Allahabad High Court
Pramod Kumar Singh And 160 Others vs State Of U.P. And 11 Others on 6 April, 2026
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD HIGH COURT OF JUDICATURE AT ALLAHABAD SPECIAL APPEAL DEFECTIVE No. - 429 of 2022 Pramod Kumar Singh and 160 others ..Appellant(s) Versus State of U.P. and 11 others ..Respondent(s) Counsel for Appellant(s) : Alok Mishra, Binod Kumar Mishra, Sr. Advocate Counsel for Respondent(s) : C.S.C., Chandan Sharma, Prabhakar Awasthi, Siddharth Singhal, Vinit Kumar Sharma Along with : 1. Special Appeal Defective No. 685 of 2024: Kalaktar Singh Versus State of UP and 11 others 2. Writ - A No. 5389 of 2021: Abhishek Sharma and 13 others Versus State of U.P. and another 3. Special Appeal No. 608 of 2022: Lokpal Singh and 18 others Versus State of U.P. and 11 others 4. Writ - A No. 5297 of 2021: Brijesh Kumar Singh Versus State of U.P. and another 5. Writ - A No. 5271 of 2021: Krishan Kumar Versus State of U.P. and 2 others 6. Special Appeal No. 659 of 2022: Yogendra Kumar Yadav and another Versus State of U.P. and 11 others 7. Special Appeal Defective No. 685 of 2024: Kalaktar Singh Versus State of UP and 11 others 8. Writ - A No. 45788 of 2016: Akash Singh Versus State of U.P. and 2 others Court No. - 3 HON'BLE SAUMITRA DAYAL SINGH, J.
HON’BLE SWARUPAMA CHATURVEDI, J.
1. Heard Sri Alok Mishra alongwith Sri Binod Kumar Mishra and Sri Dhananjay Kumar Pandey, learned counsel for the appellants-original petitioners, Sri Arimardan Singh Rajpoot, learned Additional Chief Standing Counsel for the State-respondents, Sri Siddharth Singhal, learned counsel for the U.P. Subordinate Service Selection Commission-respondent, Sri G.K. Singh, learned Senior Advocate assisted by Sri Chandan Sharma and Sri Rakesh Pande, learned Senior Advocate assisted by Sri Vinit Kumar Sharma, learned counsel for the selected candidates-respondents, and perused the record.
2. The present intra-court appeals have arisen against the common judgment and order dated 30.08.2022. By that order, the learned single judge has dismissed all the writ petitions filed by different sets of original-petitioners, raising challenge to the selection on the post of Excise Constable, conducted by the Uttar Pradesh Subordinate Services Selection Commission (hereinafter referred to as the Commission), under Advertisement No.9(2)-2016 dated 05.05.2016 (hereinafter referred to as the Advertisement). All the original petitioners-appellants are male candidates. Their fact grievance is-they have suffered failure for reason of relaxed physical standards made applicable to women candidates, that despite and in excess of the reservation provided in favour of women candidates. Another layer of grievance has been voiced that the cut-off marks for women candidates at the Screening Test, were also reduced. Thus, wholly unfair results have been declared.
3. These appeals have been heard together. On behalf of the original petitioners-appellants, submissions have been first advanced by Sri Alok Mishra, learned counsel for the original petitioners-appellants appearing in Special Appeal No.659 of 2022, Special Appeal Defective No.429 of 2022 and Special Appeal Defective No.685 of 2024. Sri Dhananjay Kumar Pandey, learned counsel for the original petitioners-appellants has adopted the submissions advanced by Sri Alok Mishra.
4. Common facts are involved. Those may be noted first. The Commission published Advertisement dated 05.05.2016 No.09(2)-2016, advertising 405 posts of Excise Constables. Out of those, 203 posts were offered to Unreserved/General Category; 109 to Other Backward Castes (OBC); 85 to Scheduled Castes (SC) and, 08 were reserved for Scheduled Tribes (ST), under four vertical columns. By way of horizontal reservation, 08 were offered to Dependents of Freedom Fighters; 20 to Ex-Army Personnel and, 21 to women candidates. Relevant to the present dispute, Clause 9, 10 and 11 of the Advertisement read as below:
9- चयन का आधारः- आबकारी सिपाही पद पर चयन का आधार दौड़, लंबी कूद और क्रिकेट बॉल थ्रो तथा साक्षात्कार है।
10- शारीरिक मापदण्डः- आबकारी सिपाही पद के लिए अभ्यर्थी का शारीरिक मापदंड निन्नवत होगा-
पुरुष अभ्यर्थियों के लिए-
(1) सीना- न्यूनतम 80 सेंटीमीटर (बिना फुलाए), न्यूनतम 85 सेंटीमीटर (फुलाने पर)।
(2) ऊँचाई- न्यूनतम 167.6 सेंटीमीटर।
महिला अभ्यर्थियों के लिए-
(1) वजन- न्यूनतम 45 किलोग्राम ।
(2) सामान्य वर्ग के अभ्यर्थियों के लिए ऊँचाई न्यूनतम 152 सेंटीमीटर।
(3) अनुसूचित जाति एवं अनुसूचित जनजाति के अभ्यर्थियों के लिए ऊंचाई- न्यूनतम 147 सेंटीमीटर।
11- चयन की प्रक्रियाः- पद की संगत सेवानियमावली यथासंशोधित 2016 के नियम-15 के अंतर्गत उत्तर प्रदेश समूह ‘ग’ के पद के लिए सीधी भर्ती (रीति और प्रक्रिया) नियमावली-2015 के अनुसार होगी। तदनुसार आबकारी सिपाही पद पर चयन के लिए शारीरिक परीक्षा और साक्षात्कार को मिलाकर 100 अंकों का होगा। पात्र अभ्यर्थियों से शारीरिक परीक्षा में सम्मिलित होने की अपेक्षा की जाएगी।
(क) शारीरिक परीक्षाः शारीरिक परीक्षा दौड़, लंबी कूद और क्रिकेट बॉल थ्रो को मिलाकर 60 अंकों की होगी। शारीरिक परीक्षा के लिए मदवार अंक निव्रलिखित तालिका में दिये गए विवरण के अनुसार प्रदान किए जाएंगेः-
क्रमांक
पुरुष अभ्यर्थियों के लिए
महिला अभ्यर्थियों के लिए
मद
समय (मिनट में)
प्रदान किये जाने वाले अंक
मद
समय (सेकेंड में)
प्रदान किये जाने वाले अंक
1
दौड़ कुल दूरी 4.8 किलोमीटर (3 मील)
30
12
दौड़ कुल दूरी 200 मीटर
52
12
27
15
50
15
24
18
48
18
21
20
46
20
2
लंबी कूद
दूरी (फिट में)
प्रदान किये जाने वाले अंक
लंबी कूद (मीटर को फिट में गणना के अनुसार)
दूरी (फिट में)
प्रदान किये जाने वाले अंक
15
12
8
12
17
16
9.5
16
18
20
10
20
3
क्रिकेट बॉल थ्रो
दूरी (मीटर में)
प्रदान किये जाने वाले अंक
क्रिकेट बॉल थ्रो
दूरी (मीटर में)
प्रदान किये जाने वाले अंक
61
12
12
12
63
16
13
16
65
20
14
20
उपरोक्त निर्दिष्ट शारीरिक परीक्षा में जो अभ्यर्थी योग्य पाये गए हों, साक्षात्कार के लिए बुलाया जाएगा। साक्षात्कार 40 अंकों का होगा।”
(emphasis supplied)
