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Telangana High Court
Velpula Prashanth vs The State Of Telangana on 3 May, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
W.A.Nos. 45 & 58 of 2024
COMMON JUDGMENT:
(Per Hon'ble Sri Justice Abhinand Kumar Shavili) Both these Writ Appeals are disposed of by way of this Common Judgment as the issue raised in both these Writ Appeals is one and the same.
2. Aggrieved by the orders dt.18-10-2023 passed in W.P.No.20817 of 2017, W.A.No.45 of 2024 is filed by the petitioner Nos.3 and 10 and W.A.No.58 of 2024 is filed by the petitioner No.7 in the Writ Petition.
3. Heard Sri P.V. Krishnaiah, learned counsel for the appellants in W.A.No.45 of 2024, Sri Ramesh Chilla, learned counsel for the appellant in W.A.No.58 of 2024 and Sri M.V. Rama Rao, learned counsel for the respondents in both the Writ Appeals.
4. For the sake of convenience, the facts in W.A.No.45 of 2024 are hereunder discussed.
2 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024
5. It has been contended by the appellants that they have responded to the Notification dt.31-12-2015 for the posts of Stipendiary Police Constables in various categories such as Civil, Armed Reserve (AR), Special Protection Force (SPF), Battalion (TSSP), firemen and other categories and they have participated in the selection courses, and for the post of Stipendiary Cadet Trainee Police Constable, in all the above categories, they have participated in the selection process and appeared decently well till the selections are over. As per the notification, one must participate in the Physical Efficiency Test (PET) and the PET consists a long jump, short to high jump and 800 meters running. As far as high jump is concerned, certain points were awarded for high jump. For example, if anybody clears 1.20 meters to 1.25 meters, he would be given 7.5 marks and persons who cleared 1.26 meters to 1.30 meters, they would be awarded 8.25 marks and for those who cleared 1.31 meters to 1.35 meters, 9 marks would be awarded. So the appellants were required to jump these predetermined heights. The appellants are aggrieved by the award of points for high jump. Different methods were adopted by different centers, and in some centers, those who have cleared 1.36 meters, they must be awarded higher marks but when it came to the case of the appellants, in spite of the appellants clearing higher range 3 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024 of high jump and they were awarded lesser marks, and therefore, the appellants could not get selected because of erroneous recording of readings in high jump. Due to the negligence of the respondents, the appellants were denied higher marks and consequently they could not get selected.
6. Learned counsel for the appellants had contended that when the appellants were denied appointment as Police Constables because of the erroneous recordings of high jump readings, the appellants have approached this Court by filing the present Writ Petition and the learned Single Judge of this Court was pleased to dispose of the case and directed the respondents to subject the appellants for appearing PET afresh in respect of high jump from bar 1.26 meters and in the event, the appellants succeed in the said test, the respondents are directed to consider the case of the appellants for appointment of Constables without appreciating any of the contentions raised by the appellants.
7. Learned counsel for the appellants had further contended that all the appellants have responded to the notification way back in the year 2015 and after ten years, if the appellants participate in the PET in high jump, they may not success as the ages of the appellants 4 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024 have crossed the age of performing maximum high jump. The learned Single Judge ought to have allowed the Writ Petition by directing the respondents to appoint the appellants as Police Constables based on the record which is available with the respondents.
8. Learned counsel for the appellants had further contended that the appellants have approached this Court by filing the present Writ Petition way back in 2017 itself and the learned Single Judge of this Court was pleased to grant interim direction on 24-04-2023 directing the respondents to produce the relevant record of the appellants in respect of high jump so as to enable the Court to adjudicate the matter effectively and in spite of such an interlocutory order being passed, the respondents have not produced any record in respect of appellants' performance in high jump. When records are not produced in spite of there being a direction, an adverse inference ought to have been drawn against the respondents and the learned Single Judge ought to have directed the respondents to consider the case of the appellants for appointment as Police Constable based on the record of performance being maintained by the respondents. If the order of the learned Single Judge directing the appellants to participate in PET is confirmed, at this point of time, the appellants may not be in a position to clear the said test.
5 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024
9. Learned counsel for the appellants had relied upon the judgment of the Supreme Court in Dinesh Kumar Kashyap and others v. South East Central Railway and others 1 and contended that the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State.
10. Learned counsel for the appellants had further contended that in the instant case, the State has acted in a arbitrary manner by recording incorrect readings of high jump of the appellants and when records were directed to produce, they have not produced the records. In the absence of records being not produced, an adverse inference ought to have been drawn against respondents and therefore the learned Single Judge ought to have allowed the Writ Petition by directing the respondents to consider the case of the appellants for appointment as Police Constable.
1 (2019) 12 S.C.C. 798 6 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024
11. Learned counsel for the appellants had further relied upon the judgment of the Supreme Court in A.P. Public Service Commission v. P. Chandra Mouleesware Reddy and others 2, and contended that the Supreme Court held that the law cannot be permitted to act unfairly. It cannot be arbitrary. The country is governed by a rule of law and not by men. Thus, although a mistake had been committed by the State, the same cannot be directed to be perpetrated only because the Commission will have to undertake the selection process again and particularly, in view of the fact that the State of Andhra Pradesh did not question the order passed by the Tribunal.
