- (1.) K. D. Shahi, J. The petitioner by this writ petition has prayed for a writ, order or direction in the nature of man damus commanding the respondents to declare the petitioner as successful can didate for the post of Sub- Inspector (D. R.) in Civil Police.
(2.) THE brief facts of the case are that the petitioner, Ramagya Chaubey was working as a constable in the police department from 1982. In the year 1991, like earlier years, there was an advertise ment for direct recruitment of Sub-Inspec tors. THE application forms and the book let attached with the application forms were sold for Rs. 10. THE candidates had to apply on application forms and had to appear in the examination on the terms and conditions contained in the booklet. THE terms and conditions and requisite qualifications etc. were contained in the said booklet, copies of which are annexed as Annexure 1 to this writ petition. THE petitioner applied for the said post. His roll number was 24520. THE petitioner ap peared in the pre-examination and was declared successful. His physical examina tion took place in the first week of January, 1993 and he was declared successful. THEreafter, main examination took place on 8-1-1993 and 9-1-1993. THE subjects in the examination were essay, general studies Part-I, general studies Part-11 and psychology and each paper contained 100 marks. This examination took place in terms and conditions of the brochure An nexure 1 to the writ petition. Sub sequently, the result of the main examina tion was declared on 19 -. 7-1993 and the petitioner was declared failed. On enquiry he was informed that although he had ob tained more than 76 per cent marks but since he had obtained less than 40 per cent marks in Hindi essay, therefore, he was declared unsuccessful. Being aggrieved, the petitioner filed the present writ peti tion and by the orders of this Court dated 28-9-1993 and 16-12-1993, the petitioner was allowed to appear in the interview. It is alleged that in the interview, the petitioner was neglected because he had obtained an order from the Hon'ble High Court. THE petitioner has alleged that his aggregate marks were more than that of other selected candidates. He could not have been declared successful because he had obtained marks less than 40 per cent in one paper. It is contended that there was no such bar in the advertisement or in the terms and conditions of the examination and the respondents imposed this condi tion out of their own will. The respondents filed counter-af fidavit and their main contention was that in view of the Government Notification dated 10-3-1986, it was obligatory on the part of the candidate to have obtained minimum 40 per cent marks in each sub ject for appearing in the interview. The controversy in the petition is very limited i. e. whether in view of the terms and conditions, it was obligatory on the part of the petitioner to get 40 per cent marks in each and every subject or be could have been declared successful on the basis of aggregate marks obtained by him.
(3.) THE main argument of the learned Counsel for the respondents was on the basis of the Notification of 1986, a copy of notification of 1986 dated 10-7-1986 is also on record. In this notification there was also a reference of notifications dated 6-6-1977, 25-2-1978 and 30-4-1979. THErefore, it is clear that while reading the notification dated 10-7-1986, these earlier notifications were also to be read. This notification of 1986 was squarely for train ing in the year 1987 and no further. In the notification of 1986 there is a specific provision in para 13 for written examina tion and it was made obligatory that the candidate should get 40 per cent minimum marks in each of the papers and his ag gregate should not be less than 50 per cent. I have gone through the notifica tion of 1991 and I find that there is nothing in this notification regarding any earlier notifications. It is, therefore, clear that this notification of 1991 is to be read inde pendently and not in continuation with earlier notifications. On a comparison of the terms and conditions of the examina tion, it is clear that the terms and condi tions have been totally changed. In the notification of 1986 a separate provision has been made for physical examination and there is also a specific provisions that in the physical examination also one had to get 40 per cent marks and, therefore, the written examination was to take place, but in the notification of 1991, there was noth ing that in the physical examination the candidate had to get 40 per cent marks in each paper. In the 1986 notification, physi cal examination is mentioned in para 12 and written examination in para 13 but in the notification of 1991, both physical and written examinations have been men tioned in one para i. e. para 12. There is a provision of physical examination of 100 marks. There is no mention of qualifying marks in the notification of 1991. Then there is examination of essay of 100 marks, general knowledge 1 of 100 marks, general knowledge II of 100 marks, psychology 100 marks, but there is nothing in the notifica tion of 1991 regarding any minimum marks, although in the notification of 1986, it is specifically mentioned:- @hindi In absence of any such condition in the notification of 1991, it can be safely presumed that this condition was waived and, therefore, only on the basis of general merit list, the candidates were to be called for interview. 1. It is specifically contended by the learned Counsel for the petitioner and not refuted by the respondents' Counsel that the general merit of the petitioner was higher than that of the other candidates who were declared successful. It is further clear that the petitioner could not have been declared unsuccessful merely be cause he did not get 40 percent minimum marks in one paper, i. e. Hindi essay. A similar controversy arose in the case of Dr. Vinay Rampal v. State of Jammu and Kash mir, reported in 1984 UPLBEC p. 137, wherein the apex Court has held that if the criteria for admission in the post graduate course for M. D. degree has been fixed in the advertisement and there was con tradiction in the minimum qualifications set out in the advertisement for admission and the Government Order dated March 23, 1979 and where the petitioner was eligible for admission if qualifications set out in the advertisement were made the basis of admission, the petitioner cannot be denied admission on the basis of G. O. dated March 23, 1979. It was further held that eligibility for admission has to be judged on the basis of qualifications as set out in the advertisement. The above said decision squarely applied in the present case. The petitioner appeared in the ex amination in pursuance of the advertise ment of 1 991 and there was no reference of the notification of 1986. There was no mention in the advertisement of 1991 that the candidate should necessarily get 40 per cent marks in each and every paper. There fore, the notification of 1986 shall not govern this case. 8. The petitioner has appeared in the interview by virtue of the orders of this Court. Earlier this petition was dismissed summarily by order dated 1-5-1997 on the ground that the case is covered by the judgment of Hon'ble R. B. Mehrotra, J. in writ petition No. 29103 of 1993 decided on 6-10-1993. The judgment and order dated 1-5-1997 has been set aside in special ap peal No. 432 of 1997, Ramagya Chaubey v. State of U. P. with a finding that the decision in writ petition No. 29103 of 1993 was on a different matter and, therefore, this writ petition was directed to be heard afresh on merits. 9. After examination of the back grounds, facts and circumstances of the case, it is apparent that the petitioner could not have been declared unsuccessful merely because he did not get minimum marks of 40 per cent in Hindi paper. 10. This Court cannot declare the petitioner as successful. The interview has already been taken by the respondents. They should declare the result of the petitioner. Therefore, it is hereby specifi cally directed that the result of the petitioner shall be declared by the respon dents forthwith in the light of the above observations made in the body of this judg ment and it is hereby specifically provided that the petitioner shall not be declared unsuccessful merely because he has ob tained less than 40 per cent marks in one paper, i. e. Hindi, if he has been found otherwise fit and successful. The petitioner shall also get a sum of Rs. 1,000 (One thousand) as costs from the respon dents. 11. With the above observations and directions, the petition is finally disposed of. Petition disposed of. .;