Chandresh Kumar vs State Of U.P. And Others
2015 Latest Caselaw 235 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 9
 

 
Case :- WRIT - A No. - 69580 of 2005
 

 
Petitioner :- Chandresh Kumar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Sandeep Srivastava,N.L. Srivastava
 
Counsel for Respondent :- C.S.C.,V.K. Rai
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri Sandeep Srivastava, learned counsel for the petitioner and Shri Piyush Shukla and Shri R.N. Pandey, learned Standing Counsels for the respondents.

By means of present writ petition, the petitioner has prayed for following reliefs:-

"(a) a writ, order or direction in the nature of certiorari calling for the record of the case in respect of the selection made for the posts of Constables in pursuance to the Advertisement published in daily newspaper 'Dainik Jagran' dated 6.1.2005 and quash the same.

(b) a writ, order or direction in the nature of mandamus directing the respondents to compare and re-examine the copy oft he petitioner with other selected O.B.C. Candidates.

(c) any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case and;

(d) award cost of the petitioner to be paid to the petitioner."

By order dated 23.9.2014 the following prayer was also added in the relief clause:-

"(bb) issue a writ, order or direction in the nature of mandamus directing the respondents to select and appoint the petitioner as Constable on the basis of marks obtained by the petitioner in the written examination, physical test and interview."

Brief facts giving rise to the present writ petition are that the petitioner was a candidate for selection on the post of Constable in Civil Police and had applied in pursuance to the advertisement dated 16.1.2005 published in 'Dainik Jagaran' inviting applications for appointment of 4453 vacancies of the Constables. The dispute at hand relates to the District of Allahabad. The petitioner belongs to Other Backward Castes (OBC) and at the time of filling up the form the petitioner was studying in B.A. Part-II and as such fulfilling all the essential qualifications for the said post. Subsequently through corrigendum 125 posts of Constables were increased. As per the advertisement the physical tests were held from 24.2.2005 to 10.3.2005. The physical test was of 100 marks. It is stated that the petitioner was given 96 marks out of 100 and as such he was included in the select list. Subsequently the petitioner was called for written test on 20.3.2005, which was of 50 marks and he was declared successful in the written examination. Finally the petitioner was called for interview on 28.6.2005 and the final result was declared on 7.7.2005 in which the name of the petitioner did not find place. It has been averred in the writ petition that in the present matter the respondents had not adhered to the reservation policy in true sense and out of 425 seats, 213 were for general, 114 for OBC, 89 for SC and 9 for ST. The contention of the petitioner is that while making the selection the horizontal reservation for dependents of ex-servicemen and the dependents of freedom fighter had been wrongly applied by the respondents. It is submitted that against 2% horizontal reservation under OBC category, out of 114 the respondents had selected 7 candidates giving them the benefit of dependent of ex-servicemen and three candidates being the dependent of freedom fighter. It is relevant to mention here that the subject selections were made district wise and the petitioner had applied for district Allahabad.

After the selection, massive litigation took place throughout the State of U.P. The same controversy had also come up for consideration before this Court in Writ Petition No.2809 (S/S) of 2005 (Harendra Singh v. State of U.P. & Ors.) reported in 2005 (6) AWC 6161 (LB) filed by unsuccessful candidates, which was finally decided on 23rd August, 2005. In that writ petition the petitioners had challenged the recruitment process on various grounds namely malpractice, non-adherence of reservation policy, nepotism etc. In the said writ petition the Court has considered the selection, which took place for District Meerut, Moradabad, Budaun, Etah, Fatehgarh, Mainpuri, Etawah, Jhansi, Allahabad, Sonbhadra, Azamgarh, Gazipur, Deoria, Gonda and Sitapur. The Court had summoned the complete record and also considered the vertical and horizontal reservation of each of the district. Finally the writ petition was dismissed by judgment dated 23rd August, 2005, the relevant paragraphs of which are reproduced hereunder:-

