Mewa Singh Dhaliwal vs Union Of India & Ors.
2012 Latest Caselaw 141 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.133/2012

%                          Date of Decision: 09.01.2012

Mewa Singh Dhaliwal                                         .... Petitioner

                      Through Mr.K.K.Sharma, Advocate


                                  Versus

Union of India & Ors.                                    .... Respondents

                      Through Mr.Ravinder Aggarwal, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA


ANIL KUMAR, J.

*

1. The petitioner has impugned the order dated 21st October,

2011 whereby the petitioner‟s request to give him one more chance to

qualify the FPETs was declined.

2. In the impugned order dated 21st October, 2011, it is

stipulated that the petitioner had joined BSF on 31st December, 2001

as Constable (GD). Later on, he qualified for SI(DE) competitive

examination and joined SI(DE) batch No.51 at STC BSF, Yelahanka,

Bangalore on 27th January, 2010 after tendering technical

resignation from 128 Bn BSF.

3. It was further held that during the basic training, the

petitioner could not qualify any of the FPET tests. During the final

test conducted by a Board of Officers w.e.f. 22nd to 29th November,

2010 he had failed. Though a retest was conducted however, the

petitioner failed to qualify the FPETs, and was, therefore, relegated

for three months and given intensive physical training.

4. After the intensive physical training, the petitioner was again

tested thrice on 24th March, 2011, 1st April, 2011 and 25th May,

2011. But the petitioner could not qualify the physical efficiency test

entailing the issuance of a show cause notice dated 19th September,

2011 proposing to cancel his appointment to the rank of Sub

Inspector under Clause 7 of the appointment offer and to revert him

back to the rank of Constable, which he was holding prior to the

appointment to the rank of Sub-Inspector, under the provision of FR-

13.

5. The petitioner had replied to show cause notice dated 23rd

September, 2011 seeking one more chance to qualify the FPETs.

6. The reply to the show cause notice was considered by the

respondents, and no justification was found to allow the petitioner

one more opportunity. Consequently, the prayer of the petitioner for

one more chance to qualify the FPET was rejected holding that due to

his poor physical standards his appointment to the rank of Sub

Inspector is unsustainable and therefore, it was cancelled under

Clause 7 of the appointment offer. The petitioner was reverted to the

rank of Constable prior to the appointment to the rank of Sub

Inspector as per provision FR-13 as his lien to the said rank was

found to be still alive. The petitioner was therefore, reverted back to

the rank of Constable and technical resignation from 128 Bn. BSF

was revoked to enable the petitioner to join there. It was also held

that the period spent by the petitioner on training would be treated

as period spent on duty and therefore necessary orders were passed.

7. The petitioner has impugned the order declining his request for

one more chance to qualify the physical tests contending that the

reason that he could not pass the race test of 3.2 kms. in 17.25

minutes is on account of expiry of his father on 3rd December, 2009.

Though his training had commenced 15 days thereafter w.e.f. 15th

January, 2010. According to the petitioner, he was mentally

disturbed which affected his performance. The petitioner also

attributed his poor performance to the fact that no leave was granted

to him. According to the petitioner, he was granted annual leave after

17 months, only after he was re-tested and thereafter relegating his

training by three months.

8. The petitioner has also impugned the order reverting him to

the post of Constable on the ground that he had secured a total of

324.5 marks and yet he was declared „fail‟ whereas the other 16

candidates who secured lesser marks were declared „pass‟. The

petitioner has also claimed that he cannot be reverted to the post of

Constable as he had had rendered over 10 years of clean and

unblemished service as a Constable in the BSF.

9. This Court has heard learned counsel for the petitioner and

learned counsel for the respondents, Mr.Ravinder Aggarwal,

Advocate, who has appeared on advance notice. The plea of the

petitioner that though he had secured 324.5 marks he had been

declared as failed, while the other 16 candidates who secured lesser

marks had been passed, is not sustainable in the facts and

circumstances. Perusal of the final score sheet reveals that the

petitioner had secured only 18 marks in FPETs out of 30 marks. All

the other candidates who have been shown below the name of the

petitioner have scored more marks in FPET. Perusal of the FPETs

marks reveal that some of the candidates have secured 30 marks out

of 30, and that the candidates who are below the petitioner and who

have been declared successful have secured 24 or above marks in

FPET. In the circumstances, the plea of the petitioner that though

he had secured 324.5 marks in total and yet he had been declared

failed does not entitle him for the relief claimed by him as he had

failed to qualify the FPET.

10. Learned counsel for the petitioner is also unable to show any

right of the petitioner to avail leave before undergoing retest. The

petitioner was retested thrice on 24th March, 2011, 1st April, 2011

and 25th May, 2011 whereas his father had died on 3rd December,

2009. Retesting of the petitioner was almost after 15 months and

there is no approximate relation between the death of father of the

petitioner and the performance of the petitioner in the retest.

11. This also cannot be disputed that the petitioner was put to a

final test before relegating him for three months and given intensive

physical training w.e.f 22nd to 29th November, 2010. The relegation of

the petitioner for training after he failed in the retest and giving

intensive physical training to him also cannot be faulted by the

petitioner on any of the grounds mentioned in the petition.

12. The petitioner failed thrice even after intensive physical

training and in the circumstances, if the respondents have denied yet

another chance for retesting the petitioner and has reverted him to

the rank of Constable as he was prior to his appointment to the rank

of Sub Inspector as per provision FR-13 as his lien to the said rank

was still alive, the action of the respondents cannot be faulted on any

of the grounds raised by the petitioner.

13. The learned counsel for the petitioner in the last has

contended that the petitioner‟s plea of being given another chance

and being retested be considered as a mercy petition and this Court

should exercise its power in the facts and circumstances. Even this

plea of the petitioner cannot be accepted. The relief granted by the

Court must be tenable within the framework of law and should not

be based on misplaced sympathy, generosity and private

benevolence. The Supreme Court had dealt with this aspect in the

case of Life Insurance Corporation of India v. R. Dandapani, AIR

2006 SC 615 and had held as under:-

"8. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. [See: Kerala Solvent

Extractions Ltd. v. A. Unnikrishnan and Anr. (1994) II LLJ 888 SC."

14. In the totality of the facts and circumstances, the petitioner

has failed to make out any illegality, irregularity or any perversity in

the order dated 21st October, 2011 of the respondents reverting the

petitioner to the post of Constable prior to the appointment to the

rank of Sub Inspector on account of the petitioner failing repeatedly

in FPETs. The writ petition, therefore, is without any merit, and it is

dismissed. Parties are also left to bear their own costs

ANIL KUMAR, J.

J.R.MIDHA, J.

January 09, 2012 vk