Vindhyavasini Tiwari And 4 Ors. vs State Of U.P.& 2 Ors.
2013 Latest Caselaw 7333 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
1. Case :- WRIT - A No. - 57576 of 2013
 
Petitioner :- Vindhyavasini Tiwari And 4 Ors.
 
Respondent :- State Of U.P.& 2 Ors.
 
Counsel for Petitioner :- K.M. Asthana
 
Counsel for Respondent :- C.S.C.
 

 
2. Case :- WRIT - A No. - 63093 of 2013
 
Petitioner :- Manjit Krishna And 16 Ors.
 
Respondent :- State Of U.P.& 2 Ors.
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
3. Case :- WRIT - A No. - 60538 of 2013
 
Petitioner :- Arvind Kumar
 
Respondent :- State Of U.P.& 2 Ors.
 
Counsel for Petitioner :- Seemant Singh, Sadanand Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. All these three writ petitions involve common facts and questions of law, hence, as agreed by learned counsel for the parties, have been heard together and are being decided by this common judgment.

2. Heard Sri K.M. Asthana, Sri Seemant Singh and Sri V.K. Singh, Advocates for the petitioners and Sri R.C. Yadav, learned Standing Counsel for the respondents.

3. Writ Petition No. 57576 of 2013 (hereinafter referred to as the "first petition") has been preferred by five petitioners, namely, Vindhyavasini Tiwari, Digvijay Nath Chaurasia, Akhilendra Pratap Singh, Krishna Deo Tripathi and Radhey Shyam Maurya. They are aggrieved by Government Order dated 03.09.2013 (Annexure-1 to the writ petition), whereby it has communicated to Director General of Police, U.P., Lucknow its approval for cancellation of recruitment, already held, though partially, for the post of Sub-Inspector (Civil Police) (hereinafter referred to as the "SICP") and Platoon Commander in Provincial Armed Constabulary (hereinafter referred to as the "PC, PAC") pursuant to advertisement published in 2011 and directing for taking further action accordingly; and, consequential order dated 24.09.2013 (Annexure-2 to the writ petition), issued by U.P. Police Recruitment and Promotion Board (hereinafter referred to as the "Recruitment Board") cancelling advertisement No. PRPV-Ek-1/2011 dated 19.05.2011.

4. The Writ Petition No. 63093 of 2013 (hereinafter referred to as the "second petition") is at the instance of seventeen petitioners and Writ Petition No. 60538 of 2013 (hereinafter referred to as the "third petition") is at the instance of six petitioners. In these petitions also the impugned orders are same as are in the first petition.

5. In all these three writ petitions, a further prayer of writ of mandamus has been sought directing respondents not to make any further advertisement for fresh selection in respect of vacancies, subject matter of recruitment of 2011, and not to fill in those vacancies on the basis of U.P. Sub-Inspector and Inspector (Civil Police) Service (5th Amendment) Rules, 2013 (hereinafter referred to as the "5th Amendment Rules, 2013") and, instead, proceed to complete recruitment pursuant to advertisement dated 19.05.2011.

6. The facts, in brief, giving rise to present dispute have been taken from first petition and are as under.

7. An advertisement was published by Recruitment Board on 19.05.2011 (Annexure-3 to the first petition) notifying vacancies of SICP and PC, PAC as under:

dz-la-

Js.kh

mifujh{kd ukxfjd iqfyl

IykVwu dek.Mj

lkekU;

vU; fiNM+k oxZ

vuqlwfpr tkfr

vuqlwfpr tutkfr

;ksx

English Translation by the Court

S.N

Category

Sub-Inspector (civil police)

Platoon Commander

1.

General

2.

Other Backward Classes

3.

Scheduled Caste

4.

Scheduled Tribe

Total

8. In the second column, recruitment procedure was also described, and Clause 2 thereof, reads as under:

^^dz-la- 2 izfdz;k ^ izkjafEHkd fyf[kr ijh{kk % 'kkjhfjd ekud ijh{kk esa lQy ?kksf"kr vH;fFkZ;ksa ls vgZdkjh izd`fr dh izkjfEHkd fyf[kr ijh{kk esa lfEefyr gksus dh vis{kk dh tk,xhA ;g ijh{kk oLrqfu"B izdkj dh 200 vadksa dh gksxh] ftlesa fuEufyf[kr rhu [kaM gksaxs& ¼1½ lkekU; Kku &100 vad] ¼2½ la[;kRed ;ksX;rk ijh{kk & 50 vad] ¼3½ rkfdZd ijh{kk & 50 vadA

U;wure 50 izfr'kr vad izkIr djus okys vH;FkhZ gh bl ijh{kk esa lQy ?kksf"kr fd, tk,axsA fo'ks"k % vgZdkjh] blesa lQy ?kksf"kr vH;FkhZ gh 'kkjhfjd n{krk ijh{kk ds fy, ik= gksaxsA** (emphasis added)

"Serial No. 2 Procedure - Preliminary Written Examination: Candidates who are declared successful in Physical Standard Test shall be required to appear in Preliminary Written Examination of qualifying nature. This examination shall comprise objective type questions of 200 marks having three parts - (1) General Knowledge - 100 marks, (2) Numerical Ability Test - 50 marks, (3) Reasoning Test - 50 marks.