"25. In view of this situation, the allegation of the Petitioners, that increase of number of the O.B.C. category candidates is the result of some bungling is without any basis. The learned Counsel for the Petitioners has argued that it was mandatory for the opposite parties to declare the result of the written test in view of the judgment in the case of Krishna Yadav v. State of Haryana, 1994 (4) SCC 165, but in that case, the Supreme Court in view of the facts of the case at the time of quashing of the selection had laid down certain guidelines for the purpose of that selection only. Since, there is no procedure for declaration of the marks of the written test before the interview, it cannot be said that in the instant case there was any illegality in following the prescribed procedure. The learned Counsel for the Petitioners has further submitted that in Roshan Lal v. Union of India and Ors. AIR 1967 SC 1889 and Dr. Kailash Nath Mishra v. State of U.P. and Ors. , it was held that the condition of the advertisement is binding on the authorities if, those were declared before the selection. In several writ petitions a plea has been taken that there was a condition in the advertisement that there will be a question-paper for the written test but at the time of written test no question paper was provided. At the same time, it is admitted that the questions were written on the Blackboard.

26. Therefore, in the instant case, I do not find any such condition of the advertisement or the procedure for selection declared before the date of selection, which has not been followed.

27. In all other writ petitions pertaining to district Gonda, I find that more or less the same grounds have been taken and same instance of irregularities in the selection process have been stated. In view of the reasons given in the aforesaid discussions, I am of the view that all those reasons need not be repeated again and again.

28. In Writ Petition No. 3335 (S/S) of 2005, the Petitioners have alleged that one Dharmendra Singh son of Shri Ran Vijay Singh has been awarded 94 marks instead of 74. This averment is without any basis. The result of physical test has been prepared before the selection committee and every candidate was required to obtain only 50% marks to qualify the physical test in each category separately. Dharmendra Singh son of Shri Ran Vijay Singh is a candidate who has not been selected as is clear from the select list. In this writ petition, it is also alleged that against 100 posts reserved for O.B.C. category 119 Yadav candidates have been declared successful. In view of the reasons given above, this argument has no force because the number of Yadav candidates was greater than the number of other caste candidates and because of large number of Yadav candidates, the number of Yadav candidate in O.B.C. category is larger than the number of other caste category. In other writ petitions one more averment has been taken that at the time of physical test, the marks were given by using pencil and thereafter, arbitrarily the marks have been awarded to the candidates of their own choice. This averment has been denied by the opposite parties by producing the original mark-sheet, which bears the signature of each and every candidate. In most of the writ petitions, one averment has been made that the selection process should be quashed because of more number of Yadav candidates being selected. The opposite parties have explained in the counter-affidavit that there were 400 vacancies in recruitment Center, Gonda and the category wise vacancies are as under:

(1) Unreserved

....

(2) O.B.C.

....

(3) Scheduled Castes

....

(4) Scheduled Tribes

....

29. The following candidates were selected as per provisions under Section 3 (6) of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 referred to above:

(1) General Category

....

(2) O.B.C. Category

....

(3) Scheduled Castes

....

30. It is also mentioned that out of 6,727 O.B.C. category candidates, 3,773 candidates were found physically fit. Out of these candidates 197 O.B.C. category candidates were selected and in this figure 142 Yadav candidates have been finally selected. This result is because of the reason that more than 50% Yadav candidates are the applicants in the O.B.C. category.

31. In order to ascertain as to whether the same procedure has been followed in the entire selection in all the 15 districts or not? the record of all the 15 districts have been summoned and I have found that the result of the selection has been prepared in accordance with the prescribed procedure. The Rules of Reservation have been followed in accordance with the settled law. The number of reserved category candidates has increased because most of the reserved category candidates have occupied merit seats after securing cut off marks required for qualifying in the merit list.

32. I do not find any arbitrariness, nepotism or favourtism or any mal-practice in conducting the selection of the police constables in any of the district in which the vacancies were notified. It is only unsuccessful candidates who have filed various writ petitions without impleading the successful candidates who have already joined after the declaration of the result under misconception that there was some bungling in the selection process after seeing the number of more Yadav candidates in O.B.C. category candidates and after noting certain typographical errors in preparation of the select list as discussed above. Since, the arbitrariness, favourtism and nepotism have not been proved, the writ petition for quashing the selection process or for giving appointment as prayed by the Petitioners or for conducting C.B.I. enquiry cannot be entertained.

