T.V.R. Tatachari, J.
(1) The petitioner, Praphul Ranjan Singh Brar, who is serving as Deputy Superintendent of Police in Delhi and Himachal Pradesh Police Service (hereinafter referred to as D. & H.P. Police Service) Class Ii, and at present in Delhi Armed Police (hereinafter referred to as D.A.P.), has filed this writ petition praying that-
(1)the order of appointment of Shri P. J. S. Kumar (respondent No. 4) in the Indian Police Service (hereinafter referred to as Indian Police Service .) may be quashed; and (2) the Ministry of Home Affairs, Government of India (respondent No. 2) may be directed to consider the appointment of the petitioner in the Indian Police Service (I.P.S.).
The respondents in the writ petition are: (1) Union Public Service Commission; (2) Union of India through Secretary, Ministry of Home Affairs, Government of India; (3) P. V. Rajagopal; and (4) Paramjit Singh Kumar.
(2) The Union Public Service Commission are responsible under Article 320(1) of the Constitution of India for conducting examinations for appointment to the services of the Union. In 1964, the said Service Commission held a combined competitive examination for recruitment to various categories of services, some of them being the Indian Administrative Service, the Indian Foreign Service, the Indian Police Service, and the Delhi and Himachal Pradesh Police Service Class II. The petitioner appeared in the said examination' for recruitment to the Indian Police Service . and D.&H.P.; Police Service Class Ii, and his roll number was 2159. The Service Commission published a list in May, 1965 (Annexure II) in the form of a Press Note containing the names of the successful candidates. The petitioner and five others secured the same aggregate marks, viz. 495 marks and their names were arranged by the Service Commission in inter se order of merit as follows :-
Seriall No. Name Roll No ____________________________________________________________________________ 189 Parankusam Venkata Rajagopal 2794 190 Pararn Jit Singh Kumar 296 191 N. Gunasekaran 2740 192 Krishan Swarup 165 193 Nandanadan Mishra 1210 194 Praphul Ranjan Singh Brar 2159 ____________________________________________________________________________
The list included certain candidates for appointment to the Indian Administrative Service and Indian Foreign Service, with whom we are not concerned in this writ petition. It was slated in the Press Note that the number of vacancies expected to be filled was 87 for the Indian Police Service . and the D. &, H.P. Police Service Class II. A copy of letter No. 20/3/64-AIS(I), dated 10th May, 1965, from the Government of India, Ministry of Home Affairs to the Secretary, Union Public Service Commission, Annexure I to the counter-affidavit of Shri A. N. Batabyal, Deputy Secretary (Services), Government of India, Ministry of Home Affairs, filed on behalf of respondent No. 2, shows the break up of the expected vacancies as under:-
Vacancies ___________________________ General Reserved for Service _______________ S.C. S.T. ___________________________________________________________________________ 1 2 3 4 ___________________________________________________________________________ Indian Police Service .. .. .. .. 61 9 3 Central Sectt. Service Section Officers Grade, Class II. .. .. .. .. 4 3 1 Delhi-Himachal Pradesh Civil Service, Class II.. 8 3 1 Delhi-Himachal Pradesh Police Service Class II. .. .. .. .. .. 11 1 2 ____________________________________________________________________________
Thus, the number of vacancies in the Indian Police Service including those reserved for candidates of scheduled castes and scheduled tribes was 73, and the number of vacancies in the D.&H.P.; Police Service Class Ii was 14 including those reserved for candidates of scheduled castes and scheduled tribes making up the total of 87 vacancies. But, it was further stated in the said letter that the case of a candidate who was recommended for appointment to the Indian Police Service on the results of the combined competitive examination, 1963, and who had preferred an appeal against the finding of the Medical Board that he was unfit for appointment to that service, was under consideration, and that in case he was found fit for appointment to the the Indian Police Service by the appellate Board, a vacancy in the Indian Police Service would be required to be filled by him, and, thereforee, in that contingency the total number of vacancies in the Indian Police Service would be 74 (composition-General 62; S.C. 9; and S.T. 3) and not 73 as mentioned in the tabular statement above.
(3) The petitioner himself has stated in his writ petition that 74 successful candidates including Ii candidates of scheduled castes or scheduled tribes were appointed in the Indian Police Service, that amongst the 63 General candidates (excluding the scheduled castes and scheduled tribes candidates), the last candidate appointed in I.P.S. was N. Gunasekaran, who ranked at Seriall No. 191, and that 8 candidates were appointed for D.&H.P.; Police Service. Thus though the number of vacancies expected to be filled in was 87, the actual number of vacancies filled was 82.
