are different, scaling is the only available option".

14. In view of the judgment of Sunil Kumar (supra), it cannot be said that the impugned recruitment process is vitiated because of non- following the selection process. The petitioners have not alleged that selection conducted was

malicious in nature. For these cumulative reasons, no case for interference is made out.

15. The Public Service Commission is best suited to decide the method of selection and it will be open to the Public Service Commission to adopt the best and scientific method of selection of candidates. Petition is dismissed.

11. Thus, in my opinion, no illegality has been committed by

the respondents. The petition being without any substance

is hereby dismissed.

(Sanjay Dwivedi) Judge

Raghvendra

Digitally signed by

RAGHVE RAGHVENDRA SHARAN SHUKLA DN: c=IN, o=HIGH COURT OF

NDRA MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482002, st=Madhya Pradesh,

SHARAN 2.5.4.20=0b4ca33e82678112c8 b8779ae1f77dd53c66b97e56d 85ed6193d6ff614e6a268, cn=RAGHVENDRA SHARAN

SHUKLA SHUKLA Date: 2021.10.27 10:58:46 +05'30'