Himachal Pradesh High Court
Umadutt Sharma vs Union Of India (1993) 4 on 27 October, 2021
Bench: Ajay Mohan Goel
1
HIN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 27th DAY OF OCTOBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION No. 3146 of 2021
Between:-
1. UMADUTT SHARMA, S/O SH.
DEVENDER SHARMA, R/O
VILL. KOTLA, P.O.
DHARAMPUR, TEHSIL
KASAULI, DISTRICT SOLAN,
H.P. r
2. RAVI BANSAL, NO. 1316, S/O
SH. PRAKASH CHAND, R/O
VILL. GANANA, P.O.
BHARARIGHAT, TEHSIL ARKI,
DISTRICT SOLAN, H.P.,
PRESENTLY POSTED AT
POLICE POST DHAMI.
3. RANJEET SINGH, S/O SH.
AMAR SINGH, R/O VILL.
MAJRI, P.O. MANDHALA,
TEHSIL BADDI, DISTRICT
SOLAN, H.P.
4. ASHISH CHAUHAN, S/O LT. SH.
KASHMIRI LAL, R/O V.P.O.
MOGINAND, TEHSIL NAHAN,
DISTRICT SIRMAUR, H.P.
5. KULDEEP, S/O SH. TULSI RAM,
R/O VILL. CHYOLA BOHAL,
P.O. GANGAL, TEHSIL
PACHHAD, DISTRICT
SIRMOUR, H.P.
6. SUBHASH CHAND, S/O LT. SH.
SAHI RAM, R/O V.P.O.
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ANDHERI, TEHSIL SANGRAH,
DISTRICT SIRMOUR, H.P.
7. DEEPAK SHARMA, NO. 1312,
S/O SH. VIJAY KUMAR, R/O
.
VILL. & P.O. BATAL, TEHSIL
ARKI, DISTRICT SOLAN, H.P.,
PRESENTLY POSTED AT
POLICE STATION
KANDHAGHAT.
8. AMARJEET, S/O SH. BACHAN
SINGH, R/O VILLAGE
KURANWALA, P.O.
MANDHALA, TEHSIL BADDI,
DISTRICT SOLAN, H.P.
9. SUKHWINDER SINGH, S/O SH.
OM PRAKASH, R/O VILLAGE &
P.O. DABHOTA, TEH.
NALAGARH, DISTRICT SOLAN,
H.P.
...PETITIONERS
(BY SHRI SHRAWAN DOGRA, SENIOR
ADVOCATE, WITH M/S KUSH SHARMA,
TEJASVI DOGRA AND HARSH KALTA,
ADVOCATES)
AND
1. STATE OF HIMACHAL
PRADESH THROUGH
SECRETARY (HOME) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-171002
(H.P.).
2. DIRECTOR GENERAL OF
POLICE, HIMACHAL PRADESH,
SHIMLA.
3. SH. ROHIT MALPANI (IPS),
CHAIRMAN OF SELECTION
COMMITTEE, PRESENTLY
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SUPERINTENDENT OF POLICE,
SIRMOUR, H.P.
4. SH. MOHIT CHAWLA,
CHAIRMAN OF SELECTION
.
COMMITTEE, PRESENTLY
SUPERINTENDENT OF POLICE,
SHIMLA, H.P.
5. SUNNY, CONSTABLE NO. 621
(PARENTAGE NOT KNOWN),
POSTED AT 4TH IRB
JANGALBERI, HAMIRPUR, H.P.
6. ANURADHA, NO. 242
(PARENTAGE NOT KNOWN),
POSTED AT POLICE STATION
BADDI, DISTT. SOLAN, H.P.
...RESPONDENTS
(SHRI ASHOK SHARMA,
ADVOCATE GENERAL, WITH
M/S ADARSH SHARMA &
SANJEEV SOOD, ADDITIONAL
ADVOCATE GENERALS & MR.
KAMAL KANT CCHANDEL,
DEPUTY ADVOCATE GENERAL,
FOR R-1 TO R-4)
NO NOTICE HAS BEEN ISSUED TO R-5 & R-
6, POST ADMISSION, IN TERMS OF ORDER
DATED 15.07.2021.
