MADHYA PRADESH HIGH COURT

                Praveenkumar Trivedi

                Vs.

                Public Service Commission

                  Misc. Petn. No. 1342 of 1986
                (P.D. Mulye and R.K. Verma, JJ.)

                19.09.1986

                JUDGMENT

P.D. Mulye, J.

1. The petitioner, who is a practicing Advocate at Indore, principally on the Labor
Side, has filed this petition under Arts. 226 and 227 of the Constitution in the matter
of selection of Presiding Officer, Labor Court, by the respondent-Public Service
Commission.

2. The petitioner, who is practicing as an Advocate since 1979 and has also worked as
Law Superintendent (Prosecution) in M. P. S. R. T. C. from 25-11-1980 to 7-1-1982
applied for the post of Presiding Officer, Labor Court as per advertisement issued by
the respondent Annex.-1 in which the minimum qualifications for the post of Presiding
Officer, Labor Court have been mentioned along with other conditions.

3. The Public Service Commission, Madhya Pradesh, advertised four posts of
Presiding Officer. Labor Court out of which two were to be selected from the general
category and one was reserved for a Scheduled Caste candidate and another for a
Scheduled Tribe candidate. Accordingly. admittedly, as per the reply of the
respondent-Public Service Commission, in all they received 75 applications out of
which 68 were from the general category. 3 were from Scheduled Caste and 4 from
Scheduled Tribe. Out of these 75 candidates, for two general posts, 57 general
candidates and for one Scheduled Caste and one Scheduled Tribe post one candidate
each from these categories were found eligible for interview as per the minimum
qualifications prescribed in the advertisement. Undoubtedly the petitioner also
fulfilled the minimum prescribed qualifications and his application was found in order.
But the respondent, vide their memo dated 18th August. 1986 Annex.-3 informed the
petitioner that the petitioner cannot be called for interview for the following reason :
HINDI MATTER 386692

4. The petitioner being aggrieved by the said memo has filed this petition to quash
Annex.-3 as he could not be prohibited from being called for the interview for the post
of the Presiding Officer, Labor Court, as admittedly the selection for these posts was
to be made by interviewing the eligible candidates.

5. In reply to the show cause notice the respondent has contended that since the
number of eligible candidates in the general category was too large viz. 57, the
Commission decided to call only those general candidates who possess First Class in
LL.B. and/or on LL.M. By following this criterion for two general posts. the
Commission called six general candidates among whom one candidate is First Class in
LL.B. and LL.M., and five candidates having first class in LL.B. No criterion has
been adopted for reserved category as the number of eligible applicants themselves
was very limited i.e. only one each in Scheduled Caste and Scheduled Tribe. Thus, in
short, the respondent-Commission has adopted a reasonable and fair criterion.
Therefore, if a candidate does not come within the criterion fixed by the Commission
for being called for interview. the Commission cannot help. Further, according to the
respondent, in the "instructions issued to the candidate" along with the application
form, it was made quite clear that the Commission will have the right to decide and
limit the number of candidates to be called for interview. Further according to the
respondents, it was clearly mentioned in the advertisement that the prescribed
Educational Qualifications are minimum and mere possession of the same does not
entitle a candidate to be called for interview, as where the number of applications
received in response to the advertisement is large and it will not be convenient or
possible for the Commission to interview all those candidates, the Commission may
restrict the number of candidates for interview to a reasonable limit on the basis of
qualifications and experience higher than the minimum prescribed in the
Advertisement.

6. Therefore, relying upon the decision reported in Omprakash v. State,1 the
respondent has contended that no illegality or arbitrariness or any mala fide act has
been committed by the respondent, as alleged by the petitioner in determining the
criterion whereby the petitioner got excluded from the list of candidates called for
interview. Further according to the respondent the advertisement has been issued
according to the requisition received from the Government and it is according to the
M. P. Labor Judicial Service (Gazetted) Recruitment Rules, 1965 of the Labor
Department. Thus, the Public Service Commission having the jurisdiction to fix a
suitable and reasonable criterion to limit the number of applicants called for interview
when the number of applications received is very large in comparison to the available
vacancies, no restriction can be placed upon this power as the petitioner has no legal
right to be called for interview and the rejection letter has been rightly issued.
7. The petitioner by his counter-affidavit dated 9-9-86 has submitted that the Public
Service Commission has been calling for interview much larger number than the
present one, as in the previous selections for the same posts 45 candidates were
interviewed. This fact was not denied or controverted on behalf of the respondent.

