The Allahabad High Court has refused to interfere in the matter of women being selected on more than the reserved posts in the Excise Constable Recruitment, 2016.
A Single-Judge Bench of Justice Saurabh Shyam Shamshery observed that selection of female candidates more than their reserved quota of 20 percent was also not arbitrary or erroneous.
The High Court passed this order, while hearing a petition filed by Pramod Kumar Singh and five others.
The petitioners said they participated in recruitment process to the post of ‘Excise Constable’ according to selection procedure prescribed under Uttar Pradesh Direct Recruitment to Group ‘C’ Post (Mode and Procedure) Rules 2015 in pursuance of an Advertisement (09(2) / 2016) issued by UP Subordinate Service Selection Board. Vacancies were notified with following reservations i.e 203 Unreserved, 109 Other Backward Class, 85 Scheduled Caste and 8 Scheduled Tribes.
So far as horizontal reservation was concerned following reservation was provided i.e 08 for Dependents of Freedom Fighter, 20 for Ex Army Personnel and 81 for women.
In above referred selection process, a qualifying nature Screening Examination was held on November 25, 2016. Physical Efficiency Test were held from February 16, 2021 to March 20, 2021 and result thereof was declared on August 17, 2021.
The petitioners, who belonged to OBC category, remained successful in the physical efficiency test. In anticipation that they would not be selected in final merit list, they approached the Court on March 10, 2022 by way of filing the writ petition and soon thereafter on 15.3.2022 final result was declared and as expected they could not find place in the merit list.
According to advertisement, maximum number for Physical Efficiency Test was 60 whereas interview was of 40 marks, however, State Government by an order dated 10.8.2016, granted approval for allocation of marks for interview from 40 marks to 20 marks. This approval is not under challenge.
Criteria for male and female candidates for physical examination was determined on different yardstick and was specifically mentioned in the advertisement.
The Court noted issues for consideration is that:
(a) Whether challenge to Rules of a recruitment process at instance of unsuccessful candidates would be permissible?
(b) Whether different set of criteria/yard stick for Physical Efficiency Test for male and female candidates has allowed arbitrariness being violative of Article 14 of the Constitution?
(c) Arbitrariness if any, has resulted into a anomaly which lead to selection of 143 female candidates i.e much more than their 20% reserved quota of 81 seats?
Ashok Khare, Senior Advocate has argued that petitioners approached the Court before final result was announced, therefore, they were before the court during the game was on and have challenged the criteria of different yardstick for physical efficiency test for male and female being arbitrary. Final result was announced during pendency of this writ petition also been challenged by way of amendment. They are aggrieved that 143 female candidates are selected much beyond to their 20% quota (81 seats) and it is an eventuality which appears after the final result, as expected by the petitioners and therefore this petition was filed even before final result was announced, therefore, writ petition still maintainable at instance of the petitioners not withstanding being unsuccessful candidates.
Senior Counsel appearing on behalf of respondents and other Advocates for other respondents have opposed above submission that it is settled law that after participation in recruitment process up to the final stage, it is not open for an unsuccessful candidate/ candidates to challenge the criteria/rules of selection.
The Court observed that in case the petitioners have participated in the recruitment process with open eyes, having complete knowledge of different criteria of physical efficiency test for male and female, however, when they anticipated likely to be unsuccessful in final result, they approached this Court just before declaration of final result, challenging the entire notification as well as criteria of physical efficiency test, therefore, in view of above judgments and law on issue, petitioners are stopped from challenging recruitment process as well as physical efficiency test being different for male and female after they have participated therein with open eyes. Their act of turn around to question criteria of recruitment process is therefore impermissible. Accordingly, issue no1 is decided against the petitioners.After the decision on Issue no (a), there is no need to consider issue no (b) and (c), which are connected to each other.