(4) The petitioner was not among those appointed in the Indian Police Service . He, thereforee, wrote a letter on 2-8-1965 to the Government of India enquiring about his appointment in the Indian Police Service . on the results of the competitive examination held in 1964. The Under Secretary to the Government of India sent a reply (Annexure I), dated 10-8-1965, stating as under :-
'WITH reference to your letter dated 2nd August, 1965 on the subject noted above, I am directed to say that your rank in the merit list for Category Ii Services and the number of vacancies in the Indian Police Service are such that your turn for appointment to the Indian Police Service does not come. You may, however, be considered for appointment to the Delhi and Himachal Pradesh Police Service, Class Ii, in your turn in the merit list.'
The petitioner does not appear to have taken any further steps thereafter. But, according to him, he learnt in January. 1968, from a Notification No. 29/2/67-AIS.(iii), dated 4-5-1967 (Annexure III), issued by the Ministry of Home Affairs, Government of India, that the marks secured by P. V. Rajagopal and P. J. S. Kumar in the competitive examination held in 1964 were the same as those secured by himself, viz. 495 marks. He further alleged in his writ petition that he subsequently came to know that the other three candidates, viz. N. Gunasekaran, Krishan Swarup and Nandanandan Mishra. also secured the same number of marks. Feeling aggrieved that the Service Commission gave him the lowest rank among the six candidates when the other five also got the same number of marks as himself, and that while he was not appointed in the Indian Police Service ., P. V. Rajagopal, P. J. S. Kumar and N. Gunasekaran had been appointed in the I.P.S., he filed the present writ petition praying for the reliefs which have already been set out above. He also alleged in the writ petition that out of the 74 successful candidates who were appointed in the I.P.S., one Radha Krishan (roll No. 4603) resigned from the Indian Police Service . before the result of the next competitive examination was declared, and another selected probationer in the Indian Police Service . died well before the result of the next competitive examination, that there were thus vacancies to one of which he should have been appointed. and yet he was singled out and deprived of appointment in the Indian Police Service ., and that there was thus a violation of equal protection guaranteed under Articles 14 and 16 of the Constitution.
(5) In opposition to the writ petition, a counter-affidavit of Shri N. C. Talukdar, Deputy Secretary, Union Public Service Commission, has been filed on behalf of respondent No. 1, a counter-affidavit of Shri A. N. Batabyal, Deputy Secretary (Services) to the Government of India, Ministry of Home Affairs, has been filed on behalf of. respondent No. 2, and a counter-affidavit of Shri Paramjit Singh Kumar, respondent No. 4 has been filed on his own behalf. In reply to the said counter-affidavits, the petitioner filed rejoinder-affidavits.
(6) Shri Frank Anthony, learned counsel for the petitioner, contended firstly that the Union Public Service Commission had not given the correct rank to the petitioner in the merit list. For a proper appreciation of the contention, a few more facts have to be stated. In the writ petition, the petitioner alleged in paragraph 13 that he and the respondents Nos. 3 and 4 secured the same number of aggregate marks and were thus equal in order of merit and eligible for appointment in Indian Police Service ., that the Seriall order in the list published by the Union Public Service Commission was not in order of merit, and that it was not open to the Ministry of Home Affairs to select whomsoever they wanted among equals without firstly laying down a rule or criterion for selection. As already stated, it is not only the petitioner and respondents 3 and 4, but also Krishna Swarup, Nandanandan Mishra and N, Gunasekaran who secured the same number of aggregate marks, viz. 495 marks. In reply to the aforesaid allegation of the petitioner. Shri N. C. Talukdar explained in his counter-affidavit how the six candidates were given their ranks in the list issued by the Public Service Commission. He averred that the names of the aforesaid six candidates were arranged by the Commission in infer se order of merit according to certain objective principles, and explained the principles as follows :-
'IN a competitive examination, particularly one in which a large number of candidates appear, two or more candidates may secure the same aggregate marks. For purposes of determining the inter se order of merit of candidates securing the same aggregate marks, the Commission have, with due regard to the requirements of the Scrvice(s) concerned, evolved certain objective principles through then long experience, on the basis of which such candidates are placed in the order of merit inter se. These principles are strictly applied by them uniformly for the last many years in all cases pertaining to a particular scheme of 'ecruitment; and no deviations from these principles have been made so far. Broadly speaking, the principles are related to the competitive scores of the candidates concerned in the part(s) of the scheme of the competitive examination, which, being fundamental to the recruitment concerned, the Commission consider to be indicative of the comparative suitability of such candidates for appointment to the Service in question.'