5. Applications were submitted online, between 05.05.2016 and 27.05.2016.
6. On 10.08.2016 the State Government informed the Secretary of the Commission about the approval granted by His Execellency the Governor – in terms of the Rule 8(1) of UP Direct Recruitment of Group C Posts (Mode and procedure), Rules, 2015 (hereinafter referred to as the Procedure Rules). Perusal of its annexure reveals, approval was granted for conduct of the selection was to be made process in three phases. First, Screening Test of 90 marks and, thereafter, selection was to be made on the basis of Physical Efficiency Test of 60 marks and Interview Test of 20 marks.
7. Consequentially, on 16.08.2016, vide publication No.9(02)/2016, the Commission notified that His Excellency the Governor had granted approval to the method of recruitment proposed by the Commission, in terms of Rule 8 (1) of the Procedure Rules. Thus, Screening Test was proposed to be held on 25.09.2016, by way of first phase of the selection. Thereafter, under the second phase, the short listed candidates were to be called for Physical Efficiency Test of 60 marks. Last, by way of the third phase, the short listed candidates were to be called for Interview Test of 20 marks.
8. Thereafter, on 25.09.2016, the Screening Test was held. Its result was declared on 22.08.2020 by the Commission. Between 16.02.2021 to 20.03.2021, Physical Efficiency Test was conducted for the short listed candidates. All petitioners, appeared at the Physical Efficiency Test. Its result was declared on 17.08.2021. Thereafter, Interview Test was conducted. The original petitioners-appellants appeared at that test as well.
9. Before the final result could be declared, Writ-A no. 4225 of 2022 was filed by Pramod Kumar Singh and others. Five days, thereafter, the final result was declared vide Notification No.5/20. Thereafter, Writ-A No.6056 of 2022 was filed on 08.04.2022.
10. Since the selection process had been completed, on 10.05.2022, an Amendment Application was moved, seeking further relief against the selected candidates. Thus, the result was challenged and relief was sought against the selected candidates. After exchange of affidavits, the writ petition was dismissed vide order dated 30.08.2022. During the course of the submissions advanced, reference has been made to the UP Excise Constables, Drivers and Tadi Supervisors Service Rules, 1983 (5th Amendment), Rules 2016 (hereinafter referred to as the Excise Service Rules). Relevant to the present controversy, reliance has been placed on the amendments made by the 5th Amendment Rules 2016. It is extracted as below:
नियम-15 का प्रतिस्थापन
11. उक्त नियमावली में, नीचे स्तम्भ-1 में दिये गये विद्यमान नियम-15 के स्थान पर स्तम्भ-2 में दिया गया नियम रख दिये जायेगा, अर्थातः-
सीधी भर्ती की प्रक्रिया
स्तम्भ-1
विद्यमान नियम
स्तम्भ-2
एतद्दवारा प्रतिस्थापित नियम
15.(1) सेवा में चालक के पद पर सीधी भर्ती समय-समय पर यथासंशोधित उत्तर प्रदेश सरकारी विभाग ड्राइवर सेवा नियमावली, 1993 के उपबन्धों के अनुसार की जायेगी।
(2) (एक) सेवा में आबकारी सिपाही के पद पर सीधी भर्ती एक चयन समिति के माध्यम से की जायेगी, जिसमें निम्नलिखित सदस्य होगेः-
(क) उप आबकारी आयुक्त- अध्यक्ष
(ख) आबकारी आयुक्त दारा नामित दो सहायक आबकारी आयुक्त- सदस्य
टिप्पणी:- चयन समिति में अनुसूचित जाति, अनुसूचित जनजाति और नागरिकों के अन्य पिछड़े वर्गों को प्रतिनिधित्व देने के लिये अधिकारियों का नाम निर्देशन, समय-समय पर यथासंशोधित उत्तर प्रदेश लोक सेवा (अनुसूचित जातियों, अनुसूचित जनजातियों और अन्य पिछड़ा वर्गों के लिये आरक्षण) अधिनियम, 1994 की धारा-7 के अधीन दिये गये आदेशों के अनुसार किया जायेगा।
(दो) चयन समिति आवदन-पत्रों की संवीक्षा करेगी और पात्र अभ्यर्थियों से चयन के लिये एक परीक्षा में सम्मिलित होने की अपेक्षा करेगी। चयन के लिये परीक्षा, शारीरिक परीक्षा और साक्षात्कार को मिलाकर 100 अंको का होगा।
(तीन) चयन समिति पात्र अभ्यर्थियों से शारीरिक परीक्षा में सम्मिलित होने की अपेक्षा करेगी। शारीरिक परीक्षा दौड, लम्बी कूद और क्रिकेट बाल थ्रो को मिलाकर साठ अंकों की होगी। इस शारीरिक परीक्षा के लिये मदवार अंक निम्नलिखित रीति में प्रदान किये जायेगे-
पुरुष अभ्यर्थियों के लिये-
(क) दौड़
समय (मिनट में)
प्रदान किये जाने वाले अंक
कुल दूरी 4.8 कि०मी० (3 मील)
30
27
24
21
12
15
18
20
(ख) लम्बी कूद
दूरी (फीट में)
प्रदान किये जाने वाले अंक
15
17
18
12
16
20
(ग) क्रिकेट बाल थ्रो
दूरी (मीटर में)
प्रदान किये जाने वाले अंक
61
12
63
16
65
20
महिला अभ्यर्थियों के लिएः-
(क) दौड़
समय
प्रदान किये जाने वाले अंक
कुल दूरी 200 मीटर
52सेकेंड
12
50सेकेंड
15
48सेकेंड
18
46सेकेंड
20
(ख) लम्ब कूद (मीटर के फुट में गणना के अनुसार)
दूरी
प्रदान किये जाने वाले अंक
8 फुट
12
9.5फुट
16
10.0फुट
20
(ग) क्रिकेट बाल थ्रो
निर्धारित दूरी
प्रदान किये जाने वाले अंक
12 मीटर
12
13मीटर
16
14मीटर
20
(चार) चयन समिति उतनी संख्या में अभ्यर्थियों को जो खण्ड तीन में निर्दिष्ट शारीरिक परीक्षा में योग्य पाये गये हो, साक्षात्कार के लिये बुलायेगी। साक्षात्कार 40 अंकों का होगा।
साक्षात्कार में अंक निम्नलिखित रीति में प्रदान किये जायेंगे :-
(क) विषय/सामाल्य ज्ञान- अधिकतम दस अक
(ख) व्यक्तित्व परीक्षा- अधिकतम दस अंक
(ग) अभिव्यक्ति की क्षमता अधिकतम-दस अंक
(घ) अधिकारिक रूप से प्रमाणित असाधारण योग्यता- अधिकतम दस अंक
(पांच) खण्ड (चार) के अधीन साक्षात्कार से दिये गये अंक खण्ड (तीन) के अधीन शारीरिक परीक्षा में दिये गये अंकों में, जोड दिये जायेंगे।