8. The learned counsel for the petitioner Sri G. M. Chaphekar did not dispute the
proposition laid down in the decision reported in 1978 MPU 136 (FB) (supra), but he
submitted that this decision itself has decided question No. 6 referred to it for its
opinion as under :

       "Q-6: Whether the Public Service Commission can fix any criterion other than
       those given in the advertisement on the fulfillment of which a candidate is
       eligible for appointment?
       Ans : The Public Service Commission has unfettered right to evolve its own
       method or modus operandi for selection of most suitable candidates and for that
       purpose it may fix any criterion, subject to the eligibility fixed by the Statute or
       by the Government being satisfied. The Commission will be within its rights to
       classify the numerous applications into certain categories and to call for
       interview only those candidates, who come within certain specified categories."

9. The learned counsel for the petitioner, therefore, submitted that S. 8 of the M. P.
Industrial Relations Act. 1900 deals with Labor Courts, which is as under :

        "8. Labor Courts.-(1) The State Government shall, by notification, constitute
        one or more Labor Courts having jurisdiction in such local area or areas as may
        be specified in such notification.
        (2) The Labor Court shall he presided over by a single person to be appointed
        by the State Government with the approval of the Chief Justice of the High
        Court.
        (3) A person shall not be qualified for appointment as a Presiding Officer of a
        Labor Court unless -
        (a) he has held any judicial office in India for not less than three years; or
        (b) he has held any office in the Labor Department not below the rank of a
        Labor Officer for a period of not less than five years and is a law graduate; or
        (c) he has practiced as an Advocate or a pleader in Madhya Pradesh for a total
        period of not less than five years: or
        (d) he is or has been a Presiding Officer of Labor Court constituted under any
        law.
        (4) Notwithstanding anything contained in this section any person who before
        the coming into force of this Act has been a Presiding Officer of any Labor
        Court constituted under the Bombay Industrial Relations Act, 1946 as adapted
        by the Madhya Bharat Industrial Relations (Adaptation) Act. Samvat 2006 (31
        of 1949) for a period not less than three years shall unless otherwise directed
        by the State Government, continue to be the Presiding Officer of such Court :"

10. The learned counsel for the petitioner, therefore, submitted that according to sub-
s. (3) of S. 8, which is quoted above four criteria have been prescribed for appointment
as a Presiding Officer of a Labor Court. He, therefore, submitted that when the Statute
itself has prescribed these categories which have got to be taken into consideration
while selecting candidates for the post of Presiding Officers, Labor Courts. the Public
Service Commission cannot eliminate or do away with any of the categories
prescribed therein and evolve its own category as has been done in the present case
whereby the Public Service Commission has decided to call for interview from the
general category one candidate who is first class in LL.B. and LL.M., and five
candidates having first class in LL.B. The learned counsel for the petitioner further
submitted that the Public Service Commission could no doubt restrict the number of
candidates to be called for interview from each of the categories as defined in sub-s.
(3) of S. 8 quoted above if the number for any of those categories was too large. But it
cannot give a complete go-by and ignore those candidates who are found eligible in
one or more of the categories prescribed in that section. The learned counsel further
submitted that the respondent-Public Service Commission in their reply have
deliberately not stated that out of the 57 candidates from the general category how
many candidates satisfy one or more of the requirements of the aforesaid category for
these posts.
11. The learned counsel for the petitioner, therefore, submitted that despite there being
specific provision in the Statute if any Judicial Officer has held that office for more
than three years or if a Presiding Officer of a Labor Court has been working on that
post for number of years or an Advocate or Pleader who has been practicing for more
than 5 years and especially on the Labor side having sufficient experience of the
Labor laws and despite the fact that the work of such Judicial Officer or Presiding
Officer of the Labor Court is quite satisfactory, such a person cannot be deprived of
from being called for the interview and thus being eliminated though he fulfils the
requirements of the categories specified therein merely because he has not obtained
first class degree in LL.B., by adopting a category which is not in conformity with the
Statutory requirement. It is only in the case of a person who has held any office in the
Labor Department not below the rank of a Labor Officer for a period of not less than 5
years and is a law graduate, that it is specifically provided that such a person must be
a law graduate. though of course it cannot be disputed that normally a Judicial Officer
or a Presiding Officer of the Labor Court is a law graduate.