The Ministry of Home Affairs had issued rules for the competitive examination held by the Union Public Service Commission in 1964, a copy of which has been filed as Annexure R-l to the counter- affidavit of Shri Talukdar. In the case of Category Ii Services, viz.., the Indian Police Service . and the D.&H.P;, Police Service Class Ii, covered by the combined competitive examination at which the petitioner and the five other candidates had appeared, the plan of the competitive examination, as prescribed in Section 1 of Appendix Ii to the aforesaid rules. is as follows :-
____________________________________________________________________________ Maximum marks '(A) Three compulsory subjects, viz.. Essay, General English, and General Knowledge, which, all candidates are required to offer . 450 (B) Interview for a personality test in the case of those called for interview 200 (C) Two optional subjects .... 400 ------ Aggregate 1,050 ------ ____________________________________________________________________________
Shri Talukdar went on to explain in his counter-affidavit that in the case of candidates securing the same aggregate marks out of the 1050 marks-the aggregate of marks under items (A), (B) and (C) above-the principle adopted by the Commission was that the inter se order of merit of such candidates should be derived from the comparative aggregate scores in respect of items (A) and (B) only, i.e. for items other than the optional subjects. He then pointed out that in the present case the aforesaid six candidates in respect of the examination for Category Ii Services secured the same aggregate marks, viz. 495 marks, and the break up of the said marks secured by them was as folows-
___________________________________________________________________________ R. No. Name Aggregate Marks in Rank marks in respect assigned respect of of item (C) items (A)&(B) ___________________________________________________________________________ 1 2 3 4 5 ___________________________________________________________________________ 2794 P. V. Rajagopal 347 148 189 296 P. J. S. Kumar 285 210 190 2740 N. Gunasekaran 276 219 191 165 Krishan Swarup 269 226 192 1210 Nandanandan Mishra 262 233 193 2159 P.R.S.Brar 255 240 194 ____________________________________________________________________________
It is clear from the above break up of the marks that the ranks assigned by the Service Commission to the six candidates were in accordance with the objective principle said to have been adopted by the Commission. As the six candidates got the same aggregate marks of 495 in respect of items (A), (B) and (C), the Commission gave them ranks in accordance with the aggregate marks secured by them in respect of items (A), and (B) only, and ignored the marks secured by them in respect of item (C) i.e. the optional subjects.
(7) The argument of Shri Anthony was that the principle said to have been adopted by the Service Commission was not mentioned in the rules issued by the Ministry of Home Affairs and was thus unpredicted and unpredictable, and that the adoption of the said principle was, thereforee vocative of natural justice., as, if it had been indicated in the rules, the candidates would have concentrated more on items (A) and (B). There is no force in this argument. It is true that the principle adopted by the Commission was not mentioned in the rules referred to above. But , it is difficult to understand how the candidates would have been in a better position if the principle had been mentioned in the rules. It seems to us that by knowing before the examination that in the case of successful candidates who secure the same aggregate number of marks, the aggregate of the marks, secured by them in items (A) and (B) would be the basis for giving their rank in order of merit, the candidates would not be in any better position, as no one of them can anticipate or assume that he might get the same number of aggregate marks as some other candidates, and even in case of such anticipation, there is nothing that he can do before the examination. His proficiency in the subjects in item (A) would be just what he had achieved and his performance in interview would also be the same, and he would not be any way the better by a previous knowledge of the aforesaid principle. We, thereforee, do not consider that the omission to mention the principle in the rules had occasioned any violation of principles of natural justice as contended by the learned counsel for the petitioner.