(छः) चयन समिति नियम 6 के अधीन अनुसूचित जातियाँ, अनुसूचित जनजातियों और अन्य श्रेणियों के अभ्यर्थियों का सम्यक प्रतिनिधित्व की आवश्यकता को ध्यान में रखते हुए खण्ड (पांच) के अधीन, जैसा उनके द्वारा प्राप्त अंको के योग द्वारा प्रकट हो, श्रेष्ठता के क्रम में अभ्यर्थियों की चयन सूची तैयार करेगी। यदि दो या अधिक अभ्यर्थी योग में बराबर-बराबर अंक प्राप्त करें, तो अभ्यर्थी जो आयु में ज्येष्ठ हो, सूची में उच्चतर स्थान पर रखा जायेगा। चयन समिति सूची को नियुक्ति प्राधिकारी को अग्रसारित करेगी।
सीधी भर्ती की प्रक्रिया 15 आबकारी सिपाही के पद पर सीधी भर्ती उत्तर प्रदेश समूह ग के पदों के लिये सीधी भर्ती (रीति और प्रक्रिया) नियमावली, 2015 के अनुसार की जायेगी।
परन्तु यह कि चयन में अपनायी जाने वाली प्रक्रिया में उत्तर प्रदेश आबकारी सिपाही ड्राइवर और ताड़ी पर्यवेक्षक सेवा (चतुर्थ संशोधन) नियमावली, 2008 में यथाविद्यमान शारीरिक परीक्षा के सम्बन्ध में दिये गये उपबन्ध भी सम्मिलित किये जायेंगे।
परन्तु यह और कि यदि किसी समय आबकारी सिपाही का पद, उत्तर प्रदेश अधीनस्थ सेवा चयन आयोग अधिनियम, 2014 (उत्तर प्रदेश अधिनियम संख्या 20. 2014) की धारा 2 के परन्तुक के अधीन आयोग की परिधि से बाहर रखा जाता है, तो ऐसी स्थिति में सेवा में आबकारी सिपाही के पद पर सीधी भर्ती की प्रक्रिया ऐसी होगी जैसी कि उत्तर प्रदेश आबकारी सिपाही, ड्राइवर और ताड़ी पर्यवेक्षक सेवा (चतुर्थ संशोधन) नियमावली, 2008 में दी गयी है।
11. Also, reference has been made to the Procedure Rules. Relevant to the present Rules 8 of those Rules is extracted herein below:
Procedure for direct recruitment
8. (1) The procedure for direct recruitment, the syllabus, marks of written examination/interview and the rules relating thereof shall be such as prescribed by the Commission from time to time with the approval of the Government.
(2) When, in accordance with the provisions of sub-rule (1) direct recruitment is to made on the basis of written examination and interview, the following procedure shall be followed:-
(i) Application for permission to appear in the competitive examination shall be invited by the Commission in the form published in the advertisement issued by the Commission.
(ii) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.
(iii) After the results of the written examination have been received and tabulated, the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and others under rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.
(iv) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. If two or more candidates obtain equal marks in the written examination also, the name of the candidate senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority.
(3) When, in accordance with the provisions of sub-rule (1) direct recruitment it to be made on the basis of written examination only, the following procedure shall be followed :-
(i) Application for permission to appear in the competitive examination shall be invited by the Commission in the form published in the advertisement issued by the Commission.
(ii) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.
(iii) After the results of the written examination have been received and tabulated, the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under rule 6, prepare a list of candidates who have come up to the standard fixed by the Commission in this respect.
(iv) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by each candidate at the written examination and recommend such number of candidates as they consider fit for appointment. If two or more candidate obtain equal marks, the candidate senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority.
(4) When, in accordance with the provisions of sub-rule (1) direct recruitment is to be made on the basis of interview only, the following procedure shall be followed :-
(i) Application for being considered for selection shall called by the Commission in the form published in the advertisement issued by the Commission.
(ii) The Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with rule 6, call for interview such number of candidates, who fulfil the requisite qualifications, as they consider proper.
(iii) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by each candidate in the interview. It two or more candidates obtain equal marks, the candidate senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority.
(emphasis supplied)
12. To the extent, the standards of Physical Efficiency are prescribed under Rule 15 of the Excise Service Rules (4th Amendment), those have been applied, as have already been extracted above.
13. In the context of such facts and statutory provisions, Sri Alok Mishra, learned counsel for the original petitioners would submit, Clause 9 of the Advertisement is contrary to Rule 2015 of Excise Rules, as amended by the 5th Amendment Rules, 2016, read with the Procedure Rules. The Commission has not followed those amended Rules-to the extent the Commission also did not hold a written examination. Since the Procedure Rules carry statutory force, their non-adherence vitiates the selection in entirety. Relying on Amrit Yadav Vs. The State of Jharkhand and others 2025 SCC Online SC 280, it has been further submitted-mere participation (at the selection), will not take away the right to challenge that selection, conducted contrary to the Rules. Reliance has been placed on Dr. (Major) Meeta Sahai Vs. State of Bihar and others (2019) 20 SCC 17.
