RAKESH KUMAR TEWARI Vs. PUBLIC SERVICE COMMISSION U P
LAWS(ALL)-1982-8-44
HIGH COURT OF ALLAHABAD
Decided on August 03,1982

RAKESH KUMAR TEWARI Appellant
VERSUS
PUBLIC SERVICE COMMISSION U P Respondents

JUDGEMENT

SATISH Chandra, C. J., K. C. Agarwal, JJ. - (1.) This petition filed under Article 226 of the Constitution seeks Mandamus requiring the U. P. Public Service Commission, Allahabad, to issue the admit card to the petitioner for interview and to permit him to appear before the Interview Board. On 24th November, 1980, an advertisement was made by the U. P. Public Service Commission inviting applications for recruitment to the posts of Assistant Engineer in Public Works Department, U. P. The minimum qualification laid down for appointment was degree in Civil Engineering or. its equivalent from any recognized University/institution. In pursuance of the advertisement the petitioner applied for appointment on the said post of Assistant Engineer. He received a letter dated May 13, 1982, from the Public Service Commission informing him that his application had been rejected. The petitioner, thereupon, made enquiries and found that the Public Service Commission had taken an administrative decision to invite for interview only those candidates who had obtained 70% or more marks in Civil Engineering. The petitioner was not called for interview as he had not received 70% marks. This petition has been filed challenging the decision of the Public Service Commission to weed out the petitioner from being called for interview although he fulfilled the qualifications laid down in the advertisement. The submission of the learned counsel for the petitioner was that Article 16 (1) of the Constitution guarantees equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. The decision of the U, P. Public Service Commission to call for interview only those who had obtained 70%or more marks contravened Article 16 (1) of the Constitution. We do not find any merit in this submission. Article 16 does not mean that Government is not, like other employers, entitled fo pick and choose from amongst a number of candidates offering themselves for employment under the Government. Banarsidas v. State of U. P. (1956 S. C. R. 357 ). Article 16 does not debar reasonable classification of the employees in the matter of employment provided the classification is made with reference to the object being achieved. For selecting the best, the, U. P. Public Service Commission evolved a method to call only those who had obtained 70%marks or more in the Civil Engineering Examination. The marks obtained at an examination for the purpose of choosing the best can be a reasonable basis for classification. The decision to select from amongst those who secured 70% or more marks cannot be said to be based on irrelevant or extraneous consideration. We do not see any illegality in not inviting all the applicants who applied for appointment and restricting the same only to those who had secured 70% or more marks. This method of selection was likely to maintain the standard which may be advantageous for the service to which appointments had been advertised. In State of Haryana v. Subhash Chandra (A. I. R. 1973 S. C. 2216) an advertisement was made in the gazette to the effect that the Haryana Public Service Commission would hold an examination for recruitment of candidates to 15 vacancies in the judicial service. In response, a number of candidates appeared at the exami nation. The result of the competitive examination was declared on 6th April, 1971. It was a list of 40 candidates who obtained 45%or more marks in the examination. The State Government made only 7 appointments. There after, the respondents of the appeal, who ranked 8, 9 and 13 respectively, in he list, filed a writ petition. The writ petition was allowed on the ground that as long as requisite number of vacancies were unfulfilled and qualified candidates were available, those candidates who had a legal right to be selected were entitled to get a Mandamus against the State Government. In the view of the High Court, the State Government was not entitled to impose a new standard of 55% marks for selection. Upon the appeal being taken to the Supreme Court, the judgment of the High Court was reversed. The Supreme Court held: "rule 8 was a step in the preparation of a list of eligible candidates with a minimum qualification who may be considered for appointment. There is no constraint on the Government fixing a higher score of marks for the purpose of selection. " "there is thus no contravention of Rule 8 in fixing a minimum standard of a score of 55%marks for selection. . . . . . " In this view, the Supreme Court allowed the appeal and dismissed the writ. In this connection the Supreme Court also noted that in order that Mandamus could issue to compel an authority to do something, it must be shown that the Statute imposes a (legal duty on the authority and the aggrieved party has a legal right under the statute to enforce the performance, In Dr. Rai Shivendra Bahadur v. The Governing body of Nalanda College (A. I. R. 1962 S. C. 1210) the Supreme Court has taken the. view that Mandamus could not lie against the Government if there was no duty cast on it to enforce the right for the implementation of which writ had been filed. To us it appears that the advertisement made by the Public Service Commission was only a step in aid of making the selection by direct recruitment. For giving effect to the duty entrusted, the Public Service