Only those candidates securing atleast 50% marks in this examination shall be declared successful. Special: Qualifying, only those candidates who are declared successful in it shall be eligible for Physical Efficiency Test." (emphasis added) (English translation by the Court)

9. An instruction book was also supplied alongwith application form by Recruitment Board and therein also in para 2.5 the procedure and other conditions for Preliminary Written Test (hereinafter referred to as the "PWT") were mentioned as under:

^^izkjfEHkd fyf[kr ijh{kk%& izkjfEHkd fyf[kr ijh{kk vgZdkjh gksxhA U;wure 50 izfr'kr vad izkIr djus okys vH;FkhZ gh bl ijh{kk esa lQy ?kksf"kr fd;s tk;sxsA bu lQy vH;fFkZ;ksa esa ls izkIrkadksa dh Js"Brk ds vk/kkj ij fjfDr;ksa dh la[;k ds vf/kdre 18 xquk vH;FkhZ gh 'kkjhfjd n{krk ijh{kk esa lfEefyr gksus ds fy;s vgZ gksaxsA izkjfEHkd fyf[kr ijh{kk dk ikB~;dze ¼funsZ'k iqfLrdk fcUnq&4-1½ funsZ'k iqfLrdk esa vafdr gSA

;g ijh{kk oLrqfu"B izdkj dh 200 vadksa dh gksxh] ftlesa fuEufyf[kr rhu [k.M gksaxs&

¼1½ lkekU; Kku&100 vad

¼2½ la[;kRed ;ksX;rk ijh{kk&50 vad

¼3½ rkfdZd ijh{kk&50 vad** (emphasis added)

"Preliminary Written examination:- Preliminary Written Examination shall be of qualifying nature. Only the candidates securing atleast 50% marks in this examination shall be declared successful. Depending on merit based on the marks obtained, from amongst these successful candidates, only a maximum of 18 times as many candidates as vacancies shall qualify to appear in the Physical Efficiency Test. The Syllabus for Preliminary Written Examination (Point 4.1 of Instruction Booklet) is available in the Instruction Booklet.

This examination shall comprise objective type questions of 200 marks with the following three parts:-

(1) General Knowledge - 100 marks

(2) Numerical Ability Test - 50 marks

(3) Reasoning Test - 50 marks" (emphasis added) (English translation by the Court)

10. Here this Court finds one condition added therein that out of the successful candidates on the basis of merit, eighteen times candidates, qua the vacancies, shall be declared successful so as to participate in next stage of selection, i.e., physical efficiency test under para 2.6, i.e., Rule 15(e) of U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter referred to as the "CPR, 2008") and Rule 18(e) of U.P. Pradeshik Armed Constabulary Subordinate Officers Service Rules, 2008 (hereinafter referred to as the "PAC Rules, 2008"). In other respect, the instructions contained in para 2.5 are the same as contained in Rules.

11. The recruitment process was to undergo five stages, i.e., Physical Standard Test (hereinafter referred to as "PST"); Preliminary Written Test (hereinafter referred to as "PWT"); Physical Efficiency Test (hereinafter referred to as "PET"); Main Written Examination (hereinafter referred to as "MWE"); Medical Examination and Group Discussion. All the petitioners participated and qualified in PST, PWT and PET. The respondents however, deferred the selection process and now by means of the impugned orders they have cancelled the very Recruitment as also the advertisement dated 19.05.2011, hence this writ petition.

12. A counter affidavit has been filed in the first petition sworn by Sri Mahesh Mishra, Deputy Superintendent of Police on behalf of Recruitment Board. He stated that some of the candidates who appeared in PWT were declared fail on the basis of notice dated 01.01.2013 of Recruitment Board stating that only those candidates who would secure 40% marks in each section and aggregate 50% marks, shall be eligible for next level of selection. The candidates though had secured 50% marks in aggregate but in individual sections they had not secured 405 marks, were declared fail. This change was introduced by Recruitment Board vide notice dated 01.01.2013. The fail candidates challenged above change in selection, process in the midst of selection in a large number of writ petitions. 63 such petitions were decided by this Court vide judgement dated 25.07.2013. All those writ petitions were allowed and the penultimate paragraphs no. 72, 73, 74 and 75 of the judgment, read as under:

"72. In view of above discussion, I have no hesitation in holding that Recruitment Board did not possess power to introduce qualifying marks in PWT and this introduction is wholly without jurisdiction. It cannot be doubted, where the rules specifically provide something, nobody on administrative side, can tinker with efficacy of rule in any manner. Such a deviation on the part of selection body would be wholly unauthorised, illegal and lack jurisdiction. The qualifying marks when are prescribed in rules, over and above thereto, the selection body had no jurisdiction to make, on its own, an additional qualifying marks with respect to individual sections also, though it was not so desired by rule framing authority. When something is required to be done in a particular manner, the things have to be done strictly in accordance thereto and not otherwise. Moreover such alteration is not permissible in the midst of selection.