Reserved on: 20.10.2021
Decided on: 27.10.2021
Whether approved for reporting? Yes.
______________________________________________________
This petition coming on for pronouncement of judgment this day, the
Court passed the following:
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JUDGMENT
.
By way of this writ petition, the petitioners have, inter alia,
prayed for the following reliefs:-
"(i) That the impugned order dated
19.05.2021 (wrongly mentioned as 19.05.2020) i.e.,
Annexure P-18 and order dated 14.03.2018
(Annexure P-6) may kindly be quashed and set aside.
(ii) That the result of B-1 outdoor test
declared vide Annexure P-13 qua the petitioners,
having not been conducted as per the law contrary to
Standing Order No. 11/2016, and the final list
(Annexure P-10) be quashed and set aside. Further
the respondents may kindly be directed to conduct the
B-1 outdoor test afresh as per the standing order and
in a fair and impartial manner.
(iii) That in alternate to Relief No. (ii) official
respondents may be directed to declare the
petitioners eligible for Lower School Course, 2021 in
parity to the petitioners in CWPOA No. 40671 of 2020,
who have been recommended and set for the course
notwithstanding the fact that they had also not passed
the outdoor test."
2. Brief facts necessary for the adjudication of this petition are as
under:-
Petitioners are serving as Constables in the Police Department
of the respondent-State. The next promotional post from the post of
Constable is that of Head Constable. In order to be eligible for promotion to
the post of Head Constable, a Constable, who has put in five years service
as such, has to participate in a selection process for selection of candidates
.
for admission to promotion course for Constables at the Police Training
College, as envisaged vide Notification dated 13.06.2008, issued by the
Home Department, Government of Himachal Pradesh under The Punjab
Police (Himachal Pradesh Amendment) Rules, 2008. In terms of
Amendment Rules, Rule 13.7 of The Punjab Police Rules, 1934, in its
application to the State of Himachal Pradesh stands substituted to the effect
that each Superintendent of Police/Commandant Police Battalions of
Himachal Pradesh has to maintain a List 'B', which shall include the names
of Constables, who are selected for admission to the Promotion Course for
Constables at Police Training College. According to Rule 13.7, the test is to
be regulated by a Standing Order issued by the Director General of Police.
All successful candidates are to be kept in a panel and sent for Lower
School Course on merit basis as per available vacancies. Names of the
successful candidates are to be entered in List 'B' in order of their merit, as
determined by the Departmental Promotion Committee constituted by the
Director General of Police, on the basis of tests, as envisaged in this
Notification. The Notification further envisages that there shall be two written
papers for the test, i.e., Paper-I comprising of Punjab Police Rules and
Practical Police Work and Paper-II comprising of Laws, including Local and
Special Laws. The office of Director General of Police has issued Standing
Order qua B-I test vide Annexure P-2, dated 02.01.2017, i.e., Standing
Order No. 11/2016, which, inter alia, provides for regulation of B-I test,
prescribes the composition of Departmental Committees for selection to be
.
made from amongst Constables for admission to List-B etc. The
composition of Departmental Selection and Promotion Committee is defined
as one, which shall be constituted at District level. The Committee is to
comprise of Superintendents of Police of the Districts other than the
Superintendent of Police of that District where the test is to be held and
other members of Committee are to be nominated by ADGP/AP&T. The
ADGP/AP&T is also to prepare the final merit list and send the same to
PHQ for deciding the merit of selected candidates. The Standing Order
further envisages that the function of the Departmental Selection Committee
will be to scrutinize the cases of all eligible Constables, who opted to appear
in the test and facilitate/conduct the B-I written test in respect of the
candidates of respective Districts and Battalions and other offices attached
to the District for the purpose of test. It further provides that two GOs.
nominated by the ADGP/AP&T will assist in conduct of the test if held in a
District. The Standing Order envisages a written test and outdoor tests of
the candidates, who qualify the written test. In terms of the Standing Order,
once the result for written test has been declared and notified, the qualified
candidates shall be called for outdoor test by the Departmental Selection
Committee constituted in terms of the Standing Order and outdoor test will
be conducted as per the syllabus notified vide Himachal Pradesh
Government Notification dated 13.06.2008, which provides as under:-
"The syllabus shall be parade, squad drill, rifle
.
exercises and traffic and sentry duties, dispersal of
crowd. The candidates shall be tested not only in
personal performance but also to see their power of
command and control over a squad particularly their
ability to point out mistakes committed by members of
the squad and get those corrected."
