Delhi High Court
Chaman Giri & Ors vs Union Of India & Ors on 14 December, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th December, 2020
+ W.P. (C) 4910/2019
CHAMAN GIRI & ORS .... Petitioners
Through: Ms. Disha, Advocate.
Versus
UNION OF INDIA & ORS. ... Respondents
Through: Mr. Kirtiman Singh, Mr. Waize Ali
Noor, Mr. Rohan Anand and Ms. Taha
Yasin, Advocates.
AND
+ W.P. (C) 8742/2020
PANKAJ KUMAR .... Petitioner
Through: Mr. Sarthak Bhatia, Advocate.
Versus
UNION OF INDIA & ANR. ... Respondents
Through: Ms. Anju Gupta, Advocate.
AND
+ W.P. (C) 8847/2020
HARIOM GURJAR .... Petitioner
Through: Mr. Sarthak Bhatia, Advocates.
Versus
UNION OF INDIA & ANR. ... Respondents
Through: Mr. Dilbag Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
1. W.P.(C) No.4910/2019 was filed by 20 Sub-Inspectors (General Duty)
[SI(GD)] of the respondents Central Reserve Police Force (CRPF), seeking
(i) mandamus directing the respondents CRPF to continue the petitioners
therein on the post of SI(GD), as held by them since June, 2017, in
accordance with the ratio of Vikas Pratap Singh Vs. State of Chhattisgarh
(2013) 14 SCC 494; and, (ii) impugning the notice dated 30th April, 2019
issued by the Directorate General, CRPF declaring final revised result for the
post of SI(GD) through the Limited Departmental Competitive Examination
[LDCE] - 2016, to the extent of excluding the names of the petitioners from
the revised merit list.
2. It is the case of the petitioners in W.P.(C) No.4910/2019, that (i) they
joined the respondents CRPF between the years 2006 to 2012, as Constables
(GD); (ii) vide Signal dated 7th September, 2016, applications from eligible
Constables and Head Constables (HC) working in the respondents CRPF
were invited for selection to the post of SI (GD) through LDCE-2016, for
which all the petitioners applied; (iii) the LDCE-2016 written examination
took place on 5th February, 2017 and in which all the petitioners appeared;
(iv) the result of the LDCE-2016 written examination was declared on 8th
February, 2017 and the petitioners were declared qualified in the written
examination and asked to appear for the physical test; (v) in the result
declared on 18th May, 2017 of LDCE-2016, all the petitioners were selected;
(vi) the petitioners were directed to and joined the six months training, on
13th June, 2017 and after successful completion of training, graduated as
SI(GD)s; (vii) pursuant thereto, the seniority list of SI(GD)s was updated and
the seniority date of the petitioners was given therein as 30th April, 2017;
(viii) the petitioners, as of 30th April, 2018, completed two years of
probation; (ix) various candidates who did not clear the LDCE-2016
challenged the result of the said examination by filing W.P.(C)
Nos.1900/2017, 1983/2018, 7415/2017, 8378/2018 and 8447/2018 and
during the said proceedings, the respondents CRPF agreed that there had
been mistakes in the examination procedure; (x) pursuant to the aforesaid,
the respondents CRPF, on 20th September, 2018 issued a notification for re-
examination of the results and invited objections to the answer key; (xi) on
20th September, 2018, notice for reconciliation of results was issued and
wherein additionally 40 more candidates were notified to have cleared the
written examination component of LDCE-2016; (xii) on 30th April, 2019, the
impugned revised result of LDCE-2016 was published and in which the
names of 23 candidates including the 20 petitioners were notified in
Appendix-B, being the list of candidates who did not make it to the revised
merit list; and, (xiii) the petitioners thus, after two years of their selection,
were de-selected.