73. Before parting I may also add that the decision of this case in favour of petitioners will not affect the candidates already selected, so as to bring one or some of them outside the list of qualified candidates, for the reason that all those candidates admittedly have obtained aggregate 50% marks and above and, therefore, have been declared qualified. This decision only would add to the list of qualified candidates by bringing in all those who have secured 50% and more in PWT irrespective of whether in individual parts/sections they have secured 40% more or less and hence none shall be prejudiced in any manner except of having a few more competitors but then that is the consequence of application of Rule of Law.

74. In the result, the writ petitions are allowed. The respondents are directed to finalise PWT in view of discussions and observations made above, and, those candidates, who have secured, in aggregate, 50% marks and above, shall be treated to qualify the aforesaid test and shall be permitted to appear in next level of recruitment.

75. The petitioners shall also be entitled to costs, which I quantify to Rs. 1000/- for each set of writ petition."

13. It appears that some other writ petitions involving similar issues remain pending, having not been listed alongwith aforesaid bunch and, therefore, remain pending. In one of such pending writ petition no. 36383 of 2013 an ex parte interim order was passed on 11.07.2013 making observation that in public interest the respondents may take a decision to make entire recruitment afresh in the light of new scheme. It is said that in view thereof a decision was taken on 13.07.2013 to cancel entire Recruitment of 2011 and proceed to make it afresh in the light of amended Rules.

14. After the aforesaid decision, instead of proceeding further, it appears that, respondents proceeded to have a somersault on the very recruitment itself and that is how the decision to cancel the same came to be taken vide orders impugned in these writ petitions, rendering everything infructuous.

15. It is this decision of cancellation of entire recruitment (part whereof had already completed), has been assailed in these writ petitions on the ground that out of five stages of recruitment process, three were already completed, and just to give undue advantage to some unsuccessful candidates and also in the teeth of statutory provision in this regard, in a most arbitrary and illegal manner, the respondents took a decision to cancel the entire recruitment, which is perverse, illegal and arbitrary, particularly when there is no element of gross malpractices and otherwise illegalities in the selection.

16. It is admitted in the counter affidavit that pursuant to advertisement dated 19.05.2011, recruitment process commenced. All the petitioners, before this Court, have qualified in first, second and third phase of recruitment. The petitioners having qualified in PWT, participated in PET commenced on 05.02.2013, which consisted of 10 kilometers run in 60 minutes by male candidates and 5 kilometers run in 35 minutes by female candidates. All the petitioners successfully completed it.

17. However, on 18.02.2013, one candidate, Satyendra Kumar son of Sri Brijmohan Yadav while running, fell down and died. Consequently, vide Government Order dated 20.02.2013, further PET was deferred. Thereafter, statutory rules for recruitment meant for SICP and PC, PAC were amended by 5th Amendment Rules, 2013 wherein length of run is reduced to 4.8 kilometers within 35 minutes for male candidates and 2.4 kilometers within 20 minutes by female candidates.

18. The aforesaid amendment was notified on 01.03.2013 and thereafter an office memorandum was issued by Recruitment Board on 27.06.2013 to continue selection in the light of amended conditions.

19. It is said that in the light of interim order dated 11.07.2013 passed in Writ Petition No. 36383 of 2013, a meeting presided by Principal Secretary, on 13.07.2013 was held, in which Director General of Police and PAC as also the members of Recruitment Board participated. It was deliberated that since this Court has permitted them either to continue with earlier recruitment as per old rules or to conduct entire recruitment in the light of new standards, hence entire recruitment from its inception as per 5th Amendment Rules, 2013 be held and consequently, partial recruitment as also the advertisement published for 2011 be cancelled in public interest and fresh process of recruitment should commence wherein vacancies likely to occur upto June, 2015 be also included. The minutes of aforesaid meeting dated 13.07.2013 has been placed on record as Annexure-CA-8. It is said that aforesaid minutes were communicated to Recruitment Board by State Government's letter dated 07.11.2013. It is thus contended that decision has been taken to cancel an earlier Recruitment in public interest and in conformity with the order dated 11.07.2013 in Writ Petition No. 36383 of 2013.