14. In the alternative, under Rule 16 of the Excise Rules (5th Amendment), it was mandatory on the part of the Commission to conduct selection by awarding 60 marks for the Physical Efficiency Test and 40 marks for the Interview Test. Contrary to those Rules, and in defiance of the original terms of the Advertisement, the maximum marks for the Interview Test were arbitrarily reduced to 20 marks. That could not have been done. Still, alternatively, the rules of the game could not be changed after the selection process had begun. Reliance has been placed on K. Manjusree vs. State of A.P. (2008) 3 SCC 512 and a five-judge bench decision of the Supreme Court in Tej Prakash Pathak and Others v. Rajasthan High Court and Others, (2025) 2 SCC 1.
15. Independent of the above noted alternative submissions, it has been further submitted, at the Screening Test different parameters were applied by the Commission – to shortlist candidates. One set of cut-off marks was prescribed for male candidates and another for female candidates. In doing that, hostile discrimination has been practiced.
16. Last, it has been strenuously urged, it never became open to the Commission to prescribe different standards of physical efficiency for male and female candidates. Once reservation had been provided for female candidates, the relaxed standards of physical efficiency could only be applied within that category of reservation. The Commission could not have generally allowed such relaxed standards to be made available to female candidates, for the award of marks out of 60 and, at the same time, thereafter, allowed such female candidates to be considered in the general merit list. Reliance has been placed in Union of India Vs. G. Kiran and others, (2026) SCC Online SC 22. After close of submissions, and in fact after the oral pronouncement was complete, Sri Alok Mishra close to rely on yet another decision of the Supreme Court in Arshnoor Kaur and Another Vs. The Union of India and others (2025) SCC Online SC 1668. Though not proper, yet we have allowed that submission to be advanced. Only for the purpose of structure of this order, we refer to the same, here.
17. Responding to the above, Sri Siddharth Singhal, learned counsel for the Commission would contend, none of the submissions being pressed in the present intra-court appeal had been pressed before the Writ Court. In that regard, he has first referred to the prayer clause of the writ petition being Writ-A No.4225 of 2022. It is quoted below:
(i) issue a writ, order or direction in the nature of certiorari to quash the criteria of Physical Efficiency Test contemplated in Notification No.09(2)/2016 which is against the Article 14, 15 and 16(2) of the Constitution of India; (Annexure No.3 to this writ petition);
(ii) issue a writ, order or direction in the nature of certiorari to quash the impugned result dated 15.03.2022 declared by the respondent no.3 (Annexure No.2 to this writ petition);
(iii) issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no.3 to bring the records pertaining to the selection process for the post of Excise Constable notified vide Notification No.09(2)/2016 issued by respondent no.3 and especially the list of those candidates who had availed the benefit of the reservation/relaxation at any stage of the selection procedure and illegally/arbitrarily given selections in Unreserved category whereby infringing the fundamental rights of the petitioners;
18. Thus, it has been objected, the only challenge raised in the writ petition was to quash the criteria of the Physical Efficiency Test. That criteria is prescribed by the 4th Amendment to the Excise Rules, as applicable. In absence of any challenge to the said Rules, that challenge raised had to fail. Second challenge raised, was to the result declared. It is a consequential relief sought on the strength of the first prayer made by the petitioner. The third prayer made in the writ petition was also not with respect to any challenge to the Rules, but the shortlisting of candidates, without raising any other challenge. Therefore, no fresh challenge may be raised, at this stage. Reliance has been placed on Shanbaggakanna Vs. Muthu Bhattar and another Vs. AIR 715 SC 2468 and a full bench decision of the Punjab and Haryana High Court in the case of The Kurukshetra University and others Vs. Rural College of Education, Kaithal AIR 1980 Punjab and Haryana 103 (FS). Further reliance has been placed on a co-ordinate bench decision of this Court in Naveen Kamal Srivastava and 2 others Vs. State of U.P. 2025:AHC:6854-DB.
19. Alternatively, it has been submitted, having participated in the selection process, the original petitioners/appellants lost their right to challenge the same.
20. Still, alternatively, it has been submitted, there is no violation of the Rules by the Commission. To the extent, Rule 8(2)(iv), is not mandatory and is not the only mode that could be adopted by the Commission, no infringement of that Rule may be alleged. In fact, the Commission had adopted Rule 8(1), after due approval of the State Government. That was notified by the State Government, and notice was also published by the Commission, that too, before the conduct of the Screening Test. Thus, there is no illegality committed by the Commission.
21. Further, it has been vehemently urged-there is no change to the rules of the game, midway through the selection process. The mode and method of selection was first approved by the State Government on 10.08.2021, providing for maximum 20 marks for the Interview Test, under Rule 8(1) of the Procedure Rules. In any case, reduction of maximum marks for Interview Test, from 40 to 20, caused no prejudice.
22. According to his submissions, the decision of the Supreme Court in K. Manjusree (supra) is not applicable. In that case, maximum 100 marks for written test and 25 for Interview Test were contemplated. After the conduct of the examination, the maximum marks for the written test were reduced to 75 and qualifying marks for Interview Test, were prescribed. That aspect was dealt with and clarified by the decision of a Five-Judge Bench of the Supreme Court in Tej Prakash Pathak (supra). That is not the case here.
23. Further, reliance has been placed on State of U.P. Vs. Karunesh Kumar 2022 (17) SCALE 391 and Tejvir Singh Sodhi Vs. State of Jammu and Kashmir 2023 SCC Online SC 344.
24. Further, submission has been advanced – for reason of two scales/selection criteria being adopted for selection of two different categories (one male and one female), no two separate merit lists were required to be prepared. The submission to the contrary is fallacious. Once the legislature provided equalised scale of marks to be awarded for Physical Efficiency Test to male and female candidates, both carrying equal maximum marks 60 and, in the absence of any challenge to that, the objection being raised is a matter of perception but it does not involve a legal injury.
25. Once marks awarded to two categories of candidates have been scaled and thus equalised, for the purpose of a common selection process, on objective criteria, no challenge may arise and no objection may survive that the candidates must continue to be looked at as mutually different and distinct from each other for the purpose of preparation of a common merit list. The suggestion being made may be a possible view-to be taken by the legislative body. Yet, it is equally permissible under the constitutional scheme to allow for equalization through scaling adopted by legislative measures, as has been done in the present. At the cost of repetition, it has been stressed, in absence of any direct challenge to such legislative measure adopted, the submission advanced must fail.