3.
The maximum marks for outdoor events assigned in the
Standing Order are as under:-
"(c) The maximum marks for outdoor events are
assigned as follows:-
Marks
* Parade & Squad Drill = 10
* Rifle exercises = 06
* Traffic & Sentry Duties = 06
* Dispersal of crowd = 08
* Command & Control
over squad = 10
Total = 40
The maximum qualifying marks percentage for the outdoor test are 60%,i.e.,
24 marks out of 40 marks. Further, as per the Standing Order, those Police
Constables, who qualify the outdoor test, shall be called for personal
interview, which will carry 10 marks.
4. The contention of the petitioners is that they successfully
participated in the written test, which was held for selection of candidates to
undergo the promotion course in issue, which were held from 08.08.2017
onwards. Their grievance is with regard to the rejection of their candidature
in the course of outdoor tests by the Departmental Selection Committee.
.
5. In all, there are nine petitioners before this Court. Out of them,
petitioners No. 1 to 3 and 7 to 9 participated in the selection process
undertaken in District Solan, whereas, petitioners No. 4 to 6 participated in
the selection process undertaken in District Sirmaur at Nahan.
6. This Court will first refer to the grievance of the candidates, who
participated in the selection process undertaken in District Solan. The non-
selection of petitioners No. 1 to 3 and 7 to 9, who participated in the
selection process for District Solan stands assailed by them, inter alia, on
the grounds that the manner in which the outdoor test was conducted by the
Committee is bad, as the Committee rather than assessing the suitability of
the candidates, including the petitioners as a single Unit, bifurcated the
number of candidates intra the three members and the number of
candidates assigned to one Member were adjudged by that member alone
for the purpose of assessing suitability and not by other two Members,
which has led to grave prejudice to the petitioners, for the reason that there
was no collective wisdom of the Committee while assessing the suitability of
the petitioners, which is against the provisions and spirit of the Standing
Order, which constitutes the Departmental Selection Committee. Besides
this, the process has been assailed by the petitioners also on the ground
that the result sheet prepared, contains cuttings and alterations, which casts
doubt over the veracity of the process so undertaken by the Committee.
Further, as per the petitioners, no videography of the outdoor test was
undertaken by the Committee, as was done in many other Districts and the
.
outdoor tests were held in late hours, without their being adequate lighting
facilities etc. nor the syllabus was strictly followed.
7. The non-selection of petitioners No. 4 to 6, who participated in
the selection process undertaken in District Sirmaur has been assailed on
the ground that there were interpolations in the result sheets and further the
outdoor tests were held in late hours without their being adequate light
facilities, nor the syllabus of outdoor test was strictly followed. On these
counts, the petitioners have prayed for the reliefs already enumerated
hereinabove.
8. Before proceeding further, this Court would, in brief, refer to the
orders/documents, quashing of which stands prayed for by way of this writ
petition.
A. Annexure P-18, dated 19.05.2020, is order passed
by the Director General of Police, vide which, the
representation filed by the petitioners in terms of order, dated
14.12.2020, passed by this Court in CWPOA No. 4170 of 2020,
stands rejected.
B. Order, dated 14.03.2018 (Annexure P-6), is also
order passed by the Director General of Police, Himachal
Pradesh, vide which also, representation filed by the petitioners
in terms of order, dated 02.02.2018, passed by the erstwhile
learned Himachal Pradesh Administrative Tribunal in OA No.
410 of 2018, stood dismissed.