20. The petitioners contended that decision to cancel the entire recruitment is patently illegal, arbitrary and discriminatory. There was no reason or justification to cancel the entire recruitment. The respondents for the reasons best known to them, have acted in very vagabond and whimsical manner. More than 39,000 candidates participated in PET. Only one candidate could not bear stress of running test and, due to lack of medical facilities at the site, he succumbed. Besides other reasons, the respondents themselves were responsible for the loss of his life inasmuch as, appropriate medical facilities must have been arranged by them on the field, where the candidates were to undergo running test. Recruitment was for the post of Constable, the lowest in the hierarchy of police echelon. Long duration stress, physical and otherwise, is inherent with the requirement of job and nature of duties. There ought not have been any compromise with physical standards and norms which were determined in the light of duties and conditions of service and have been continuing for decades together. The respondents however acted in a whimsical manner by not completing PET and thereafter proceeded to make amendment in Recruitment Rules and then applied the same to the ongoing selection, though the amendment of Rules was not retrospective. When on legal front, they found serious inconvenience and flaws, taking shelter of an ex parte interim order, the impugned orders have been passed though there was no valid and justified reason for canceling the entire Recruitment. There is no allegation of mal practice or otherwise irregularity in the process of Recruitment, already undergone. The ongoing Recruitment, even otherwise, was not found vitiated being in contravention of any statutory provision etc., yet two years' exercise has been set at naught, by passing the impugned orders without considering the fact that ongoing Recruitment has already consumed a good period of candidates, who have participated in Recruitment and, for the last two years, they have been working hard to clear the entire Recruitment and get appointment at the earliest so as to earn their livelihood and also serve the country as a member of State Police Force. In nutshell, it is contended that the entire exercise is wholly irrational and arbitrary and shows a total non-application of mind on the part of the respondents.

21. Learned Standing Counsel however, endeavored to defend the decision of cancellation of Recruitment on the basis of reasons and stand taken in the counter affidavit.

22. The short question up for consideration before this Court is, "whether cancellation of entire recruitment (i.e. partially completed recruitment as well as advertisement) by respondents is sustainable in law or not".

23. From the pleadings and arguments advanced before this Court, it is not in dispute that the vacancies advertised on 19.05.2011 were existing vacancies at the time of advertisement, meaning thereby they were the vacancies of earlier period, which have already occurred in point of time, prior to advertisement. The respondents, had proceeded with the recruitment process in accordance with rules of recruitment as were applicable and available on the date of occurrence of vacancies. They were governed by relevant rules as available on the date of advertisement.

24. At this stage, it would be appropriate to have a bird eye view at the relevant statutory provisions, as also the statutory rules.

25. The general police force is governed by Police Act, 1861 (hereinafter referred to as the "Act, 1861"), enacted with the assent of the then Governor General, granted on 22.03.1861, with an objective to reorganise the police and to make it more efficient instrument for prevention and detection of crime. Apparently, it is a pre-constitutional law and has continued to be operating by virtue of Articles 313 and 372 of the Constitutions as held in State of U.P. Vs. Babu Ram Upadhyay, AIR 1961 SC 751; Chandra Prakash Tiwari Vs. Shakuntala Shukla, AIR 2002 SC 2322; and, Vijay Singh Vs. State of U.P., 2005(2) AWC 1191 (FB).

26. Section 2 of Act, 1861 talks of constitution of force and provides that entire police establishment under State Government shall, for the purposes of Act, 1861, be deemed to be one police force. Section 2 authorises the State Government to lay down conditions of service of members of subordinate ranks of police force by issuing orders, subject to condition that the same are not inconsistent with Act, 1861. The procedure for framing rules is prescribed in Section 46 of Act, 1861.

27. In exercise of powers under Sections 2 read with 46 of Act, 1861, the U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 were promulgated which came into force on 02.12.2008, vide Section 1(2) thereof. The recruitment to the post of Sub-Inspector in Civil Police is thus, governed by CPR, 2008. The aforesaid Rules, 2008 have also been amended from time to time and I shall refer the same as and when that would be necessary.

28. For the purpose of Provincial Armed Constabulary (hereinafter referred to as the "PAC") the U.P. State Legislature enacted, "U.P. Pradeshik Armed Constabulary Act, 1948" (hereinafter referred to as the "PAC Act, 1948"), which is a small Act, having 16 Sections and one schedule. It was enacted to provide for the constitution and regulation of United Provinces Armed Constabulary. Section 3 thereof talks of constitution of PAC and says that there shall be raised and maintained, by the State Government, a force, to be called PAC, and it shall be constituted in one or more Companies, in such manner and for such period, as may be prescribed.

29. The provisions of Act, 1861 in so far as they were not inconsistent with PAC Act, 1948 were applied to the members of PAC vide Section 5 of PAC Act, 1948. Section 15 confers power upon State Government to frame Rules. In exercise of powers conferred under Section 15 of PAC Act, 1948, the State Government enacted, U.P. Pradeshik Armed Constabulary Subordinate Officers Service Rules, 2008, which contain provisions for recruitment and conditions of service of member of PAC in the various cadres including Platoon Commander.