3. Contending, (i) prejudice to the petitioners without any fault of theirs;
(ii) that they were not parties to the petitions aforesaid filed, challenging the
result and were not given an opportunity of being heard; (iii) that rank is not
removable without following the proper procedure; (iv) that the petitioners
have successfully completed their training and have been performing their
duties as SI(GD)s since the year 2017; (v) that on being downgraded before
their contemporaries, they will lose their morale; (vi) that the petitioners
have lost the chance of taking LDCE in subsequent years owing to having
been selected in the subject examination, and relying on Vikas Pratap Singh
supra, Rajesh Kumar Vs. State of Bihar (2013) 4 SCC 690 and Girjesh
Srivastava Vs. State of M.P. (2010) 10 SCC 707, W.P.(C) No.4910/2019
was filed.
4. W.P.(C) No.4910/2019 came up first before this Court on 7th May,
2019 and thereafter on 13th May, 2019 when while issuing notice thereof,
direction was issued to the respondents CRPF to disclose the vacancy
position in the rank of SI(GD), from the year 2016 onwards and it was
further directed that in the meanwhile the petitioners shall not be reverted
from the post of SI(GD). The said interim order has continued till now.
5. CMs No. 29214/2019 and 48690/2019 were filed seeking
impleadment, claiming to be identically situated as the petitioners and were
accompanied by CMs No. 48691/2019 and 48693/2019 seeking ad-interim
stay. The said applications came up before the Court on 8th November, 2019
when while issuing notice thereof, it was directed that the applicants seeking
impleadment be also not reverted from their then position as SI(GD) in the
respondents CRPF.
6. The respondents CRPF filed CM No.1758/2020 for
recall/modification of the order dated 8th November, 2019 staying the
reversion from the post of SI(GD) of the applicants seeking impleadment,
pleading that (i) on the basis of objections invited to the answer key, answer
of some of the questions were changed and some questions were discarded;
(ii) marks for right answers as per final answer key were given to the
candidates; (iii) marks for wrong questions / all wrong answer options were
given to those candidates who had attempted them, as per the orders of the
Supreme Court in Anil Kumar & Ors. Vs. State of Uttar Pradesh 2014 SCC
OnLine SC 1687 wherein full marks were granted to the candidates who had
attempted the wrong questions; (iv) revised result of the written examination
component of LDCE-2016 was prepared as per the directions contained in
the order dated 27th September, 2018 pronounced in W.P.(C)
Nos.9632/2018, 7415/2017, 8378/2018, 8395/2018, 7283/2018 and
8447/2018; (v) based on the revised result / merit, cut off marks for the last
candidate selected in the General / Other Backward Caste (OBC) category
stood enhanced from 125 in the earlier result to 138 in the revised result, for
male candidates; (vi) final fresh merit-cum-selection list was prepared on the
basis of total vacancies notified and released for the post of SI(GD) through
LDCE-2016, vide notification dated 7th September, 2016; (vii) total 115
candidates, of which 109 were male and 6 were female, were selected; (viii)
the final result so prepared was uploaded on the website of the respondents
CRPF on 2nd May, 2019; (ix) due to revision of result of written
examination, some new candidates passed the written examination and were
found eligible for consideration for selection; (x) accordingly, 39 candidates
of which 29 were male and 10 were female, were directed to undergo
Physical Standard Test (PST) / Physical Efficiency Test (PET) and Medical
Examination; (xi) 9 candidates of which 3 were male and 6 female, could not
pass the PET; (xii) thus total 24 new candidates of which 20 were male and 4
were female found place in the new final merit-cum-selection list and 23
previously selected candidates including the petitioners could not secure a
place in the revised merit list; (xiii) applicant in CM No. 29214/2019 for
impleadment viz. Constable Kuldeep Singh, after revision of results had
below 45% qualifying marks and thus stands on a different footing than the
22 other candidates and thus applicant in CM No. 29214/2019 for
impleadment namely Constable Kuldeep Singh, cannot avail the benefit of
the interim order dated 13th May, 2019; and, (xiv) the aforesaid facts could
not be brought to the notice of this Court when the application aforesaid of
Constable Kuldeep Singh for impleadment came up before this Court.