.
C. Annexure P-13 is the result of B-I outdoor test
pertaining to District Solan and District Sirmaur conducted in
the year, 2017.
D. Annexure P-10 is the list of Constables, who have
been declared to have qualified the B-I test in the year, 2017
and whose names have been approved for their nomination to
undergo Lower School Course on the basis of State level merit
list of qualified candidates 2017.
9. Learned Senior Counsel for the petitioners has argued that
Standing Order No. 11/16, dated 02.01.2017 provides for composition of the
Departmental Selection and Promotion Committee, which has to be
constituted for the purpose of facilitating/conducting the B-1 written test and
in terms of the said Standing Order, the composition of the Departmental
Selection & Promotion Committee shall comprise of the Superintendent of
Police of the District other than the one where the test is to be conducted
and two other Members to be nominated by ADGP/AP&T. Learned Senior
Counsel by referring to the record, has contended that perusal of the record
demonstrates that outdoor test of the candidates, who passed the written
test, was not conducted by the Committee, but was conducted by individual
Members of the Committee, by dividing the number of candidates into three
separate groups, which was not in consonance with the spirit of the
Standing Order. He has argued that the word 'Committee' means a
Committee in totality comprising of all three Members and the Standing
.
Order nowhere provided that the candidates to be assessed by the
Committee could have been divided into groups and then, some candidates
could have been adjudged by one Member to the exclusion of others and
the results from all groups could then have been grouped together so as to
find out the merit. On these basis, learned Senior Counsel has submitted
that as the outdoor test was not held by the Committee in terms of the spirit
of the Standing Order, therefore, non-selection of the petitioners on the
basis of this outdoor test is not sustainable in the eyes of law and it will be in
the interest of justice in case the petitioners are declared to have passed the
outdoor test, with all consequential benefits. Learned Senior Counsel has
further, by referring to the record, argued that the result sheet prepared of
the outdoor test demonstrates that there are interpolations therein, as there
are cuttings against the names of many of the candidates against marks
allotted to them, which shrouds the entire process with suspicion. These
interpolations hint at favouratism and create doubt as to whether the
allotment of marks was fairly done by the members, because as per the
petitioners, cuttings give an impression that the same was not done in a fair
manner. Learned Senior Counsel has also argued that the syllabus
mentioned for conducting the outdoor test was never followed in letter and
spirit. The outdoor tests were held during late hours, without there being
adequate light facilities etc., which has also resulted in unfairness and which
also demands that the petitioners be declared as passed in the outdoor
tests, with all consequential benefits. Learned Senior Counsel has relied
.
upon the following judgments in support of his arguments:
"1. Supreme Court Advocates-On-Record
Association and others Vs. Union of India (1993) 4
Supreme Court Cases 441.
2. Raj Kumar and others Vs. Shakti Raj and others
(1997) 9 Supreme Court Cases 527
3. Dipak Babaria Vs. State of Gujarat and others,
AIR 2014 Supreme Court 1792
4. Brajender Singh Yambem Vs. Union of India and
another (2016) 9 Supreme Court Cases 20.
5. Dr. (Major) Meeta Sahai Vs. State of Bihar and
others (2019) 20 Supreme Court Cases 17."
10. No other ground was urged.
11. Defending the act of the State, learned Advocate General has
argued that after participating in the B-1 outdoor test without any protest, the
petitioners have no locus standi to maintain the present writ petition. He
argued that if the petitioners were not satisfied with the method, which was
undertaken by the Committee for conducting the outdoor test, then they
should have protested the same there and then. He submitted that it does
not lie in the mouth of the petitioners after unsuccessfully participating in the
outdoor test to turn around and say that the same was bad in law. He
further argued that cuttings etc. in the documents reflect the fairness of the
Committee, otherwise nothing prevented the Committee to have had
created flawless record in which there were no cuttings etc. He also argued
that all the candidates who participated in the test were subjected to the
.
same parameters and same testing conditions and the petitioners after
being unsuccessful, are creating grounds for shrouding the process of
outdoor test with suspicion, whereas the outdoor tests were conducted
openly, fairly and in an unbiased manner. In support of his contentions, he
has relied upon the following judgments:
"1. AIR Commodore Naveen Jain Vs. Union of India
and others (2019) 10 Supreme Court Cases 34.