30. Rule 15 of CPR, 2008 lays down procedure for direct recruitment to the post of SICP. The procedure for receiving applications is provided in Clause (a) of Rule 15 and thereafter procedure for issuing call letters is provided in Clause (b). The candidates applying for recruitment under CPR, 2008 have to undergo Physical Standard Test (i.e. "PET") [Rule 15(c)]; Preliminary Written Test (i.e. "PWT")[Rule 15(d)]; Physical Efficiency Test (i.e. "PET"[Rule 15(e)]; Main Written Examination (i.e. "MWE") [Rule 15(f)]; Medical Examination [Rule 15(g)]; and, Group Discussion [Rule 15(h)].

31. Rule 15 as enacted initially in CPR, 2008 came to be amended by First Amendment Rules, 2009, published on 02.04.2009, as corrected by notification dated 10.06.2009 in Hindi translation; by 4th Amendment Rules, 2011, published in gazette dated 14.01.2011; and, by 5th Amendment Rules, 2013, published in gazette dated 01.03.2013. However, there is no change or alteration throughout in Rule 15(d). Though in 4th Amendment Rules, 2011 there is a substitution of existing clause by new one but I do not find that in substance there is any change at all. Rule 15(d) of CPR 2008, reads as under:

^^?k- izkjfEHkd fyf[kr ijh{kk

[k.M ¼x½ ds v/khu 'kkjhfjd ekud ijh{kk esa lQy ?kksf"kr vH;fFkZ;ksa ls ,d oLrqfu"B izdkj @ vgZdkjh izd`fr dh izkjfEHkd fyf[kr ijh{k.k esa lfEefyr gksus dh vis{kk dh vk;sxhA ;g ijh{k.k 200 vadks dk gksxkA

blesa rhu [k.M gksaxs] vFkkZr 100 vadksa dk lkekU; Kku ¼lkef;d fo"k;] bfrgkl] Hkwxksy] Hkkjr dk lafo/kku] LorU=rk laxzke vkfn½ 50 vadksa dh la[;kRed ;ksX;rk ijh{kk vkSj 50 vadksa dh rkfdZd ijh{kkA U;wure ipkl izfr'kr vad izkIr djus okys vH;fFkZ;ksa dks mDr ijh{kk esa lQy ?kksf"kr fd;k tk;sxkA** (emphasis added)

'D' Preliminary Written Examination

The candidates declared successful in Physical Standard Test under Clause 'C', shall be required to appear in Preliminary Written Examination of an objective type /qualifying nature. This test will be of 200 marks.

It shall have three parts, i.e. General Knowledge (Current Affairs, History, Geography, Constitution of India, Freedom Struggle etc.) of 100 marks, Numerical Ability Test of 50 marks and Reasoning Test of 50 marks. The candidates securing atleast 50% marks shall be declared successful in the afore-mentioned examination." (emphasis added) (English translation by the Court)

32. Simultaneously, for direct recruitment under PAC Rule, 2008, it is Rule 15 which prescribes the procedure. The stages therein are a Physical Standard Test (Rule 18(c) read with Appendix-7); Preliminary Written Test [Rule 18(d)]; Physical Efficiency Test (Rule 18(e) read with Appendix-8); Main Written Test (Rule 18(f) read with Appendix-9); Medical Examination (Rule 18(g) read with Appendix-10); and, Group Discussion (Rule 18(h) read with Appendix-9).

33. This Court has seen that steps for recruitment published in advertisement dated 19.05.2011 are/were consistent with aforesaid rules.

34. For the purpose of recruitment, State Government constituted a centralized body, namely, "Recruitment Board" in exercise of powers conferred vide Section 2 of Act, 1861, read with Section 15 of PAC Act, 1948. The State Government issued a notification dated 02.12.2008 amended on 02.04.2009 so as to constitute a Recruitment Board assigning it the responsibility of recruitment and promotions of police officers of all subordinate ranks governed by aforesaid two sets of rules, i.e., CPR 2008 and PAC Rules, 2008.

35. It is also not in dispute that PWT was held in accordance with aforesaid rules and PET also commenced as per the provisions existing on the date of advertisement dated 19.05.2011. In the PET, all petitioners before this Court, completed run of 10 kilometers in 60 minutes as required vide Rule 15(e) of CPR, 2008, as it stood on the date of advertisement dated 19.05.2011 as also on the date, when, as a matter of fact, the aforesaid test was conducted.