26. Sri G.K. Singh, learned Senior Advocate submits, the selection was conducted in accordance with the Excise Service Rules read with the 5th Amendment Rules, thereto, read with the Procedure Rules. No challenge was raised to the prescription of physical standards on different scales for male and female candidates under the 4th Amendment Rules read with the Excise Service Rules.
27. Second, it has been submitted, prescription of maximum marks to be awarded for the Physical Efficiency Test and Interview Test, pre-existed under the Excise Rules. However, that was done away by the 5th Amendment Rules to the Excise Service Rules. To the extent, the Procedure Rules continue to apply and, further, to the extent, the Commission may have adopted the procedure under Rule 8(1) of the Procedure Rules, mention of maximum marks 40 to be awarded at the Interview Test (in the Advertisement), did not give rise to any illegality in the procedure adopted by the commission. Thus, the selection having been undertaken in terms of Rule 8(1) of the Procedure Rules, with the prior approval of the State Government, the provision of maximum marks 20 for the Interview Test, is in accordance with the law.
28. Adopting the submissions advanced by Sri Singhal, he would submit, no prejudice may ever be caused or claimed by the original petitioners-appellants, for reason of maximum marks for Interview reduced from 40 to 20. No change to the mode and/or method of examination was introduced after the selection process had been undertaken. Therefore, there was no change to the rules of the game, midway through the selection. He has also advanced submissions to clarify that the ratio of the decision of the Supreme Court in K. Manjusree (supra) is not applicable in the present facts, as there is no change to the rules of the game after the selection was undertaken. No prescription of qualifying marks has been made after the initiation of the selection process. He too has referred to and relied on the enunciation of the law by the Supreme Court, in Tej Prakash Pathak (supra).
29. Next, he would submit, on 29.05.2016, the original petitioners-appellants participated at the Screening Test, the Physical Efficiency Test and also the Interview Test. Five days before the result was declared, the first petition came to be filed. In that circumstance, the original petitioners/appellants may not be permitted to turn around – to raise challenge at this belated stage.
30. Sri Rakesh Pande, learned Senior Advocate, has also adopted the submissions advanced by Sri Singhal and Sri G.K. Singh, learned Senior Advocate. Further, he would submit-challenge had been raised to the reservation (for women), however, at present, other challenge as to merits of the matter, has been pressed. That is not permissible. Also, no difference (to the result) may ever arise upon reduction of maximum marks from 40 to 20.
31. Having heard learned counsel for the parties and having perused the record, in the first place it has to be recorded, the challenge raised to the selection has to be tested in the context of the statutory rules. Here, all parties to the dispute accept-that the selection on the post of Excise Constable, was to be made in accordance with the Excise Service Rules as amended by the 5th Amendment Rules, 2016, read with the Procedure Rules. By virtue of the Excise Service Rules as also the 5th Amendment Rules thereto, [including the note appended to Rule 15(2)], differential physical standards have been prescribed, to award equalized marks to female candidates. Being part of the statutory Rules, it has the force of law. It is not under challenge. Also, there is no dispute as to the validity of the Advertisement dated 05.05.2016.
32. With respect to the first submission advanced-that Clause 9 of the Advertisement, was contrary to the Excise Service Rules read with the Procedure Rules, we may first take note that Rule 8 of the Procedure Rules applies to the impugned selection by virtue of Rule 15 of the Excise Service Rules, 5th Amendment Rules. The said Rule does not provide for a singular mode of recruitment, rather, it is permissive of more than one mode that may be adopted by the Commission, at its sole discretion. The original petitioners admit and rather seek enforcement of that Rule. At the same time it could not be shown to us, either through express intent or by necessary implication arising from any statutory provision or Rule, that the Commission was obligated to conduct the selection process only in accordance with Rule 8(2), to the exclusion of Rule 8(1) of the Procedure Rules. Therefore, because Rule 8(2)(iv), provides for preparation of a list of candidates, in order of proficiency to be assessed on the strength of aggregate of marks obtained at the written examination and interview, that method would apply, in terms, only when the Commission first decides to conduct a Written Test, as well. Here, the Commission had proceeded in terms of Rule 8(1) of the Procedure Rules. First, under the Advertisement and later upon issuance of approval letter dated 10.08.2016 (by the State Government), and consequential notice dated 16.08.2016, the Commission had clearly opted to conduct only Physical Efficiency Test and Interview Test, for the short listed candidates, to the exclusion of a Written Test.
33. In that light, Rule 8(2)(iv), of the Procedure Rules, further provides, if two or more candidates obtain equal aggregate marks, preference would be given to the candidate obtaining higher marks at the Written Test. If those marks are also equal, then preference would be given to age. Yet, there was no decision made at any stage and no such decision has been shown to us – to establish that the mode of Written Test was ever intended to be adopted by the Commission for the impugned selection process. Therefore, by reference to or by application of that principle, to the merit list prepared by the Commission, it cannot be reasoned in reverse – that the Commission had, therefore, opted to follow Rule 8(2) procedure. The submission to the contrary is fallacious and unfounded.
34. On the contrary, Clause 9(2) of the Advertisement itself clearly provides, the selection would be held on the strength of running, long jump and cricket ball throw, together with Interview Test. Thus, the Advertisement also unequivocally indicated-conduct of Physical Efficiency Test and Interview Test as the only method for selection. That process is clearly referable to Rule 8(1) of the Procedure Rules. By virtue of the own language of the said Rule, it remained open to the Commission, of course, with the approval of the State Government, to prescribe a procedure for recruitment – that may best suit the needs for the selection to be made. Expressly, Written Examination remained an alternative or additional test. By using the / mark between Written Examination and Interview, the said Rule clearly left a wide discretion to the Commission-to conduct such examination as it may be advised, subject to the only pre-condition of it being approved by the State Government, first.
35. Seen in that light, Rule 8(2) of the Procedure Rules is couched more by way of a proviso to Rule 8(1). In that it stipulates-where the Commission may choose to conduct direct recruitment on the basis of Written Examination and Interview Test, i.e., by conducting both tests, and not either one of those tests only, it lays down the procedure to be followed. In that, sub-Rule (iii) provides for tabulation of marks obtained at the Written Examination etc. However, where the Commission may depart from that procedure and provide for a different mode of selection in terms of Rule 8(1) of the Procedure Rules, with the prior approval of the State Government, that law would bind the parties, and not the other stipulations of Rule 8(2) of the Procedure Rules-as may mandate conduct of the Written Examination, by way of a necessary concomitant of the selection undertaken by the Commission.