2. Anupal Singh and others Vs. State of Uttar
Pradesh (2020) 2 Supreme Court Cases 173."
12. I have heard learned counsel for the parties at length and also
gone through the pleadings as well as the documents appended therewith,
in detail.
13. Before dealing with the grounds raised by learned Senior
Counsel for the petitioners with regard to the mode and manner in which the
outdoor tests were conducted, this Court intends to make certain
observations in this case. One of the prayers of the petitioners is to quash
the result of B-I outdoor test declared vide Annexure P-13 qua the
petitioners on the ground that the same has been conducted contrary to the
Standing Order No. 11/16. Further prayer has been made for quashing of
final list issued in terms of Annexure P-10, vide which, the Constables,
whose names are mentioned therein, were approved and nominated to
undergo Lower School Course on the basis of State Level Merit List of
qualified candidates for the year 2017. Now, a perusal of Annexure P-10
.
demonstrates that in terms of the same, more than 200 Constables were
approved to undergo the Lower School Course. The petitioners have prayed
for quashing of this communication. However, the candidates, who stood
nominated by way of this Annexure to undergo Lower School Course, have
not been impleaded as party respondents. In case the prayer of the
petitioners is allowed by this Court and Annexure P-10 is quashed and set
aside, then it is but obvious that the same will adversely affect the
candidates who stood nominated vide this order (Annexure P-10). It is
settled law that no order can be passed at the back of a person, which has
civil consequences vis-a-vis him. Praying for quashing of Annexure P-10,
without impleading the persons likely to be affected, in the event of the
prayer being allowed, is bad in law and not permissible. This is for the
reason that non-impleading of persons to be likely affected, as respondents
renders this petition bad for non-joinder of necessary parties. This Court is
of the considered view that the Constables, who stood nominated vide
Annexure P-10 and who were likely to be affected, in the event of the
petition being allowed, were necessary parties and in the absence of them
having been impleaded as such, this petition is bad for non-joinder of
necessary parties and the same deserves to be dismissed on this count
alone.
14. Now, while dealing with the factual issues, this Court will refer
to the Standing Order, vide which the Departmental Selection Committee is
constituted. This Standing Order, i.e., Order No. 11/16, dated 02.01.2017, is
.
appended as Annexure P-2 with the writ petition. As has been mentioned
hereinabove also, the Standing Order provides that for selection of
Constables for admission to promotion List-B, from which, Constables are to
be sent to undergo promotion course, the Departmental Selection
Committee shall be constituted at the District level. The Committee is to
comprise of Superintendents of Police of the District other than the
Superintendent of Police of the District where the test is to be held and other
Members, who are to be nominated by ADGP/AP&T. In terms of this
Standing Order, the functions of the Departmental Selection Committee are
to scrutinize the cases of all the eligible Constables, who have opted to
appear in the test and to facilitate/conduct the B-I written test in respect of
the candidates of respective Districts and Battalions and once the result of
written test has been declared and notified, the qualified candidates are to
be called for outdoor test by the Departmental Selection Committee.
15. It is not in dispute that while adjudging the qualified candidates,
who appeared before the Departmental Selection Committee, constituted for
District Solan, the criteria which was followed by the Departmental Selection
Committee was that the number of qualified candidates were divided into
three groups and three members of the Committee then took the outdoor
test of one group each and the final result was declared on the basis of the
marks so allotted by the member concerned to the candidates, who
appeared before him. In other words,the qualified candidates were not
adjudged in the outdoor test by the Committee per se, but they were
.
adjudged by a single member of the Committee. This Court is of the
considered view that this criteria which was followed by the Departmental
Selection Committee for District Solan is not just.