Commission could evolve a method which helped it in getting the best out of those who applied for appointment. For the said purpose, the Public Service Commission could fix a higher score of marks, and, therefore, no exception to the same can be taken. Counsel next contended that several other writ petitions involving the same points, as in the present one, had since been admitted, therefore, this petition should also be admitted. Counsel submitted that an Advocate while filing a writ petition also takes into account the admission of other cases on the same point and if the petition filed subsequently is not admitted, the same would give rise to conflicting decisions. For the submission made, counsel relied on a decision of the Supreme Court in Sushil Chandra Pandey v. Factory Manager, New Victoria Mills and another (1982 U. P. L. B. E. C. 211. ). The said judgment is quoted below: "heard learned counsel for the parties. As the High Court has already admitted the petition of the petitioner Bheem, being Civil Misc. Writ Petition No. 2286 of 1979, to hearing, on a parity of reasoning, the High Court should also have admitted the petition of the appellant instead of rejecting it in limine. In fact, the case of the appellant stands on equal, if not on better footing. We, therefore, set aside the order of the High Court rejecting the petition of the appellant in limine and direct the High Court to admit the petition of the appellant to hearing and hear the same along with Civil Misc. Writ Petition No. 2286 of 1979 at an early date. " Before dealing with the decision relied upon by the petitioner's learned counsel, we consider it appropriate to point out that there is no such practice in this High Court as was canvassed before us in this petition. Every writ petition has to be decided on its own merits. Chapter XXII Rule 2 of Rules of the Court lays down that if the Court does not find sufficient reason to admit an application, it may reject it. Under this rule, therefore, the High Court is entitled to reject a petition under Article 22. 6 (other than for Habeas Corpus) in limine without issuing notice to the respondent if the Court rinds no sufficient reason to admit. Even in the absence of such a specific rule, it is competent for the High Court to dismiss an application under Article 226 of the Constitution summarily where no prima facie case is shown. The Court, is, therefore, entitled to consider whether a 'petition raises any prima facie or arguable question for decision. Establishment of a prima facie case is the essential preclude to the admission of a writ. Admission is not a matter of course. The admission of a case does not result in any decision being arrived at. Hence, this case would not act as a precedent. The argument of conflicting decisions coming into existence would also not be available in such a case as a conflict is said to arise when there are two decided cases, one against the other on the same point. So far as the advice on which a counsel files a writ petition is concerned, it may be pointed out that a Court decides cases according to law and not on the basis of other people's predictions and prophesies about what he would do. A Judge considers the statute applicable and precedent cited and if he finds that there are no merit, in the points raised, he would be fully justified in rejecting the subsequent writ petition. It is useless to deplore these occurrences because they will continue as long as Advocates, judgments, litigants remain human. In Ekknath Shankarrao Mukkawar v. State of Maharashtra (A. I. R. 1977, S. C. 1177, para 25) the Supreme Court was called upon to consider the question whether the effect of a decision given by a Single Judge is washed off by the mere admission of appeal against the same by the Supreme Court. The Supreme Court held that another Judge of the same High Court as against which Court the appeal has been preferred in the Supreme Court would be bound by the earlier decision, and that the pendency of the appeal in the Supreme Court would be immaterial. Coming to Sushil Chandra Pandey's case, we find that the said case is distinguishable and does not support the petitioner's counsel. As the appeal before the Supreme Court went from a decision of this Court, we had the advantage of looking into the relevant records. It appears that two employees Sushil Chandra and Bheem working the same factory, i. e. , New Victoria Mills, Kanpur, were dismissed on the same charge of adopting fraudulent means in cheating the Company. Two references made for adjudication to the Labor Courts were decided against the workmen. Writ Petition No. 295 of 1980 was filed by Sushil Chandra Pandey's against the award given in his case while Writ Petition No. 2286 of 1979 was filed by Bheem. Sushil Chandra Pandey's writ was admitted, whereas that of Bheem was summarily dismissed. When the matter was taken by Bheem to the Supreme Court, the Supreme Court thought proper that the two matters being connected with each other should have been admitted and decided together. This case is not an authority for the proposition advanced before us. This decision turned on its peculiar facts and cannot be treated as law laying down that whenever one petition has been admitted; all other subsequent writ petition filed on the points raised in the first writ petition must necessarily be admitted as of course. For the reasons given above, the writ petition is dismissed summarily. .;


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