- (1.) By way of this appeal, the appellants have assailed the judgment and order of the learned Single Judge whereby the learned Single Judge has dismissed the petition.
(2.) Counsel for the appellants has contended that the posts which are created are statutory encadered posts under Rule 258 read with 258(3) and 258 (9) of the Rules of 1996 and he contended that the same was amended but on account of guidelines which have been issued by the State Government, the appellants may not be selected as arbitrary power has been conferred to the local Gram Panchayat and also taken us to Rule 259 of the Rules of 1996 where the manner of recruitment is required to be adopted. He further contended that the learned Single Judge has seriously committed an error in following the judgment in the case of Surendra Kumar Gurjar and Ors. v. State of Rajasthan and Ors. decided on 3rd April, 2017 which reads as under :- "(6) Counsel for the petitioners have laid much emphasis on the criteria of selection and submit that interview based selections could not have been made. In support thereof, the Counsel for the petitioners relies upon judgment passed by the Supreme Court in the case of Minor A. Peeriakaruppan v. State of Tamil Nadu and Ors., 1971 (1) SCC 38. He also relies on the directions made by this Court passed in Surendra Kumar Gurjar and Ors. v. State of Rajasthan and Ors. decided on 03.04.2017 wherein clause (c) of directions which reads as under :- "(c) The State Government is further directed to make appointments on the posts created under various schemes sponsored by State or by the Centre on contract basis or otherwise only by conducting selection through open advertisement and after inviting applications and conducting written examinations and selecting persons on merit basis by a transparent method. For the said purpose, the State Government may lay down procedure and a recruiting agency either department wise or a Central nodal agency may be created for the said purpose keeping in view the provisions laid down for conducting public examinations. However, there shall be no interviews method followed in order to avoid any room for arbitrariness or pick and choose method and subsequent litigation;"
(3.) He further contended that in view of the decision of Supreme Court in case of D.V. Bakshi and Ors. v. Union of India and Ors. (1993) 3 SCC 663 in para 7 which reads as under :- "7. The submission that the provision for clearing the oral test with at least 50 per cent marks is susceptible to misuse, namely, to eliminate some and to accommodate others needs closer scrutiny. The submission is general in nature and would be true in all such cases where passing of an oral test is a 'must' to qualify for entry. The oral test being a highly subjective one such an allegation may be easy to make. But as pointed out earlier in certain situations a written examination alone may not suffice to assess the overall qualities of an individual and an oral test becomes necessary to evaluate his performance from certain other angles to make an integrated assessment of the candidate. As observed in Lila Dhar's, case (supra) a written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If an oral test is, therefore, a 'must' as in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the element of subjectivity will be largely checked and the marks assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate. In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favouritism, the same can be checked with reference to the record so maintained. Since the oral test is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a 'must' or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records or the oral test. But if the allegation is supported by some dependable proof, the Court will satisfy itself whether or not the charge is well-founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be. In the present case, however, the allegation is of a general nature and is not supported by even light proof to infer, even prima facie, that the result of the oral test was tainted because of bias. We, therefore, do not see any merit in the contention raised by the petitioners." 3.1. In case of J.S. Yadav v. State of Uttar Pradesh and Anr. reported in (2011) 6 SCC 570 in para 12 it has been observed as under:- "12. The aforesaid submission seems to be very attractive but has no substance for the reason that a cadre generally denotes a strength of a service or a part of service sanctioned as a separate unit. It also includes sanctioned strength with reference to grades in a particular service. Cadre may also include temporary, supernumerary and shadow posts created in different grades. The expression "cadre", "posts" and "service" cannot be equated with each other. (See: Union of India v. Pushpa Rani and Ors. (2008) 9 SCC 242; and State of Karnataka and Ors. v. K. Govindappa and Anr. AIR 2009 SC 618. There is no prohibition in law to have two or more separate grades in the same cadre based on an intelligent differential. Admittedly, the post of District Judge and Additional District Judge in the State of U.P. is neither inter-changeable nor inter-transferable. The aforesaid Rules merely provide for an integrated cadre for the aforesaid posts. Thus, the submission is liable to be rejected being preposterous. 3.2. In another decision in case of Minor A. Peeriakaruppan Sobha Joseph v. State of Tamil Nadu and Ors., (1971) 1 SCC 38 wherein in para 16 and 17 it has been held as under :- 16. It was next urged that no objective criterion was fixed for interview. We are unable to accept this contention as well. The selectors were asked to interview candidates on the basis of the five criteria prescribed to which we have made reference earlier. Those tests are sufficiently objective in character. Similar tests were held to be objective by this Court in Chitralekha's case. It cannot be denied that extra curricular activities like sports, N.C.C., special services, general physical condition and endurance and general ability are objective tests. The aptitude referred to in the rule, in our opinion, is aptitude for medical profession. It was next contended that separate marks had not been allotted for each one of the tests enumerated in the rule. A total of 75 interview marks were placed at the disposal of the selection committee and from out of those the committee could award marks according to its sweet will and pleasure. Such a power it was said is an arbitrary power. We were told that the entire 75 marks could have been given to a candidate even if he satisfied only one out of the five criterion prescribed. It is true that the rule did not prescribe separate marks for separate heads. But that in our opinion did not permit the selection committee to allot marks as it pleased. Each one of the tests prescribed had its own importance. As observed at footnote 20 at p. 485 of American Jurisprudence Vol. 15 that the interviewers need not record precise questions and answers when oral tests are used to appraise personality traits; it is sufficient if the examiner's findings are recorded on the appraisal sheet according to the personal qualifications itemised for measure. A contention similar to those advanced by the petitioners came up for consideration before the Mysore High Court in D.G. Viswanath v. Chief Secretary of Mysore and Ors. AIR 1964 Mysore 132. Therein the court observed thus : It is true that Annexure IV does not specifically mention the marks allotted for each head. But from that circumstance it cannot be held that the Government had conferred an unguided power on the Committees. In the absence of specific allocation of marks for each head, it must be presumed that the Government considered that each of the heads mentioned in Annexure IV as being equal in importance to any other. In other words, we have to infer that the intention of the Government was that each one of those heads should carry ?th of the "Interview" marks. 17. We may note that the committee had not divided the interview marks under Various heads nor were the marks given on itemised basis. The marks list produced before us shows that the marks were given in a lump. This is clearly illegal." ;