(8) Shri Anthony also argued that the object of the examination was to select the best qualified candidates, that the compulsory subjects, viz. Essay, General Knowledge and General English are merely qualifying tests while proficiency in the optional subjects is the best test of the capacity and the suitability of the candidates, and that the exclusion of the marks secured by the candidates in the said optional subjects was unreasonable and unjust. This argument also cannot be accepted. It has to be noted that the principle adopted by the Service Commission was only where a number of candidates secured the same number of aggregate marks. In such a situation, the Service Commission had to adopt some objective principle or basis for determining the relative merit of such candidates and fixing their ranks inter se. This is a matter on which the Service Commission alone, on account of their knowledge and experience, would he the proper and the best authority. If they had considered that the proficiency of a candidates in the subjects in item (A) and his performance in interview are proper criteria for his suitability for appointment in the Indian Police Service . or D.&H.P.; Police Service, Class Ii, it is not for a Court to sit in Judgment over their point of view.
(9) Shri Anthony referred to the decision of the Supreme Court in Minor A. Peeriakaruppan v. State of Tamil Nadu, : 2SCR430 . In that case, the petitioners who filed the writ petition in the Supreme Court unsuccessfully sought admission to certain Medical Colleges in the State of Tamil Nadu. and they filed the writ petition asking for a writ of Mandamus directing the State of Tamil Nadu to allot to each one of them a seat in one of the Government Medical Colleges in the State. The petitioners challenged the validity of the selection for admission on various grounds, one of them being that the interview held by the Selection Committee was a farce, that the interview marks were given arbitrarily, that no objective criterion was fixed for interview, and that while the Selection Committee was required to award 75 marks fixed for interview on the basis of five tests, the Committee had not divided the interview marks under the various heads nor were the marks given on itemised basis, but the marks were given in a lump. The Supreme Court, while observing that earmarking 75 marks out of 276 marks for interview as interview marks prima facie appeared to be excessive, held that it could not be contended that it was not within the power of the Government to provide such high marks for interview or that there was any arbitrary exercise of power. Their Lordships also repelled the contention that no objective criterian was fixed for interview. They, however, held that the giving of marks in a lump was illegal, and that on the facts placed before them it was clear that the candidates were not interviewed in accordance with the rules governing the interview. The said decision cannot be of any assistance to the petitioner in the present case, as no such allegations and contentions as were made and put forward in the writ petition in the case before the Supreme Court have been made or raised in the writ petition before us. The question which has been raised in this case and discussed by us above, did not arise and was not considered in the aforesaid decision of the Supreme Court.
(10) For the above reasons, we hold that the principle adopted by the Service Commission in determining the order of merit of successful candidates who had obtained the same aggregate of marks in items (A), (B) and (C), was quite reasonable and proper, that ranks given to the six candidates referred to above were correctly given on the basis of the said principles; and that there was no discrimination at all since the principle were applied uniformly to all the candidates who secured equal number of aggregate marks and not to the petitioner alone. The first contention of the learned counsel for the petitioner has. thereforee, to be rejected as untenable.
(11) The second .contention of Shri Anthony was that on 10-8-1965. P. J. S. Kumar. (respondent No. 4), who had also qualified for appointment in the Indian Postal Service Class I, was offered a post in the said Indian Postal Service that when a vacancy arose in the 1.P.S., he was called back from the Postal Service and was offered a post in the Indian Police Service . on 26-8-1965, that P. J. S. Kumar, who had been appointed to a post in the Indian Postal Service, should not have been called back and offered the vacant post in the Indian Police Service .. and that the petitioner should have been offered that vacant post in the I.P.S. This contention also has no force. It appears from the averments of P. J. S. Kumar and A. N. Batabyal in their counter affidavits that under the rules the candidates were required to submit a list of Services showing their order of preference, that Kumar's first preference was for Indian Police Service, and that he had also been recommended by the Service Commission for appointment to Central Services-Class I, and had been offered an appointment on 10-8-1965 (Annexure X) to a post in the Indian Postal Service on probation, because his turn for appointment to the Indian Police Service .. for which he had indicated first preference, had not come by that tune. It also appears that after the said appointment, two further vacancies arose in the Indian Police Service . One of them arose when one Kanwal Sibbal, whose rank was No, 6 in the list, declined the offer of appointment to the Indian Police Service . and, thereupon the said vacancy was to be offered to one Chander Dev Singh (Rank 188), but he had been declared medically unfit. The vacancy was