12. Learned counsel for the appellants had contended that in the instant case also, the State has acted in a very unfair manner by not recording the readings of high jump of the appellants, thereby, the appellants were deprived of selections as Police Constable. Therefore, appropriate orders be passed in the Writ Appeal by setting aside the order passed by the learned Single Judge in the Writ Petition and allow the Writ Appeal and further direct the respondents to consider the case of the appellants for appointment to the post of Police Constable without subjecting them to any further test in high jump. 2 (2006) 8 S.C.C. 330 7 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024
13. Per contra, learned counsel for the respondents had contended that the appellants have not participated in the selection process and having not being selected, the appellants cannot turn around and contend that the respondents have not recorded the readings of the high jump properly. Learned counsel for the respondents had contended that the persons who have participated in the selections and have taken a chance, cannot turn around and challenge the very same process. Learned counsel had further contended that the respondents have taken enough care in recording the readings of each event and the readings which were recorded in the physical events were noted on a sheet, and on which, the appellants have also attested and signed which would disclose that the recordings of readings in the PET were done in a fair and transparent manner and the appellants have also attested after noting the readings. If the readings are recorded erroneously, at that point of time, the appellants could have raised an issue about incorrect recordings of readings, but after entire selection process is over, the appellants cannot turn around and contend that the readings were recorded erroneously in high jump.
14. Learned counsel for the respondents had further contended that the selections are pertaining to the notification issued in 2015 and it is almost ten years back and now it is impossible to the 8 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024 respondents to maintain the record for 14 years and since the entire selection process is over, the records were destroyed after following due procedure.
15. Learned counsel for the respondents had further contended that there are no records except the readings recorded in a sheet and a perusal of the said sheet, which is only available, discloses that the readings recorded in high jump and all other events were noted down by the respondents and they have also taken the signatures of all the candidates on such a sheet which would mean that the appellants were aware of the readings whatever recorded and only after seeing the readings and satisfying by the appellants, the respondents have sent the sheets.
16. Learned counsel for the respondents had further contended that the entire selection process was done in a fair and transparent manner and in the absence of there being a record, the question of considering the cases of appellants for appointment to the post of Police Constable would not arise. The learned Single Judge has rightly not given a direction to consider the case of the appellants for appointment to the post of Police Constable in the absence of record. Therefore, learned Single Judge has rightly disposed of the 9 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024 Writ Petition particularly directing the respondents to conduct PET in respect of high jump for the appellants in a fair and transparent manner. Learned Single Judge though would not have directed to conduct second PET for the appellants, but in the interest of justice, directed the respondents to consider the case of the appellants for permitting them to participate in the PET in respect of high jump only and if the appellants cleared the said test, their cases would be considered.
17. Learned counsel for the respondents had relied upon the judgment of the Supreme Court in Ramesh Chandra Shah and others v. Anil Joshi and others 3, wherein the Supreme Court held that it is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome. In the instant case, the appellants have participated in the selection process, and only when they were not selected, they leveled allegations regarding not properly recording the readings of the high jump in the test.
18. Learned counsel for the respondents had also relied upon the judgment of the Supreme Court in Ashok Kumar and another v. 3 (2013) 11 S.C.C. 309 10 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024 State of Bihar and others 4, wherein the Supreme Court held that the appellants have participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate and the Supreme Court has also considered when once the candidates participated in the selection process, they cannot turn around and challenge the very same selection. Therefore, the learned counsel for the respondents had contended that there are no merits in both the Writ Appeals and the same are liable to be dismissed.
19. This Court having considered the rival submissions made by the learned counsel on either side is of the considered view that the appellants have participated in the selection process and the readings of performance in the PET were also shown to the appellants and the appellants being satisfied have attested the said sheet wherein the readings of the high jump were recorded. When once the appellants have attested the sheet wherein the recordings were already noticed, the question of interfering with the said selection process would not 4 (2017) 4 S.C.C. 357 11 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024 arise. Therefore, since the appellants have participated in the selection process, they cannot turn around that too after results are announced on the ground that the readings of a long jump event were erroneously recorded.
20. When the case was being heard, we directed the respondents to file an affidavit as to whether the records are available or not. In response to such a query, the respondents have filed an affidavit dt.07-03-2024, wherein, it was stated that the records are not available and in the absence of such records, the question of considering the case of the appellants for appointment to the post of Police Constable without there being a record would not arise. As records are not available, the question of directing the respondents to consider the case of the appellants for appointment to the post of Police Constable without there being a record would not arise.
21. In view of the law laid down by the Supreme Court in Ramesh Chandra Shaw's case (3 supra) and Ashok Kumar and another's case (4 supra), the question of considering the cases of appellants for appointment as Police Constables without subjecting them to PET would not arise in the absence of any record to prove that the appellants have cleared the higher readings in a high jump event.
12 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024 The courts cannot give any direction to consider their cases for appointment as Police Constable that too without subjecting the Physical Efficiency Test (PET). In the instant case, the learned Single Judge has rightly directed the respondents to permit the appellants to participate in the high jump event within four weeks and if they cleared the said test, then their cases can be considered. Therefore, this Court is not inclined to interfere with the impugned order of the learned Single Judge.
22. Accordingly, both the Writ Appeals are dismissed. No costs.
23. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.
_______________________________ ABHINAND KUMAR SHAVILI, J _________________________________ NAMAVARAPU RAJESHWAR RAO, J Dt.03-05-2024 Kvr