33. In view of the above, all the writ petitions are dismissed."

It is relevant to mention at this stage that for the other districts the State Government found that there were certain malpractices in the selection process. Thereafter, the State Government vide Government Order dated 8.11.2007 had cancelled the various appointments of Constables in the State and constituted a High Power Committee to enquire into the matter and finally on the recommendation of the High Power Committee the State Government had cancelled the recruitment. Consequently, the appointments of more than 18,700 personnel were cancelled vide order dated 18.09.2007 and 30.09.2007. A large number of writ petitions along with leading Writ Petition No.45645 of 2007 (Pawan Kumar Singh v. State of U.P. & Ors.) were filed before this Court and the Court had allowed all the writ petitions vide order dated 8.12.2008, the operative portion of which are reproduced hereunder:-

"121. The aforesaid chart would show that out of about 22,000 personnel selected across the Board, only 40 were detected to have inducted with less than the minimum prescribed standards of physical measurement. It comes 0.18 percent. In the chart annexed as aforesaid, the difference in height which has been noted at some places is between 0.1 to 0.5 centimetres less than the prescribed minimum height. This percentage was negligible.

122. In the aforesaid circular dated 29.6.2007 the DGP had also required the committees to scrutinize the training sheets in the following manner.

"Training sheet of a recruited constable - During the course of the training, training sheets regarding physical efficiency of these recruited constables are drawn up by the Institute at the training centre. They are also subjected to monthly/quarterly/final written tests. Kindly ensure that their training sheets are correctly filled up and answer sheets concerning their written tests are properly evaluated. These training sheets and the copies of the written tests may be summoned by the Enquiry Committee for perusal. If any constable fails in the examination or does not have minimum qualification, such a matter be immediately referred to the Enquiry committee."

123. In pursuance of the aforesaid, even in the training sheets of monthly, quarterly and final test, nothing adverse to the petitioners was found. The allocation of marks for the recruitment indicates that the main requirement of a constable is his physical proficiency and endurance. As already noted in the earlier part of the judgement, 100 marks were fixed for physical under different heads such as sit up, chinning up, cricket ball throw, distance running etc. and to qualify in the physical test, the candidates had to secure more than 50% marks. Admittedly, the petitioners secured more than 50% in the respective physical test.

124. The second requirement was mental aptitude which was tested in the written test which had a maximum of 50 marks only and bench mark to succeed was fixed at a meagre 33% only. All these petitioners also cleared the second requirement.

125. Interview carried only 20 marks without any qualifying mark, meaning thereby, that even if a candidate secures one mark and if otherwise he had cleared both the tests, he is bound to be selected according to his merit. These 20 marks for interview were further divided under different heads. Five marks were for educational qualification and 15 marks for personality and mental proficiency. Checking of mark sheet was more of ministerial job and the remaining 15 marks with regard to personality and mental proficiency could be examined even in groups. It has to be kept in mind that constables do not require any special skill which has to be minutely adjudged. Main requirement of physical prowess and endurance have already been tested twice over. A glance was sufficient for judging the personality. It is often said in the Uniform circles that 'foot solider' as they say 'is best who is incapable of discerning good from bad orders' of their Commanders.

126. An identical issue arose before the Apex Court in the case of Sadananda Halo Vs. Mumtaz Ali Sheikh and others [2008 (3) J.T. 74] where large number of candidates were interviewed in groups and the Assam High Court after fixing a criteria that not more than 300 candidates could be examined in interview on a single day, quashed the selection. The Apex Court set aside the judgement finding that in an interview for constables, there was no requirement of testing their administrative or management capacity and that was only necessary to test their physical endurance, fitness and smartness in appearance.

127. No doubt, there was infraction of the circular, it would be inconsequential in these circumstances, especially for those candidates who had already secured more than the marks of the last selected candidate. Thus, in the opinion of the Court, deviation from the direction of the circular, would not be fatal to the present selection.

128. The contention that the trend of awarding higher marks in interview to those candidates who had secured less marks in physical test and vice-versa indicates that it was a predetermined exercise. In the opinion of the Court, as already noted in the earlier part of judgement, this trend was common even to other recruitment covered by different enquiry reports which were saved, including enquiry no. 34 which deals with the second recruitment of civil police at Sitapur.

129. In view of the discussions above and the findings recorded thereon, this and the connected writ petitions, succeed and are allowed. The various Government Orders cancelling the recruitment by various Recruitment Boards and the consequential orders terminating the appointment of the candidates are also quashed, however, subject to the observations made hereinabove. In the circumstances of the case, no order as to cost."