7. The respondents CRPF have also filed a counter affidavit, additionally
pleading, that (a) the quota for appointment of SI(GD) through LDCE is
17%; (b) for LDCE-2016, there were 119 vacancies; (c) at the time of
revision of the results, notice was given to all candidates to submit
objections; (d) any additional selection of SI(GD)s will affect the
promotional aspect of the directly appointed and promotee SIs who are likely
to file cases against the additional selection beyond the quota of 17% for
LDCE; (e) if the petitioners are allowed to remain SI(GD)s, then 119 more
candidates would also request for selection; (f) as per the scheme of LDCE
prescribed by Ministry of Home Affairs (MHA), the unfilled vacancies in
LDCE for the year are filled up by promotion quota and not carried forward;
(g) since the vacancies of SI(GD) in the LDCE quota for the year 2016 have
already been filled, the petitioners cannot be selected against future
vacancies; (h) selection of additional candidates beyond quota of LDCE will
result adversely in promotional aspect of directly appointed SI(GD)s and
promotee SI(GD)s; (i) the exercise of revision of result was carried out in a
fair and transparent manner, in compliance of the orders of the Court; (j)
while reverting the petitioners, the original seniority in rank of the petitioners
is maintained; (k) through the process of revision of result, justice has been
done to candidates who scored higher marks than the petitioners; (l) the
petitioners were not confirmed for the post of SI(GD); and, (m) training is
always imparted to improve efficiency and to impart new techniques,
knowledge and information and is beneficial to the petitioners and the
respondents CRPF; thus training cannot be considered as a loss to the
exchequer.
8. The counsel for the petitioners and the counsel for the respondents
CRPF in W.P.(C) No.4910/2019 were heard on 5th November, 2020 and
judgment reserved.
9. The counsel for the petitioners in W.P.(C) No.4910/2019, besides
reiterating all that is pleaded, has contended that (i) the petitioners are not at
fault; (ii) the petitioners had participated in the competitive examination and
were declared successful therein and were accordingly appointed as
SI(GD)s; (iii) the petitioners had undergone the training and have been
serving as SI(GD)s for three years; (iv) there was no complaint whatsoever
against the petitioners or with respect to the performance of duties by the
petitioners as SI(GD)s; (v) the petitioners should not now be reverted and
will face a lot of humiliation in front of their juniors, who, if the petitioners
are reverted, will become equivalent to the petitioners; (vi) in uniformed
services, rank is a very significant thing; and, (vii) status of the petitioners
should now not be disturbed. Reliance was placed on the judgment dated
18th July, 2019 of the Division Bench of High Court of Jharkhand in Letter
Patent Appeal (LPA) No.473/2016 titled The State of Jharkhand Vs. Hari
Kujur and in other connected appeals. The said LPAs had arisen out of the
common judgment dated 12th August, 2016 of the Single Judge of that High
Court in a batch of cases filed for quashing of the revised result of different
posts pursuant to the advertisement dated 8th August, 2009 and impugning
the order of removal of the petitioners therein from service. The Single Judge
had quashed and set aside the order of termination of the service of the
petitioners therein and directed the State of Jharkhand to reinstate the
petitioners in service against the existing / anticipated or future vacancies,
treating it to be fresh appointment and by placing them at the bottom of the
seniority list for the revised merit list. The Division Bench of the High Court
of Jharkhand dismissed the LPAs reasoning, that (a) the Single Judge had
correctly allowed the petitions following the ratio of Vikas Pratap Singh
supra; (b) the petitioners therein had not made any misrepresentation or
committed a fraud; (c) the petitioners therein had successfully completed
their probation period of one year and undergone training of all varieties and
therefore, for no fault on their part, it would be highly unjust and unfair to
terminate their services for any irregularity committed by the Selection
Committee and for which the petitioners therein were not responsible in any
manner whatsoever; (d) the petitioners therein were dismissed from service
in exercise of powers under Rule 668 (Ka) of the Police Manual but which
dealt with removal or reversion of officers on probation; the petitioners
therein were not on probation as they had completed one year of satisfactory
service as per the stipulation made in Rule 668 (Ka) itself; (e) the State had
invoked the wrong power to terminate the services of the petitioners therein;
and, (f) the dismissal of the petitioners therein from service amounted to
major punishment for which Rule 828 of the Police Manual had to be
invoked by full-fledged departmental proceedings, which had not been done.