12. The learned counsel for the petitioner, therefore, submitted that 57 candidates from
the general category who have been found eligible cannot he said to be too large or
excessive so that the Public Service Commission cannot interview these candidates
within a specified time because of the fact that the Public Service Commission will
have to devote many days in interviewing these candidates.

13. The learned counsel for the petitioner, therefore, submitted that the criterion
adopted by the Public Service Commission is arbitrary, unreasonable and unfair apart
from the fact that it is not in conformity with the Statutory requirements mentioned
above, though he did not dispute that the Public Service Commission has an unfettered
right to recommend only those candidates who are found most suitable amongst the
number of candidates interviewed by them considering the number of vacancies
required to be filled up for a particular post and that merely by selection made by the
Public Service Commission a candidate cannot claim any right to the post for which
he is selected as the Commission has only an Advisory function to perform. He,
therefore, submitted that as the petitioner fulfils the Statutory requirement, the
petitioner is entitled to be called for interview.

14. On the other hand the learned Government Advocate Sri Kulshreshta submitted
that as only two posts of Presiding Officer of the Labor Court from the General
category are to be filled in they have called six candidates which is three times more
and, therefore, the discretion exercised by the Public Service Commission in calling
only six candidates cannot be said to be arbitrary, unreasonable or mala fide as it is
within the powers of the Public Service Commission to make a preliminary selection
and restrict the number of candidates to be called for interview as has been held in the
decision referred to above on which he has placed reliance. He, therefore, submitted
that the Public Service Commission having adopted a particular criterion no valid
grounds are made out by the petitioner to interfere with the impugned order Annex. 3
in exercise of the writ jurisdiction as the petitioner's right, if any, is not infringed in
any way. He, therefore, submitted that the Public Service Commission was perfectly
justified in restricting the number of candidates to be called for interview from the
general category especially when according to the instructions issued to the candidates
this position was made quite clear. He, therefore, submitted that the petition deserves
to he dismissed on this short ground alone.

15. After hearing the learned counsel and after considering the facts and
circumstances of the case we are of opinion that this petition deserves to be allowed. It
is no doubt true as has been held in the decision reported in 1978 MPLJ136 (FB)
(supra) that the Public Service Commission has every right to restrict the number of
candidates to be called for interview on the basis of an implied power depending on
the facts and circumstances of each case. It cannot be disputed that if the number of
candidates is too large compared to the number of posts required to be filled in, the
Public Service Commission can certainly make a preliminary selection from amongst
those candidates who have applied and then call for interview only those candidates
by adopting a particular criterion. But that criterion must be in conformity with the
Statutory provisions. Sub-sec. (3) of S. 8 of the M.P. Industrial Relations Act, quoted
above, makes it abundantly clear that who is qualified to be appointed as a Presiding
Officer of the Labor Court. Therefore, the Public Service Commission contrary to this
provision cannot evolve its own criteria whereby candidates fulfilling the conditions
mentioned in that section could be eliminated from being called for interview by
completely ignoring those categories. In our opinion the 57 candidates who have been
found eligible from the general category do not appear to be too large or excessive so
that the Public Service Commission would find it difficult to interview these
candidates which will take many many days.
16. The Public Service Commission is a highly responsible body and in its internal
working can be trusted to discharge their duties with due regard to high propriety,
impartiality and fairness to all concerned. Therefore, it cannot and should not ignore
the Statutory requirement for filling up a particular post and cannot adopt a criterion
whereby candidates fulfilling the Statutory requirements are thus eliminated from
being even called for interview and should give no cause to create an apprehension in
the minds of the candidates that a particular criterion has been purposefully adopted so
that certain favored candidates may he benefited thereby, which may shake their
confidence in the procedure adopted by the Commission, as in the present case.

17. In the result, the petition succeeds and is allowed. The impugned order Annex.- III
dated 18th August. 1986 is quashed and set aside and the respondent-Public Service
Commission is directed to call all the 57 (fifty- seven) candidates found eligible from
the general category for interview including the petitioner for the post of Presiding
Officer Labor Court. Costs as incurred.

Petition allowed.

Cases Referred.

1. 1978 MPLJ 136: AIR 1978 Madh Pra 59 (FB)