36. In para 16 of first petition it has been stated that more than 39,000 candidates who were declared successful in PWT, participated in PET i.e., run of 10 kilometers in 60 minutes for male candidates and five kilometers within 35 minutes by female candidates. Out of 39,000 and odd, only one candidate met an unfortunate fatal consequence, inasmuch as he fell on the ground and died while undergoing aforesaid running. This fact has not been disputed by respondents in reply to paras 16 and 17 of the writ petition in paras 5 and 6 of their counter affidavit. However, it is said that State Government in order to avoid such serious incidents in future, took a policy decision, and thereby amended Rule 15(e) so as to reduce the length and time of running as 4.8 kilometers in 35 minutes for male and 2.4 kilometers in 20 minutes for female. This amendment was notified vide notification dated 01.03.2013. Rule 1(2) of 5th Amendment Rules, 2013 categorically declares that aforesaid amended rule would come into force with immediate effect. Meaning thereby the aforesaid amendment in the rules was not made retrospectively.

37. Besides the amendment made in Rule 15 there are some more amendments which admittedly have no concern with the issue in question.

38. However, the entire set of rules, copy whereof is Annexure-6 to the first petition, nowhere shows that amended rule will govern recruitment, already undergoing, in accordance with rules as applicable on the date of advertisement or that the undergoing recruitments from the stage they are, henceforth, would now be governed by amended rules. It is also interesting to notice that office memorandum dated 27.06.2013 which notified recommencing of remaining PET on 07.07.2013 provides that besides remaining candidates who have yet to participate in aforesaid part of recruitment process, even failed candidates and absentees would be permitted to complete PET, as per the amended rules, i.e., reduced length of running as also the altered period.

39. This Court is not concerned with vires of amendment made in the standard of PET by 5th Amendment Rules, 2013. The decisions to make further recruitment in the light of amended provision as also the ultimate decision, which is impugned in the writ petition cancelling the entire earlier recruitment so as to conduct the entire recruitment, afresh in accordance with amended rules, will have to be examined by considering the question, whether it was permissible for respondents to do so or not.

40. One of the well established principle of law, in the matter of recruitment and appointment, is, that recruitment procedure as was available on the date of occurrence of vacancy must be followed to fill in those vacancies unless and until changed procedure or alteration or amendment in the rules have been made retrospectively so as to govern ongoing recruitment. When a vacancy occurs, general principle is that it shall be filled in, according to the procedure applicable at the time when vacancy occurred.

41. The Apex Court in Y.V. Rangaiah and Ors. vs J. Sreenivasa Rao And Ors. AIR 1983 SC 852 =1983 (1) SCALE 296 in para 9 it was observed:

"9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Register Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules." (emphasis added)

42. In A.A. Calton Vs. The Director of Education and another, AIR 1983 SC 1143 and P. Ganeshwar Rao and others Vs. State of Andhra Pradesh and others, AIR 1988 SC 2068=1988 (Supple.) SCC 740 the same view was reiterated. Again in B.L. Gupta and another Vs. M.C.D., 1998 (9) SCC 223, the Apex Court in para 9 of the judgment held as under:-

"When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arises earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr Mehta to a decision of this Court in the case of N.T. Devin Katti Vs. Karnataka Public Service Commission. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah Vs. J. Sreenivasa Rao, P. Ganeshwar Rao Vs. State of A.P. and A.A. Calton Vs. Director of Education it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. Though the High Court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed. This being the correct legal position, the High Court ought to have directed the respondent to declare the results for 171 posts of Assistant Accountants and not 79 which it had done." (emphasis added)

43. Following the aforesaid decisions, a Division Bench of this Court (of which I was also a Member) took similar view in Ram Prakash and others Vs. Farrukhabad Gramin Bank, Farrukhabad and others (Writ Petition No. 13347 of 2001), decided on 8th May, 2007).

44. In Arjun Singh Rathore and others Vs. B.N. Chaturvedi and others, (2007) 11 SCC 605 following State of Rajasthan Vs. R. Dayal, 1997(10) SCC 419 and Y.V. Rangaiah (supra) the Court said:

"We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein. We are therefore of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly."

45. In State of Punjab and others Vs. Arun Kumar Aggarwal and others, 2007(5) SLR 237 the Court said:

"We would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature."

46. In the matter of recruitment of Head Constables in U.P. Police Force to the post of Sub-Inspector, a similar issue came to be considered before a Division Bench (presided by Hon'ble Dr. B.S. Chauhan, J., as His Lordship then was) in State of U.P. and others Vs. Ranbir Singh and others, Special Appeal No. 1372 of 1999, decided on 09.12.2004 and this Court said:

"It is a settled legal proposition that the vacancy in the promotional quota has to be filled up as per the law prevailing on the date the vacancy occurred. Reference in this regard may be made to the decisions of Hon'ble Apex Court in Y.V. Rangaiah and others Vs. J. Srenivasa Rao & Ors, AIR 1983 SC 852; A.A. Calton Vs. The Director of Educatiion & Anr., AIR 1983 SC 1143; P. Gyaneshwar Rao & Ors. Vs. State of Andhra Pradesh, AIR 1988 SC 2068; P. Mahendran & Ors Vs. State of Karnataka & Ors, AIR 1990 SC 405; and Ramesh Kumar Choudha & Ors. Vs. State of Madhya Pradesh & Ors., (1196) 11 SCC 242.