We may notice that in the aforesaid case, during the pendency of the writ
petitions before the Single Judge, intervention applications were filed by the
candidates who had been successful/scored higher than the petitioners
therein in the revised merit, list contending that they should be given
preference over, or treated at par with the petitioners therein, but no relief
was granted by the Single Judge to the interveners. However the Division
Bench noted that though the Single Judge had directed the State of Jharkand
that in case any selection was made on the post in question in future, the
State would be obliged to consider the case of the interveners by relaxing the
age in appropriate cases in accordance with law but the Division Bench
could not subscribe to that view, being violative of Articles 14 and 16 of the
Constitution of India vis-a-vis the fresh candidates making applications in
any such future selection process.
10. The counsel for the petitioners also relied upon Vikas Pratap Singh
supra to contend that weightage has to be given to the petitioners having
successfully undergone training and having efficiently served for more than
three years and termination of their employment would impinge upon not
only their economic security but also economic security of their dependents
and affect their careers and that it was highly unjust and unfair to the
innocent appointees of an erroneous evaluation of answer script if their
services were terminated.
11. Per contra, the counsel for the respondents CRPF has contended that
while in the judgment of the Division Bench of the High Court of Jharkhand,
the probation period had been completed and the appointments had been
confirmed, the petitioners herein, at the time of their reversion, were still
under probation. Attention was invited to the reply to the grounds 'K' and
'L' in the counter affidavit, where it was pleaded that recruitment through
LDCE is to be determined from the date of announcement of results and
since the result of the petitioners was declared on 18th May, 2017, the period
of two years of probation of the petitioners was to stand completed on 17th
May, 2019 and not on 30th April, 2018, as pleaded by the petitioners. It was
thus contended that the petitioners were not confirmed for the post of
SI(GD). It was further contended that the training imparted to the petitioners
would not go waste as they would continue to serve the respondents CRPF,
making use of the training imparted to them. It was further the contention of
the counsel for the respondents CRPF that as per the Recruitment Rules,
17% of the total posts of SI(GD) were to be filled by LDCE and the said
17% quota of the posts of SI through LDCE for the year 2016 were filed up
and if the petitioners remained at the said post, the same would lead to
complexities of seniority and lead to multifarious litigations. Attention was
also invited to the orders in W.P.(C) No.7283/2018 titled Mithilesh Singh
Vs. Union of India and other connected petitions impugning the result of the
LDCE-2016 to contend that the result, in the present case was revised
pursuant to court orders.
12. During the hearing, we enquired from the counsel for the petitioners
that if the petitioners were allowed to continue on the post of SI(GD), would
not others, who also, as per the revised result, had scored more or equivalent
marks as that of the petitioners, claim appointment as SI (GD).
13. The counsel for the petitioners contended that none had approached
since the time these petitions were pending.
14. However as if prophesied, W.P.(C) No.8742/2020 and W.P.(C)
No.8847/2020 came up before us soon thereafter, on 6th November, 2020 and
9th November, 2020 respectively, the petitioner in both of which claim to
have scored the same marks in the revised result as the petitioners in W.P.(C)
No.4910/2019 and have contended that since the petitioners herein, inspite of
being not eligible as per the revised result of the examination, have been
granted interim relief against their reversion, they were also entitled to be
appointed as SI(GD) and if were not appointed, would be discriminated
against.
15. We informed the counsel for the petitioner in W.P.(C) No.8742/2020
and W.P.(C) No.8847/2020 that we had on 5th November, 2020 heard final
arguments in W.P.(C) No.4910/2019 and reserved judgment and thus the
question of entertaining W.P.(C) No.8742/2020 and W.P.(C) No.8847/2020
would arise only if W.P.(C) No.4910/2019 was allowed. We thus, after
hearing the counsel for the petitioners in W.P.(C) No.8742/2020 and
W.P.(C) No.8847/2020, reserved orders on admission in the said petitions.