Aggrieved with the order dated 08.12.2008, the State Government had preferred Special Appeal No. 244 of 2009 (State of U.P. through Principal Secretary (Home) Vs. Pawan Kumar Singh) and other connected matters, which were dismissed vide judgment and order dated 04.03.2009. The operative portion of the same is reproduced herein under:-

"The Court has also taken notice of the fact that a large number of candidates have already put in few years of services and some candidates are undergoing training, who were being paid stipend during the training and as per Training record they were found fit for retention in the Police Department and and they were expecting regular appointments/postings after successful completion of their training. There are also some candidates who were merely awaiting formal orders to undergo training, thus, in such circumstances applying the ratio laid down by the Apex Court in the case of Inderpreet Singh Kahlon and others Vs. State of Punjab and others, (2006) 11 SCC 356 that the State Government and the High Court must make a serious endeavour to segregate untainted candidates from tainted ones. Although in the present case, the task may be certainly difficult one, but it cannot be an impossible task. Thus, while following the ratio laid down by the Apex Court in the case of Inderpreet Singh Kahlon (Supra), it would be appropriate to direct that the State Government to constitute Scrutiny Committees to examine case of each candidate separately on its merit at each centre. If the selection of a candidate after the scrutiny is found untainted and if he has been selected in accordance with the instructions after following the prescribed procedure, administrative circulars, administrative directions and fulfils all the eligibility conditions, his case shall be put in the untainted category and he shall be allowed to continue in the services or the training, as the case may be. After scrutiny, the candidates who are found to be tainted ones, they shall be weeded out by declaring their selection invalid. In such cases opportunity of hearing may be afforded to the candidate as per observations of the Hon'ble Apex Court in Inderpreet Singh Kahlon's case (Supra), reliance upon which has been placed by both of us. This Bench is of the view that the liberty may be given to the State Government to segregate Tainted ones from the untainted ones and only then appropriate action be taken.

For the discussions and observations made hereinabove, though I agree with the conclusions of my respected Senior Brother to dismiss the Special Appeals, but I respectfully differ on the above indicated findings recorded by my respected Senior Brother. Accordingly, I have recorded my own views in this judgment alongwith the directions to segregate tainted candidates from untainted ones applying the principles of the Hon'ble Apex Court laid down in Inderpreet Singh Kahlon's case (Supra).

The Special Appeals are dismissed with above observations."

Thereafter, the State Government had filed the special leave petition before the Hon'ble Apex Court. On the direction of the Hon'ble Apex Court dated 25.05.2009, the State Government had issued the Government Order dated 26.05.2009 by which all the Constables were allowed to re-join on the provisional basis and finally the special leave appeal was withdrawn by the State Government, therefore, the direction issued by this Court in Pawan Kumar Singh (supra) had attained finality and various Government Orders cancelling the recruitment by various recruitment boards and consequent orders terminating the appointment of the Constables were quashed, meaning thereby the order passed by this Court in Pawan Kumar Singh's case (supra) had attained finality, means all the police personnel those who were recruited in the year 2006 were deemed to be in service and their termination orders were no more in existence.

Therefore, it is apparent that this Court while considering the case of Harendra Singh (Supra) had dismissed the writ petitions of non-selectee candidates, whereas in the case of Pawan Kumar Singh (Supra) the writ petitions filed by persons those were selected and aggrieved with the cancellation of their appointment were allowed by this Court. Against which the State Government preferred special appeal, which was also rejected and finally the State Government challenged the same by means of special leave petition, which was also eventually dismissed as withdrawn.

Therefore, at this stage, it is clear that the selection process, which had commenced in the year 2005 had been upheld by this Court in Harendra Singh (Supra) and Pawan Kumar Singh (Supra). It is also important to mention here that while considering the grievance of selected and non-selected candidates the Court had come to the conclusion that the entire selection process was made in a meticulous way and as such there was no infirmity and the reservation rules were also adhered in the selection process. Therefore, at this stage, taking a technical view that there is certain deviation in reservation cannot be permitted.

All the selections, which were made throughout the State had been upheld by this Court and has already attained the finality, therefore, at this stage, this Court is not inclined to interfere in the matter under Art.226 of the Constitution of India.

The writ petition is dismissed.

Order Date :- 30.4.2015

SP/

(Mahesh Chandra Tripathi,J.)