ultimately offered to P. V. Raja gopal (respondent No. 3). The second vacancy arose when a candidate, K. V. Irniraya, who had indicated higher preference for the Indian Ordinance Factories Service, was appointed to that Service. This vacancy was, thereforee, offered on 26-8-1965 (Annexure Y) to P. J. S. Kumar (respondent No. 4), who had indicated first preference for the Indian Police Service . and had a right to be appointed to that Service. The argument of Shri Anthony was that P. J. S. Kumar. who had already been appointed in a post in that Indian Postal Service, should not have been called back and offered the vacancy in the Indian Police Service . The said argument is untenable bacause. as explained in the counter-affidavits of Shri Batabyal and P. J. S. Kumar. the first preference of the latter was for the Indian Police Service .. but. he was offered a post in the Indian Postal Service as there was no vacancy in the I.P.S. by that time, and as soon as a vacancy arose in the Indian Police Service . by reason of Shri Irniraya's appointment to the Indian Ordinance Factories Service, P. J. S. Kumar was entitled to be offered appointment in that vacancy, and the same was. thereforee, offered to him. As stated by P. J. S. Kumar in his counter-affidavit, his appointment on probation in the Indian Postal Service was not of his own for choice or option. His preference was for Indian Police Service . He being next in rank for appointment, was entitled to a post in Indian Police Service . as and when it arose. He was offered a post and was appointed only on probation in the Indian Postal Service as there was no vacancy in the Indian Police Service . by that time. Such a vacancy arose within about sixteen days, and he was offered that vacancy. We are unable to find any legal infirmity in the said offer and appointment. The petitioner was much lower in rank than P. J. S. Kumar in the list, and was not. thereforee, entitled to be appointed in that vacancy in preference to P. J. S, Kumar. The second contention on behalf of the petitioner is, thus, without any force.
(12) The last contention of Shri Anthony was that in any event the petitioner should have been appointed in the Indian Police Service . when two further vacancies arose subsequently in the Indian Police Service . The petitioner averred in his writ petition that one Radha Krishnan (Roll No. 4603) resigned from the Indian Police Service , and a selected probationer in the Indian Police Service . died before the result of the next examination was declared. This averment was 'not denied in the counter-affidavit of Shri Batabyal, who merely stated, that the petitioner's turn, based on his rank, came only for D. & H.P. Police Service-Class Ii, to which he was appointed, that after all the appointments proposed to be made on the results of an examination have been made, no further appointment is made in vacancies caused by resignation of death of any of the appointees, and that even if the Government had decided to fill in the vacancies caused by the resignation of Radha Krishan and the death of a probationer, it would have been offered to Krishan Swarup and failing him to Nandanandan Mishra who were ranked higher than the petitioner in the list, and, thus, the petitioner was not prejudiced in any manner. It has; however, to be noted that Shri Batabyal also stated in paragraph 10 of his counter-affidavit that Nandanandan Mishra declined to accept D.&H.P;, Police Service-Class Ii, and he was not appointed to any Service. In reply to the averments of Shri Batabyal. the petitioner stated in his rejoinder that he had reason to believe that Krishan Swarup had qualified for one of the Central Services in the examination held in 1964, that since Shri Batabyal admitted that Nandanandan Mishra had rejected the offer of appointment in D.&H.P.; Police Service, the respondents were bound to make the offer to the petitioner, and that the respondents could not plead their own failure, whatever the motive, to make an offer to Krishan Swarup and Nandanandan Mishra as a reason for not making the offer to the petitioner. He also averred that there was absolutely nothing to show that Krishan Swarup and Nandanandan Mishra would have accepted the offer even if it had been made to them. and that in the circumstances. he was entitled to be offered the vacancy that had arisen. Shri O. P. Malhotra, the learned counsel for the respondent No. 2 submitted that the two vacancies were available only till May, 1965, after which a new list of examinees had come, and that the two vacancies were filled by the time the present writ petition was filled on 7-4-1969 No such averments were made by Mr. Batabyal in his counter affidavit, and the submissions of Mr. Malhotra were based, as stated by him, on instructions. However, even according to the petitioner. Radha Krishnan resigned and the selected probationer died before the result of the next examination was declared. In other words, the two vacancies had arisen before the result of the next examination was declared. But, the petitioner did not state in his writ petition when exactly the next examination was held. The writ petition was filed as late as 7-4-1969. It cannot be presumed or assumed that the vacancies had continued to remain unfilled till the date of the writ petition. In the absence of a definite averment to that effect and proof of the same, it is not open to the petitioner merely to assert that the said vacancies had continued to exist, and claim that he should be directed to be appointed in one of them. The last contention of Shri Anthony cannot, thereforee, be accepted.
(13) For the above reasons, the writ petition is dismissed, but in the circumstances, without costs.