16. We have considered the contentions of the counsel for the petitioners
in W.P.(C) No.4910/2019 with emphasis on Vikas Pratap Singh supra and
are unable to find the petitioners entitled to the relief claimed, for the
following reasons:
A. Though undoubtedly the petitioners were found successful in the result
declared of the LDCE-2016 but the said result was under challenge in
the writ petitions aforesaid filed before this Court and which writ
petitions had been entertained. The result declared of the LDCE-2016,
finding the petitioners successful, thus remained inchoate and did not
attain finality. However, it appears that since there was no interim
order in the writ petitions aforesaid filed impugning the result, the
respondents CRPF proceeded with making appointments in pursuance
thereto. However since the writ petitions impugning the result
remained pending, all steps taken by the respondents CRPF of
appointment of successful candidates including the petitioners, as
SI(GD), remained, in law, subject to the outcome of the pending
petitions challenging the result of the LDCE-2016. Axiomatically,
when ultimately the result was revised under Court orders, it is the
said revised result which has attained finality and the earlier result in
which the petitioners were found successful stood superseded by the
revised result.
B. Admittedly, as per the revised result to which there is no challenge,
the petitioners were not successful in the LDCE-2016 and were not
entitled to the appointment as SI(GD)s and the inchoate appointment
of the petitioners as SI(GD)s became illegal on the declaration of the
revised result.
C. The question for consideration is that when something is illegal as per
the order of the Court in one proceeding, can the order, in another
proceeding, validate the same. In our opinion, no. As per the orders
of the Court in the writ petitions impugning the result of LDCE-2016,
the result declared and in pursuance to which the petitioners were
appointed, was not correct, was erroneous and the selection in
pursuance thereto was no selection in law and the result needed to be
revised. Those orders have attained finality and we are not sitting in
appeal thereagainst. In accordance with those orders and the revised
result prepared in accordance therewith, the result to the extent
declaring the petitioners successful, was / is bad in law. As a
consequence, the appointment of the petitioners as SI(GD), in
accordance with the orders in those petitions, are bad in law. We
cannot in this petition filed by the petitioners, pass a conflicting order,
holding the appointment of the petitioners to be valid. The
appointment of the petitioners, as per the orders in the writ petitions
filed impugning the result of LDCE-2016, are illegal and the
petitioners never had any right of appointment as SI(GD). Though
undoubtedly the petitioners were not parties to those writ petitions but
considering the nature of the challenge and relief claimed in the writ
petition i.e. of impugning the result of a competitive examination, the
relief granted therein was in rem and the petitioners would be bound
thereby and had option, if aggrieved from those orders, only to
challenge those and have no right to file a independent petition
claiming inconsistent relief. If the Courts start entertaining petitions
claiming relief contrary to the orders passed in some other petitions
and start granting reliefs inconsistent in law to the orders in some
other proceedings, it would result in judicial chaos, with instead of
parties, orders / judgments of different courts in different proceedings,
being pitted against each other and leaving the parties, in this case the
Executive, with a discretion, which order to follow and abide by. This
would erode the role of the Courts in dispute adjudication and being
the final arbiter of conflicting claims and vest such power in some
other organ of the State.
D. As far as Vikas Pratap Singh supra is concerned, the law laid down
by the Constitution Bench in Secretary, State of Karnataka Vs. Uma
Devi (2006) 4 SCC 1 is that an appointment which is illegal, cannot be
regularized. To grant relief to the petitioners in these petitions would
amount to this Court, in contravention of the Recruitment Rules,
validating the illegality of appointment of the petitioners as SI(GD).
Recently in State of Bihar Vs. Kirti Narayan Prasad (2019) 13 SCC
250 and in Punjab Urban Planning & Development Authority Vs.