36. Any doubt in that regard, stands clarified by the use of words-When, in accordance with the provisions of sub-Rule (1), used as the opening words of Rule 8(2) of the Procedure Rules. Those words clearly render sub-Rule (2) to Rule 8 of the Procedure Rules, subject to Rule 8(1) of the Procedure Rules. It does not seek to override the provisions of Rule 8(1). Had that been the intention of the legislature, it may have used words such as Notwithstanding in place of the words When, in accordance with the provisions of sub-rule (1) (used at the beginning of Rule 8(2) of the Rules), to cause that effect.
37. Therefore, it falls for our consideration, if the Commission had notified (in accordance with law), any procedure different from the one contemplated under Rule 8(2) of the Procedure Rules i.e., in accordance with the procedure laid down in Rule 8(1) of those Rules. As noted above, on 10th of August, 2016 the State Government issued order/communication, to the Commission, stating as below:
“विषयः- आबकारी सिपाही एवं प्रयोगशाला प्राविधिज्ञ (लैब टेक्नीशियन) / प्रयोगशाला टेक्नीशियन के पदों पर चयन हेतु आयोग द्वारा तैयार की गई परीक्षा योजना तथा पाठ्य क्रम पर अनुमोदन।
महोदय,
उपर्युक्त विषयक आयोग के पत्र संख्या-176/भर्ती अनुभाग-आयोग/230/2016. दिनांक 04.07.2016 एवं पत्र संख्या-390/परीक्षा अनुभाग-2/आयोग/2016/406/2016. दिनांक 22.07.2016 के संदर्भ में आपको यह अवगत कराने का मुझे निदेश हुआ है कि उक्त पत्रों के साथ संलग्न आबकारी सिपाही एवं प्रयोगशाला प्राविधिज्ञ(लैब टेक्नीशियन) / प्रयोगशाला टेक्नीशियन के पदों पर चयन हेतु आयोग द्वारा तैयार की गई परीक्षा योजना तथा पाठ्यक्रम पर अधिसूचना दिनांक11.05.2015 के द्वारा प्रख्यापित, उत्तर प्रदेश समूह ‘ग’ के पदों के लिए सीधी भर्ती(रीति और प्रक्रिया) नियमावली, 2015 के नियम 8(1) के प्राविधानानुसार राज्यपाल महोदय, सहर्ष अनुमोदन प्रदान करते हैं।”
(emphasis supplied)
38. Thus, there exists-in express terms, the approval granted by the State Government (in terms of Rule 8(1) of the Procedure Rules). The annexures appended thereto, leave no matter of doubt that the method of recruitment proposed by the Commission, as approved by the State Government, contemplates maximum 80 marks for the selection test. Of that 60 are to be awarded against the Physical Efficiency Test and 20 against the Interview Test. The marks to be awarded at the Screening Test are not in issue, inasmuch as it is nobodys case that those marks had to be included in the preparation of the final list. That clear stipulation exists in the annexures to the communication dated 10.08.2016, inasmuch as, therein, it has been further stated as below:
“आबकारी सिपाही के पदों पर चयन के लिए स्क्रीनिंग परीक्षा, परीक्षा योजना एवं पाठ्यक्रम
आबकारी सिपाही के पदों पर चयन की कार्यवाही तीन चरणों में की जायेगी। प्रथम चरण में स्क्रीनिंग परीक्षा होगी जिसके अधिकतम अंक 90 होंगे। स्क्रीनिंग परीक्षा में प्राप्त अंकों को साक्षात्कार में सम्मिलित नहीं किया जायेगा। द्वितीय चरण में ऐसे अभ्यर्थियों में जो स्क्रीनिंग परीक्षा में सफल होंगे को शारीरिक परीक्षा में सम्मिलित होने की अनुमति प्रदान की जायेगी। शारीरिक परीक्षा 60 अंकों की होगी। शारीरिक परीक्षा में सफल होने वाले अभ्यर्थियों को साक्षात्कार हेतु आमंत्रित किया जायेगा। साक्षात्कार 20 अंकों का होगा। इस प्रकार से कुल 80 अंकों के आधार पर अभ्यर्थियों का चयन किया जायेगा।”
(emphasis supplied)
39. Not only that approval of the State Government exists, it is equally true, on 16th of August, 2016, the Commission had issued the consequential notice, providing for selection in the manner approved vide communication dated 10.08.2016, issued by the State Government (refered to above). No different method was provided by the Commission. Therefore, we also do not find any reason to accept that by way of tie-breaker provision, it may still have remained open to the Commission to apply the principle contained in Rule 8(2)(iv) of the Procedure Rules-to the extent applicable. Thus, in the absence of a Written Test, preference may be given to age in selecting one of the two or more candidates scoring equal marks.
40. Also, the objection raised with respect to discrepancy in the above referred two documents, is hyper-technical inasmuch as that is not borne out from a perusal of the documents. The objection has been raised on the strength of pleadings made regarding the notice. In face of documents being produced before the Court and those being undisputed, we may not choose to read them in the manner referred to in the pleadings-to infer their true character. Any error or deficiency in the draft of the Counter Affidavit-as to the description given to a document, may never be relied upon, to defeat the plain legal status or effect caused by that document. That legal status and effect must arise on the own strength of that document. Further, the fact that the communication dated 10.08.2016 is not a Government Order, may not carry any force inasmuch as Rule 8(1) does not require issuance of a Government Order, but it only refers to and mandates approval of the State Government. That approved undoubtably exists.
41. Therefore, merely because under Clause 11 of the Advertisement, the Commission had originally mentioned that the maximum marks for the Interview Test would be 40, it cannot be read to defeat the consequence of the statutory approval granted by the State Government, to the method of recruitment proposed by the Commission, in terms of Rule 8(1) of the Procedure Rules.
42. Second, here, change, if any, had been made before the selection process had been undertaken. Two facts stand out. One, neither the original method of recruitment as proposed by the Advertisement, i.e., on the strength of Physical Efficiency Test and Interview Test was changed, nor any fresh test such as Written Test, was advertised nor it was done away. Clause 9 of the Advertisement is clear and unambiguous. It only refers to Physical Efficiency Test and Interview Test. Those tests were provided for in the mode and method for recruitment approved by the State Government. They have not been changed. The selection has been conducted and completed on the strength of those two tests, only.