In regard to issue no (b) and (c), the Senior Counsel on behalf of petitioners submitted that there was discrimination between male and female candidates in respect of their respective criteria for physical efficiency test being different and it was comparatively easy for female candidates to score more marks in comparison of male candidates and since a consolidated merit list was prepared, female candidates have marched over male candidates by big numbers of 143 seats, i.e much more than their reserved quota of 81 seats.
In case of different yardstick for male and female candidates, there ought to be a separate merit list for male and female and number of selected female candidates ought to have restricted to their reserved quota i.e 81 seats and no more, however common consolidated merit list has led to arbitrariness and it had adversely affected the male candidates such as petitioners who were not able to find place in final select list, whereas female candidates had taken advantage, therefore, Article 14 of the Constitution was violated.
Above submissions are vehemently opposed by Siddharth Singhal, counsel for the Subordinate Services Selection Board that selection to the post in question are governed by Uttar Pradesh Excise Constable Drivers and Liquor Superintendent Service (5th Amendment) Rules, 2016. Rule 15 of said Rule provides that selection shall be conducted on the basis of rules known as Uttar Pradesh Direct Recruitment to Group C Post (Mode and Procedure) Rules, 2015. Rule 15 of Rules 2015 further provides criteria for physical efficiency test as contained in the 4th Amendment Rules of 2008 shall stand included in 2016 Rules. The criteria for male and female are on different yardstick details thereof were part of advertisement and also mentioned in earlier part of this judgment. The different criteria are based on basis of different physical ability of a male and a female.
Counsel for respondents also submitted that criteria for physical efficiency test was challenged on the ground of being arbitrary however the above referred specific rule was not challenged. The criteria was not based on an arbitrary classification among male and female rather legislature has objectively fixed different criteria for male and female to determine their respective physical efficiency on the basis of their performance in running, long jump and cricket ball throwing and different yardsticks have a basis keeping in view difference in their normal physical strength.
The Court further observed that the ground of arbitrariness appears to be baseless on face of it and as it is raised without considering the ratio behind fixing of different yardsticks for physical efficiency test for male and female.
The challenge to the criteria of running of distance and time being different of male and female as well as in regard to other events such as Long Jump and cricket ball throwing are without visualizing that even in international games such recently concluded Common Wealth Games, the fastest runner for 200 meters amongst male and female, there was a difference of running time i.e for male Gold Medalist, it was 19.08 seconds, whereas for female gold medalist it was 22.02 seconds i.e a female runner has taken more time 200 meters in comparison to male runner.
Similarly, in long jump, gold medalist (male) had jumped 8.41 meters, whereas Gold Medalist (female) had jumped 7.00 meters, i.e less than male athlete. Even in cricket, the area of the field is lesser when females play in respect of the area when male players play. The above referred difference of criteria of physical efficiency test is based on physical strength of a male and a female as in a number of research papers it has come that in a normal situation male has more physical strength than her female counterpart. The argument to challenge the criteria of female for physical efficiency test is not only without any legal basis but is also against women empowerment.
In the recruitment, females have succeeded in huge numbers and it appears that unsuccessful male candidates are not able to cope up with the fact that females have overnumbered them in merit. It is an example of ‘male chauvinism’ which is unacceptable in twenty-first century 22. In view of the above discussions, the arguments against different criteria for male and female candidates for their respective physical efficiency test are not only baseless but unreasonable also, therefore, the argument of any arbitrariness is rejected.
“Since there is no arbitrariness in fixing different yardsticks in the selection process, therefore, selection of female candidates more than their reserved quota of 20% is also not arbitrary or erroneous. In Saurav Yadav & anr Vs State of Uttar Pradesh & Ors, (2021) 4 SCC 542, it has been categorically held if number of female candidates have satisfied their quota and have entered into general list, on their own, merit, then separate list of women candidate is not required.
Therefore, submissions of counsel for petitioners are rejected and the above referred three issues are accordingly decided against the petitioners and in favour of the respondents and selected female candidates”, the Court observed while dismissing the petitions.
The Court said that, before coming to a final conclusion on the basis of above discussion, it would be apposite to state that: “Women empowerment can make the society powerful”.