16. The purpose as to why a Committee is constituted to adjudge
the suitability of candidates, is that there are more than one heads to assess
the suitability of the candidates, which thus gives more pragmatism to the
selection process and brings out the collective wisdom of the Committee. As
per the Black's Law Dictionary, Sixth Edition, "Committee" means: a person,
or an assembly or Board of persons, to whom the consideration,
determination, or management of any matter is committed or referred, as by
a Court or legislature. An individual or body to whom others have delegated
or committed a particular duty, or who have taken on themselves to perform
it in the expectation of their act being confirmed by the body they profess to
represent or act for. In legislatures a standing committee considers all bills,
resolutions, and other items of legislative business falling within the
category of matters over which it has been given jurisdiction. Membership
and rank on standing committees are largely determined by the seniority
rule. A special (or select) committee investigates and reports on specific
matters and terminates when that function has been rendered. A joint
committee of a legislative body comprising two chambers is a committee
consisting of representatives of each of the two houses, meeting and acting
together as one committee.
17. As per Pollock C.B.,Reynell Vs. Lewis, (1846) 16 LJ Ex 25 at
.
30, quoted in AIR 1994 Bom. 96 at 100, the term "Committee" means an
individual, or body to which others have committed or delegated a particular
duty, or who have taken on themselves to perform it, in the expectation of
their act being confirmed by the body they profess to represent or act for.
18. This Court is of the considered view that the reason as to why
more than one Members Committee has been constituted for the purpose of
testing the suitability of the candidates, is that it is the collective wisdom of
the Committee, which prevails rather than whims of one or two Members
while adjudging the suitability of the candidates. This element of collective
wisdom goes a miss once the Committee segregates itself into Members
and subjects only few candidates for scrutiny before a particular Member. In
this way, the spirit of collective wisdom is not only defeated but is also lost
and wisdom behind constitution of a Multi Members Committee is also
negated.
19. This Court is not oblivious to the fact that there can be a Single
Member Committee also. However, in terms of the Standing Order in issue,
for the purpose of selection of Constables, the Departmental Selection
Committee envisaged in the Standing Order was not a Single Member
Committee, but was a Committee comprising in terms of para-3 of the
Standing Order, of the Superintendent of Police of the District other than
where the test was being conducted and the other members of the
Committee were to be nominated by the ADGP/AP&T. When the Standing
Order itself provided that the composition of Departmental Selection
.
Committee was a Multi Member Committee, then this Court is of the
considered view that the merit of the candidates, who appeared and
participated in the outdoor test ought to have been adjudged by the entire
Committee collectively as a Unit and not by the individual member of the
Committee. Had it been a case where all qualified candidates appeared
before each Member, though separately, then also it would have been a
different matter, because in that case, each Member of the Committee
would have had an opportunity to adjudge the suitability of all the qualified
candidates and give their individual opinion. Here is a case where one
Member assessed the suitability of 1/3rd of the qualified candidates only
and other 2/3rd qualified candidates did not at all appear before said
Member. This is not what the spirit of Standing Order No. 11/16 is. This
Court concurs with the submissions of learned Senior Counsel for the
petitioners that the manner in which the suitability of the candidates was
adjudged by the Departmental Selection Committee for District Solan is not
in sync with the spirit of Standing Order No. 11/16. However, the next
question is as to whether in the peculiar facts of this case, will it be in the
interest of justice to quash the result of the said outdoor selection test or
not?
20. At this stage, it will be relevant to refer to the judgments relied
upon by the learned counsel for the parties.
21. In Supreme Court Advocates-On-Record Association and
.
others Vs. Union of India (1993) 4 Supreme Court Cases 441, the
Hon'ble Supreme Court has been pleased to hold that the constitutional
scheme excludes the scope of absolute power in anyone individual.
22. In Raj Kumar and others Vs. Shakti Raj and others (1997) 9
Supreme Court Cases 527, the Hon'ble Supreme Court has been pleased
to hold as under:- r
"16. Yet another circumstance is that the
Government had not taken out the post from the
purview of the Board, but after the examinations were
conducted under the 1955 Rule and after the results
were announced, it exercised the power under the
proviso to para 6 of 1970 notification and the post
were taken out from the purview thereof. thereafter
the Selection Committee was constituted for selection
of the condidates. The entire procedure is also
obviously illegal. It is true, as contended by Shri
Madhava Reddy, that this Court in Madan Lal vs.