We, therefore, see no cogent reason to interfere with the judgment and the order of the learned Single Judge. However, as the matter is pending since long and some of the eligible candidates may have retired by now, their cases may also be considered for grant of the national benefits. This exercise may be completed as early as possible."

47. In view thereof, the vacancies existing in 2011 in respect whereof advertisement was published on 19.05.2011, deserved to be dealt with in accordance with rules as applicable at that time and the subsequent prospective amendment would not govern the same.

48. This is one aspect which would vitiate the order impugned in these petitions, as to to proceed for a fresh selection in accordance with 5th Amendment Rules, 2013.

49. Now I come to the second aspect of the matter.

50. It is no doubt true that the competent authority can always cancel a recruitment process at any stage but when it is challenged on the ground that decision is arbitrary, it is for the cancelling authority to show that the decision has been taken for valid reasons. The only reason assigned in this case is that this Court in an interim order dated 11.07.2013 passed in Writ Petition No. 36383 of 2013 permitted respondents to take a decision for making entire recruitment in accordance with new criteria and, therefore, the above decision was taken.

51. The defence taken by respondents, when analyzed a little in depth, I find that respondents have completely misdirected themselves by misreading the interim order dated 11.07.2013. Here the observations made by this Court in the interim order are further added with the words "but following law on the issue". It is interesting to note that respondents have not at all looked into this question whether it was permissible in law or not. They have construed the order as if this Court has given an absolute power, even to the extent of arbitrariness, to the respondents, to decide that ongoing recruitment process should be cancelled and fresh recruitment in accordance with amended rules should be held.

52. It is also worthy to notice that Writ Petition No. 36383 of 2013 subsequently came to be heard by this Court on 24.09.2013 alongwith some other cases, when it was found that the issue raised therein was squarely covered by the judgment dated 25.07.2013 passed in Writ Petition No. 1476 of 2013 (Anil Giri and others Vs. State of U.P. and others) but in view of Government Order dated 03.09.2013, since entire selection itself was cancelled, the writ petition stood dismissed as infructuous. It is in this view of the matter though ex parte interim order was allegedly followed by respondents but they did not allow the writ petition itself to be heard on merits.

53. Be that as it may, when a writ petition is dismissed, its logical effect on the interim order passed therein is, as if no interim order ever was passed and that is how no party/litigant would allow to suffer permanently on account of an interim order passed by this Court in a writ petition, which is ultimately dismissed. This issue has been considered by a Division Bench of this Court (in which I was also a member) in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007(2) ESC 987 and the Court held as under:

"An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this court in Shyam Lal Vs. State of U.P. AIR 1968 Allahabad 139, while considering the effect of dismissal of writ petition on interim order passed by the court has laid down as under:

"It is well settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order."

The same principal has been reiterated in the following cases:

(A)AIR 1975 Allahabad 280 Sri Ram Charan Das V. Pyare Lal.

"In Shyam Lal Vs. State of U.P., AIR 1968 All 139 a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the commissioner having upheld the permission which became effective from the date it was passed."

(B)1986 (4) LCD 196 Shyam Manohar Shukla V. State of U.P.

"It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal V. State of Uttar Pradesh) Lucknow, AIR 1968 Allahabad 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 (DB)."

(C) AIR 1994 Allahabad 273 Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board.

"After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning."

54. Even otherwise, it is also well settled that act of court shall prejudice none. None of the party can take shelter behind an interim order, which ultimately is not sustained since the matter, in which such an interim order was passed, itself fails and dismissed. This being the logical consequence of dismissal of Writ Petition No. 36383 of 2013, in my view, the defence taken by respondents relying on interim order, cannot sustain and the decision taken by respondents, since admitted by them is founded on aforesaid interim order, the very foundation having disappeared, the consequential decision is also bound to fail.

55. This Court also finds that respondents have taken a stand that since rules were amended by 5th Amendment Rules, 2013 by reducing the physical efficiency standard in the matter of run and some other amendments, hence they took a decision to hold recruitment afresh in the light of amended rules and this decision was taken in public interest.

56. What public interest it would have served, however, could not be clarified by respondents. Admittedly, more than 39,000 candidates have participated in PET, the third stage of recruitment test, and a large number of candidates proved their physical efficiency standard by completing rigorous running test of 10 kilometers for male candidates and 5 kilometers for female candidates. If the recruitment process would have completed as per old rules, it would have given the better physically efficient candidates to police force who have shown their strength in the more rigorous test as per the provisions applicable before 5th Amendment Rules, 2013. The candidates who have failed had no justification to ask for reappearing in the aforesaid test. The candidates who absented from participating in such test also would have to face the same consequence, unless the authorities concerned, for justified reasons, allow them to participate subsequently.