Karamjit Singh (2019) 16 SCC 782, reiterating Uma Devi supra it
was held that appointments which are illegal, are void ab initio.
Mention may also be made of Renu Vs. District & Sessions Judge,
Tis Hazari (2014) 15 SCC 731 where recruitments held without
advertisement / interview, were held to be liable to be quashed and it
was held that mere issuance of appointment letter confer no right.
E. Though undoubtedly the petitioners are not to blame and would suffer
embarrassment and humiliation on reversion and our sympathies are
with the petitioners but at the same time we are conscious that
sympathy shown in this case would be misplaced. The said sympathy
is likely to lead to multiplicity of litigation, with the petitioners
occupying the posts of SI(GD) in excess of that provided for in the
Recruitment Rules. Continuation of the petitioners as SI(GD)s of
LDCE-2016 would deprive the subsequent appointees to the post of
SI(GD), whether by direct recruitment or by promotion or by LDCE,
of their seniority and would affect their future prospects of promotion.
In Bhupendra Nath Hazarika Vs. State of Assam (2013) 2 SCC 516,
selection of 20 candidates in excess of permitted quota was held to be
bad and illegal and unsustainable and it was held, that whether any
active part is played by a selectee or not has nothing to do with the
appointment made in contravention of the Rules. It was further held
that an equitable ground does not clothe an appointment with legal
status. It was yet further held that legitimate aspirations of regularly
appointed employees should not be guillotined and situations not
created where hopes end in despair, as would happen to the aspirations
of those validly appointed and whose seniority and promotional
avenues would be affected if the appointments of the petitioners were
to be retained. In Arbind Kumar Vs. State of Jharkhand (2018) 17
SCC 762 also, submission that the appointees were victims and hence
deserve sympathy, was rejected holding that beneficiaries cannot
blame appointing authority alone and claim continuation of illegal
appointment in perpetuity. Mention may also be made of State of
Orissa Vs. Mamta Mohanty (2011) 3 SCC 436 holding that the
concept of adverse possession of lien on post or holding over are not
applicable to service jurisprudence.
F. Not only so, if the petitioners are continued as SI(GD)s, we would
have no reason to discriminate others similarly situated as petitioners,
who had scored same or higher but less than the marks of the last
candidate in the revised merit list, claiming appointment as SI(GD)
and would be thus similarly or better placed as the petitioners. We are
informed that there are 191 such candidates and retention of the 20
petitioners, three seeking impleadment as well as induction of 191
others would play havoc with the cadre strength.
G. We are also of the view that the remedy if any of the petitioners was
to, when the process of revision of the result was undertaken and
objections invited to the answer key, make proper representation or
appeal against the orders in the petitions filed impugning the result of
LDCE-2016 in pursuance whereto the revision of the result was taking
place. It was at that stage only that the relief if any could have been
granted to the petitioners, as is often done by the Courts when faced
with challenge to the answer key of questions in competitive
examination, by allowing those declared selected in the original result
also to participate further in the selection process, even though not
eligible as per the revised result. The petitioners did not act at that
stage and cannot now claim relief inconsistent to the reliefs granted in
earlier petitions orders wherein have attained finality and selectee in
pursuance whereto have been appointed.
17. Considering all the aforesaid factors, it is best to nip the matter in the
bud, by dismissing W.P.(C) No.4910/2019.
18. Accordingly, W.P.(C) No.4910/2019 is dismissed but with the
clarification that the emoluments paid / benefits conferred on the
petitioners as SI(GD)s shall not be recovered back and that the period
served by the petitioners as SI(GD)s will be counted as the period
served by the petitioners in their original cadre, whether it be of
Constable or Head Constable and no other prejudice would be caused to the
petitioners owing to the situation in which they are, for no fault of theirs.
19. Axiomatically, W.P.(C) Nos.8742/2020 & 8847/2020 are also dismissed.
20. The petitions are disposed of.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J.
DECEMBER 14, 2020
'gsr'..