43. Third, the change of maximum marks from 40 to 20 for the Interview Test was prescribed and made known to all, even before the actual Screening Test was held. Also, we see no risk of prejudice having been caused for reason of reduction of maximum marks reduced from 40 to 20. The reduction of maximum marks for all short listed candidates could never result in alteration of assessment of inter-se merits of the candidates.
44. For those reasons, it is not possible to hold that the rules of the game were changed midway, i.e. after the selection process had been actually undertaken. The change being referred to also does not amount to change of any pre-existing rule, inasmuch as the two tests, that form the basis for selection, remained the same-from beginning to the end.
45. In that regard, paragraph Nos.35 and 36 of the report, the decision made by the larger bench of the Supreme Court in Tej Prakash Pathak (supra) noticed that point of distinction as below:
35. The discernible ratio in K. Manjusree2 is that the criterion for selection is not to be changed after completion of the selection process, though in absence of rules to the contrary the Selection Committee may fix minimum marks either for written examination or for interview for the purposes of selection. But if such minimum marks are fixed, it must be done before commencement of selection process. This view has been followed by another three-Judge Bench of this Court in Ramesh Kumar v. High Court of Delhi wherein the law on the issue has been summarized thus:
15. in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum benchmarks for written tests as well as for viva voice.
36. What is important in K. Manjusree2 is that the minimum marks for the interview was fixed after the interviews were over. In that context, it was observed:
(a) that the game was played under the rule that there was no minimum marks for the interview, therefore introduction of the requirement of minimum marks for interview, after the entire selection process consisting of written examination and interview was completed, would amount to changing the rules of the game after the game was played; and
(b) if the interviewers had to proceed on the basis that there were minimum marks to be secured in the interview for being considered for selection and that the marks awarded by them would have the effect of barring or ousting any candidate from being considered for selection, the awarding of marks might have been markedly different.
The above observation (b) lends credence to the submission made before us that a change in the eligibility cut off, after evaluation is done, denies the evaluator an opportunity to modulate the marks for placing the candidate in a category to which he/she, in the view of the evaluator, is entitled to be placed.
(emphasis supplied)
46. Then in paragraph Nos.52 and 53 of the report, that point of distinction (as applies in the present facts), was clearly laid down. It was found, different benchmarks at different stages of recruitment may be set at any time before that stage is reached. Here, maximum marks and not the benchmark was provided first in the Advertisement published on 05.05.2016. Only that was changed and published after due approval of the State Government on 16.08.2016. The Screening Test was held thereafter and it was followed by the Physical Efficiency Test and the Interview Test. No change of any benchmark was made at any stage. Therefore, in view of the above, we also note that the larger bench of the Supreme Court, further clarified as below:
52. Thus, in our view, the appointing authority/ recruiting authority/ competent authority, in absence of Rules to the contrary, can devise a procedure for selection of a candidate suitable to the post and while doing so it may also set benchmarks for different stages of the recruitment process including written examination and interview. However, if any such benchmark is set, the same should be stipulated before the commencement of the recruitment process. But if the extant Rules or the advertisement inviting applications empower the competent authority to set benchmarks at different stages of the recruitment process, then such benchmarks may be set any time before that stage is reached so that neither the candidate nor the evaluator/ examiner/ interviewer is taken by surprise.
53. The decision in K. Manjusree2 does not proscribe setting of benchmarks for various stages of the recruitment process but mandates that it should not be set after the stage is over, in other words after the game has already been played. This view is in consonance with the rule against arbitrariness enshrined in Article 14 of the Constitution and meets the legitimate expectation of the candidates as also the requirement of transparency in recruitment to public services and thereby obviates mal practices in preparation of select list.
(emphasis supplied)
47. Fruitful for our discussion, we may also take note of the conclusion drawn by the Supreme Court, it reads as below:
CONCLUSIONS
65. We, therefore, answer the reference in the following terms:
65.1. Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;
65.2. Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness;
65.3. The decision in K. Manjusree2 lays down good law and is not in conflict with the decision in Subash Chander Marwaha3. Subash Chander Marwaha3 deals with the right to be appointed from the select list whereas K. Manjusree2 deals with the right to be placed in the select list. The two cases therefore deal with altogether different issues;
65.4. Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ non- arbitrary and has a rational nexus to the object sought to be achieved.
65.5. Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps;
65.6. Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.
48. Coming to the different standards/scale of marks provided for male and female candidates, in the first place, absolutely no challenge was raised either in the writ petition or in this appeal to the Note appended to Rule 15 of the Excise Service Rules, as amended by the 4th Amendment Rules. Unless a specific challenge had been raised to that equalized scale of marks provided by the statutory Rule, no submission may arise and no reasoning may follow, to doubt the scale of marks adopted by the Commission, at the Physical Efficiency Test, for male and female candidates.
49. Additionally, we note, we also do not find any error in the basic reasoning of the learned single judge that Physical Efficiency Test may not be the same for male and female candidates, owing to inherent biological/genetic differences that give rise to different but not lower or higher physical attributes. The two scales of assessment may not be looked at as higher or lower medical Physical Efficiency standards. Since Physical Efficiency standards had to be applied to two distinct sets of persons, having markedly distinct physical attributes-traceable to the set to which each belongs, it was open to the legislature to prescribe an appropriate-scale to make two distinctly different physical constitutions of human beings (arising from inherent gender differences), comparable – to select the best amongst them, objectively, though a common merit list.
50. We are not impressed by the submissions advanced by learned counsel for the petitioner, on the strength of Arshnoor Kaur (supra). In that case, for the purpose of making selection to the Judge-Advocate General Branch (Judge Branch in short) for Armed Forces, against similar tests for male and female candidates, but recognizing indicator such as physical attributes of male and female candidates, separate Service Selection Boards (SSBs in short) were constituted for male and female candidates arising from those genetic differences. It resulted into separate merit lists being prepared-for male and female candidates. Dispute arose if male candidates, who had obtained lesser marks than the female candidates, may have been selected for reason of different merit lists prepared. The Supreme Court negated that submission and found-properly, a combined merit list ought to have been prepared as different of constitution of SSB for male and female candidates. Arising therefrom difference in physical attributes may not give rise to different merit lists as the nature of tests involved gave rise to identical parameters including testing 15 Officer Like Qualities, on which individual SSB evaluated male or female candidates, alike. Relevant to the present, it was observed as below :
“AS THE NATURE OF TESTS OF MALE AND FEMALE CANDIDATES IS SIMILAR, A COMBINED MERIT LIST OUGHT TO BE PREPARED
100. The argument that there is a distinction between JAG women and JAG men on the basis that they give separate SSBs and have separate merit lists is contrary to facts as there is no evidence to show that nature of tests is different in the separate SSBs. On the contrary, it is the Union of India’s own stand in the counter affidavit that they have maintained the neutrality of the examination process.