57. Be that as it may, the candidates selected through more rigorous test would be more useful for police force than those who would be selected after reduced standard. It goes beyond comprehension of any person of ordinary prudence how recruitment made with rigorous test, particularly, when the matter relates to uniform force like police, directly responsible besides other for maintenance of public law and order etc., would be less in public interest than having persons recruited with relaxed or reduced standard.

58. The respondents have also not applied their mind on the facts that earlier recruitment has already consumed almost two years and the participating candidates besides spending a good long time of their carrier making, must have also spent heavily (considering financial capacity of unemployed persons). All such expenses shall go waste without any rhyme, reason and justification. The respondents also could not give any justification if the earlier selection would have continued and for other vacancies a fresh selection in the light of amended rules would have been held, then what kind of public interest would not have been served. The police force ultimately would have been the beneficiary getting large number of recruits available for joining, particularly, when it is reeling under heavy manpower deficiency.

59. Lastly it is contended that petitioners have no locus standi to challenge the orders of cancellation inasmuch as they are not even selected candidates, hence no indefeasible right of appointment has accrued to them. They are only candidates and it is always open to employer to cancel a recruitment at any stage. The recruitment in the present case has been cancelled in the midst, hence no legal right of petitioners has been infringed.

60. As a general proposition bereft of some distinguishing niceties, the argument is quite fascinating and as a broad proposition I have no reason to express my dissent thereto but fortunately this broad proposition has several deviations also. When an action of the State is challenged being wholly irrational or arbitrary, it is for the State to satisfy the Court that action is not blatantly arbitrary.

61. The petitioners, no doubt, are candidates but they have a right to be considered for appointment. The right to be considered includes right to be considered in accordance with law. In the present case, right of consideration of petitioners in accordance with law is being denied by respondents by cancelling entire selection in the midst and this decision has been challenged on the anvil of being patently arbitrary and whimsical. Such being the challenge, onus obviously lies upon State to show that decision is not arbitrary. To this extent, the petitioners have a right to maintain this writ petition whatever little right they have, and the scope of judicial review also cannot be disputed so as to find out, whether the decision impugned in these petitions, is arbitrary or not.

62. The only defence taken by respondents to fortify impugned orders is an interim order passed by this Court and an amendment made by them in the recruitment rules that too prospectively. Both these aspects have been considered and I do not find anything in favour of respondents. No other reason for cancelling the entire selection/recruitment has come forth. In view thereof I have no hesitation to hold that the impugned orders are patently illegal and cannot be sustained.

63. At this stage, learned Standing Counsel contended that it was not only to save the life of young candidates participating in recruitment but also to provide better opportunities to the unemployed youth the Government in larger public interest has taken decision to relax standard of physical efficiency etc. and in case entire recruitment is allowed to be held under the amended provisions, it will give more opportunities of employment to unemployed youths than, if the earlier recruitment is required to be completed as per the old rules.

64. The argument though attractive but on deeper scrutiny loses its strength. One cannot forget that recruitment in question pertains to police force. The police officials must answer best standards of physical strength,endurance, stress, efficiency etc. which must be quite higher than the average common man otherwise the members of police force may not be able to perform the kind of job they are supposed to. Their job includes courage, valiant, persistent onerous physical stressed duties etc., therefore, harder standards are needed. The standard set out in pre 5th Amendment Rules, 2013 were not impossible to be achieved or such which could have been achieved only by a very few. In fact these standards have continued for decades together and well time tested. Besides the fact that large number of candidates have successfully achieved the requisite physical test as per pre 5th Amendment Rules, 2013, a document has been placed on record by petitioners showing that when such standards were sought to be criticized being extra hard and inhuman, an officer in the rank of Director General of Police in Rajasthan, who was above the age of 55 years, himself ran twice and completed 10 kilometers run in 47 and 51 minutes respectively. Instead of giving answer on paper he offered demonstration to show that this is quite reasonable. When a person above the age of 55 years can achieve it, there is no question that the candidates who are aspiring for police carrier and young, should not be able to achieve. I am not going into the merits of amendment made by 5th Amendment Rules, 2013 but my observations in this regard made above are only to the extent they were necessary for meeting rival submissions.

65. Looking to the matter from various angles and also in the light of above discussions, in my view, the impugned orders cannot sustain. The writ petitions deserve to be allowed.

66. In the result, all the three writ petitions are allowed. The impugned Government Order dated 03.09.2013 and the consequential order dated 24.09.2013 are hereby quashed. The respondents are directed to complete recruitment of 2011 for the posts of Sub-Inspector (Civil Police) and Platoon Commander (Provincial Armed Constabulary) pursuant to advertisement dated 19.05.2011, commencing from the stage it was, in accordance with rules as they stood before 5th Amendment Rules, 2013, expeditiously, but not later than three months from the date of production of a certified copy of this order before the respondents-competent authority.

67. However, the parties shall bear their own costs.

Order Date :- 09.12.2013

AK