Neeraj Sahu And Another vs Secretary And Others

In this petition, the petitioners have prayed for following reliefs:-

(i) It is prayed that this Hon'ble Court may kindly be pleased to issue a writ/writs, order/orders, direction/directions in the nature of certiorari, mandamus and prohibition to

(ii) To the respondents directing them to prepared separate merit list in all the subject and declare results separately.

(iii) Direct the respondents reserve 33% for each category.

(iiv) Any other relief, relief's as deem fit looking to the facts and circumstances of the case.

The spinal issue needs determination in this case is whether the impugned selection can be interfered with because respondent-Public Service Commission (PSC) has not applied the "scaling method" for assessing the merits of the candidates and whether at the instance of petitioners who participated in the recruitment process without raising any objection and failed, the merit list can be directed to be redrawn by applying "scaling method".

The admitted facts between the parties are that the petitioners along with the other candidates submitted their candidature for the post of Scientific Officer pursuant to the advertisement dated 03.06.2013 (Annexure-P/1). They participated in the selection, but their names could not find place in the selection list. The petitioners filed this petition by contending that the "scheme of examination" (scheme) (at page No.14) makes it clear that for the post of Scientific Officer out of five optional subjects, the candidate could have opted for one of such subject. Accordingly, the candidates, who participated the selection performed in the related subject based on their option in relation to the subject. Since, post of Scientific Officer was to be filled up from the candidates who have written examination in different subjects, the respondent should have applied the method of scaling/normalization as held by the Supreme Court, Chhattisgarh High Court and other Courts.

The petitioner No.2 argued the matter and contended that PSC applied the scaling method in other examinations conducted by it despite the fact that in main advertisement of such examination also there was no such clause inserted in the advertisement that scaling method will be adopted. Reliance is placed on the documents filed with the rejoinder. It is pointed out that one such advertisement is dated 30.12.2014 (Annexure-P6) issued in relation to State Forest Services Examination, 2014. In the main advertisement, it was mentioned that selection for the post in question will be held as per merit obtained in written examination and interview. Thereafter, on 20.11.2015 a 'corrigendum' was issued wherein it was clearly mentioned that the merits of candidates will be assessed by applying the scaling method.

The petitioner No.2 further urged that there is no justification in not applying the same scaling method in the present selection when admittedly the performance/merit of candidate was required to be assessed on the basis of different optional subjects. It is also argued that in the relevant recruitment rules of State Government pursuant to which examination of Forest Services was conducted in the year of 2014, there was no provision for applying the scaling method. Since, it was necessary and was a scientific method, it was rightly applied in Forest Services. It is further urged that in view of MP Civil Services (general condition of services) Rules, 1961, the rules applicable to the State Government employees like Conduct Rules, CCA Rules and other Rules should be made applicable to all the Government employees irrespective of posts being held by them. In support of this argument reliance is placed on the judgment of Chhattisgarh High Court in the case of Ku. Varsha Dongre Vs. State of Chhattisgarh and anothers.

Per contra, Shri Anshul Tiwari, learned counsel for the PSC urged that in the advertisement (Annexure P/1) pursuant to which petitioners submitted their candidate, it was made clear regarding the method of selection. The scheme of examination was part of the advertisement, which is evident from a bare perusal of Page 14. There was no whisper about applying the 'scaling method' in the instant selection. The petitioners with clear understanding and knowledge about the terms and conditions of selection participated in the selection but failed. After becoming unsuccessful, they are estopped to assail the selection process or the appointments arising thereto. Reliance is placed on (2017) 4 SCC 357 (Ashok Kumar & Another vs. State of Bihar & Ors.). Apart from this legal objection, Shri Tiwari submits that in the relevant recruitment rules for the post of Scientific Officer, there is no provision to adopt 'scaling method'. The selection was finalized in the year 2015. The selected candidates have already been appointed. It is the discretion of PSC to apply the 'scaling method' as per requirement of the particular selection. No legal or enforceable right of the petitioner is infringed. The petitioners cannot claim parity with the examination scheme of another examination.

No other point is pressed by the parties.

I have heard the parties at length and perused the record.

In the advertisement dated 03.06.2013 (Annexure-P/1), it was made clear that the examination will be conducted as per the examination scheme appended to the said advertisement. It was clear to the candidates that scaling method has not been adopted and selection will be conducted as per the examination scheme. With the eyes open, the petitioners participated in the selection and could not crack the examination. Indisputably, they did not raise any objection regarding non-following of "scaling method" at any stage of examination. It is similarly not in dispute that the result of selection was published in 2015 and selected candidates have already been appointed. Thus, the first question is : whether interference can be made when petitioners participated in the selection without any demur and after becoming unsuccessful they have raised eyebrows on the method of selection i.e. for not adopting the "scaling method".

The point is no more res integra. The Apex Court in 2010 (12) SCC 576 (Manish Kumar Shahi Vs. State of Bihar) held that the candidates after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, they are not entitled to challenge the criteria or process of selection. This judgment is passed after considering a catena of judgment of Supreme Court on this point. Similarly, in 2013 (11) SCC 309 (Ramesh Chandra Shah and others Vs. Anil Joshi and others), the Apex Court opined as under:

"17. Those who were desirous of competing for the post of Physiotherapist, which is a Group 'C' post in the State of Uttarakhand must have, after reading the advertisement, become aware of the fact that by virtue of Office Memorandum dated 3.8.2010, the Board has been designated as the recruiting agency and the selection will be made in accordance with the provisions of the General Rules. They appeared in the written test knowing that they will have to pass the examination enumerated in para 11 of the advertisement. If they had cleared the test, the private respondents would not have raised any objection to the selection procedure or the methodology adopted by the Board. They made a grievance only after they found that their names do not figure in the list of successful candidates. In other words, they took a chance to be selected in the test conducted by the Board on the basis of the advertisement issued in November 2011. This conduct of the private respondents clearly disentitles them from seeking relief under Article 226 of the Constitution. To put it differently, by having appeared in the written test and taken a chance to be declared successful, the private respondents will be deemed to have waived their right to challenge the advertisement and the procedure of selection.

It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome."

[Emphasis Supplied]

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".

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.

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".

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.

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.