101. Upon a perusal of the record, this Court is of the view that though men and women during the JAG selection procedure appear before separate boards, yet the selection criteria for male and female candidates are not separate and only few indicators such as physical attributes are different. The conduct of separate SSBs for men and women are a necessity due to the nature of tests involved, which require close intensive physical interactions. Both male and female candidates are assessed on identical parameters. The mere existence of separate boards, however, does not extend to separate treatment of men and women candidates in law. This is apparent from the procedure and testing parameters of the fifteen (15) Officer Like Qualities considered by the SSB (as extracted hereinabove) for recruitment to the Indian Armed Forces.
102. It is pertinent to mention that male and female JAG officers do not have distinct cadres with different conditions of service. Further, in terms of the policy dated 20th July 2006 dealing with SSC appointment of women, combined merit lists are prepared for men and women in case of seniority for SSC Non-Technical and Technical members.
103. Consequently, this Court is of the view that similar combined merit list ought to be prepared.”
51. In the present case, there can arise no quarrel as to that, especially in the absence of any direct challenge raised to that prescription made by the law under the Excise Service Rules, 4th Amendment Rules, applicable to the impugned selection process. A different prescription of physical standards arising from inherent difference in genetic constitution leading to different physical attributes, may never be described as lower or higher, as the same does not arise on the strength of or for reason of reservation, but for reason of genetic differences only. That would command prescription of different scale of marks against comparable standards. For that reason, it can never be argued successfully, that lower physical standards were prescribed for female candidates, as compared to male candidates.
52. Then, in Arshnoor Kaur (supra), general directions were issued to conduct all future tests in the manner prescribed by the Supreme Court and to publish a common merit list for all (male and female) candidates. Here, the procedure adopted by the Commission is in fact consistent to the direction issued by the Supreme Court in Arshnoor Kaur (supra). The Commission scaled the physical parameters/indicators of male and female candidate and subjected male and female candidates to the same Interview Test. The aggregate marks of the Physical Efficiency Test and Interview Test led to the preparation of the common merit list. All selections have been made on that test alone. Therefore, the decision in Arshnoor Kaur (supra) rather than helping the petitioner’s case appears to support the methodology adopted by the Commission.
53. What then survives for consideration is if the Rule of reservation has been breached in providing for different cut-off marks at the stage of the Screening Test for, amongst others, women candidates, and by thereafter, allowing for their selection-as general candidates, on their overall merit, in the common merit list prepared on the strength of aggregate of marks obtained at the Physical Efficiency Test and Interview Test. Before that submission may be accepted, necessary fact pleadings should have been made in the writ petition to establish the facts fully disclosing two different cut-off being actually prescribed and applied while shortlisting male and female candidates as also that any female candidate who was selected against her general merit achieved at the selection examination had been granted benefit of the relaxed cut-off for at the Screening Test, (for reason of their gender based reservation provided to her). Unless any female candidate selected under the general/overall merit is clearly shown to have availed benefit of reservation at the preliminary/screening stage, her selection may not be challenged on a presumption that she must have availed such benefit as more number of female candidates got selected, than were contemplated by way of reservation. In absence of necessary fact pleadings, we are unable to allow that submission to be considered further. Nor, we may ourselves conduct a fishing and roving enquiry in that regard.
54. Then, the two parameters merit test was conducted by the Commission for all screened/shortlisted candidates. The common merit list has been prepared on the strength of aggregate marks obtained at the Physical Efficiency Test (maximum 60 marks) and Interview Test (maximum 20 marks). The difference of scale of marks prescribed under the Excise Service Rules (as amended by the 4th Amendment Rules), having been correctly applied, it arose by way of a chance or statistical possibility that the aggregate of marks of female candidates (generally), has been found more than those obtained by their male counterparts. Therefore, while preparing the overall (common) merit list, by way of a statistically possible result, against 81 posts reserved for female candidates, 143 got selected out of a total of 405. This cannot lead to the conclusion that more female candidates have been selected, than were entitled to.
55. Since no successful challenge arises to the preparation of the common merit list, gender or the category of reservation loses its relevance or significance. Against minimum posts reserved81, more female candidates got selected, not because of reservation provided (to lower placed women candidates), but because of higher general merit of 62 other female candidates under the Unreserved/General Open category. To the extent, they were candidates selected under the general/unreserved category, they could not be counted or considered against reservation provided. However, 81 other female candidates got selected by way of reservation provided. That principle, to us, is too far well settled and accepted and acknowledged as may not merit any further consideration. Once the candidate earns his selection/stripes on the strength of overall merit, the reservation category to which he/she may be traced, loses its significance/mark and value unless it is specifically shown that he/she had taken benefit of reservation at any stage. That is not the case here. That principle is equally applicable in the present facts.
56. We find, the decision of the Supreme Court in case of G. Kiran (supra), that has been relied by learned counsel for the original petitioners-appellants, is also of no avail. To the extent, different scale of marks was applied for male and female candidates, at the Physical Efficiency Test, for the reasons noted above, we are equally unimpressed by the submission-that by applying such different standards for male and female candidates, any relaxation had been granted for the purpose of reservation in favour of female candidates. That perceived (but not real) relaxation granted was only a method to scale of marks, inasmuch as male and female candidates remain genetically differently constituted (genetically), as may necessarily require such prescription to test them for physical standards.
57. If the submission being advanced by learned counsel for the original petitioners-appellants were to be accepted, the female candidates (as a class), would be prejudiced unfairly at all selections where Physical Efficiency Tests may be prescribed as a necessary component of the selection procedure. That itself would violate Article 14 and 16 of the Constitution.
58. Thus, we find that the selection was conducted by the Commission under the advertisement, in accordance with Excise Service Rules read with the Procedure Rules. Neither there arose any challenge to those Rules nor there survives any reason to doubt the correct application of those Rules to the selections made. Consequently, reliance placed by learned counsel for the petitioner on Amrit Yadav (supra) and Dr. (Major) Meeta Sahai (supra) is also misplaced.
59. In view of the above, the instant appeals and petitions fail and are, accordingly, dismissed. No order as to costs.
(Swarupama Chaturvedi,J.) (Saumitra Dayal Singh,J.)
April 06, 2026
Anurag/-