State of & K(1995) 3 SCC 486 and other decisions
referred therein had held that a candidate having
taken a chance to appear in an interview and having
remained unsuccessful, cannot turn round and
challenge either the constitution of the selection
Board or the method of Selection as being illegal; he
is estopped to question the correctness of the
selection. But in his case, the Government have
committed glaring illegalities in the procedure to get
the candidates for examination under 1955 Rules, So
.
also in the method of selection and exercise of the
power in taking out from the purview of the and also
conduct of the selection in accordance with the Rules.
Therefore, the principle of estoppel by conduct or
acquiescence has no application to the facts in this
case, thus, we consider that the procedure offered
under the 1955 Rules adopted by the Government or
the Committee as well as the action take by the
Government are not correct in law."
23. In Dipak Babaria Vs. State of Gujarat and others, AIR 2014
Supreme Court 1792, the Hon'ble Supreme Court has been pleased to
hold that if the manner of doing a particular act is prescribed under any
Statute, then the act must be done in that manner only.
The same principle has been reiterated by the Hon'ble
Supreme Court in Brajendra Singh Yambem Vs. Union of India and
another (2016) 9 Supreme Court Cases 20.
24. In Dr. (Major) Meeta Sahai Vs. State of Bihar and others
(2019) 20 Supreme Court Cases 17, Hon'ble Supreme Court has been
pleased to hold that the principle of estoppel prevents a candidate from
challenging the selection process after having failed in it, however, this
principle can be differentiated on the ground that a candidate by agreeing to
participate in the selection process only accepts the prescribed procedure
and not the illegality in it. Hon'ble Supreme Court has further held that in a
situation where a candidate alleges misconstruction of statutory rules and
discriminating consequences arising therefrom the same cannot be
.
condoned merely because a candidate has partaken in it. The constitutional
scheme is sacrosanct and its violation in any manner is impermissible. In
fact, a candidate may not have locus to assail the incurable illegality or
derogation of the provisions of the Constitution, unless he/she participates
in the selection process.
25. In AIR Commodore Naveen Jain Vs. Union of India and
others (2019) 10 Supreme Court Cases 34, the Hon'ble Supreme Court
has been pleased to hold that the appellant therein having participated in
the selection process is estopped from challenging such policy. Hon'ble
Supreme Court has reiterated the principle that a person, who consciously
takes part in the process of selection cannot thereafter turn around and
challenge the selection process, by relying upon its earlier pronouncements.
26. In Anupal Singh and others Vs. State of Uttar Pradesh
(2020) 2 Supreme Court Cases 173, the Hon'ble Supreme Court has been
pleased to hold that having participated in the interview and having failed in
the final selection, it was not open to the aggrieved candidate to turn around
and challenge the revised Notification and having regard to the consistent
view taken by the Supreme Court, the High Court should not have granted
any relief to the private respondents intervenors.
27. Now, referring back to the facts of this cases, the petitioners
after passing the written test, appeared before the individual Member of the
Committee for the purpose of outdoor test. At that stage, they did not raise
.
any protest with the mode and manner in which the suitability of the
candidates was being adjudged by the Committee, per se. Not only this,
after participating in the outdoor test, they waited for the declaration of the
result. Had the petitioners been really aggrieved by the manner in which the
Committee conducted itself in the course of adjudging the candidates for
outdoor test, then the least that was expected, was that the petitioners
would have either represented against the same before the higher
authorities or ought to have had approached the appropriate Court of law
before declaration of the final result against the same. This also was not
done by them. It is only after the declaration of the final result when the
petitioners did not find their names in the merit list of the selected
candidates that they have assailed the mode and manner in which the
outdoor test was conducted by the Selection Committee at Solan. This
Court is of the considered view that in this background when the petitioners
acquiescenced themselves to this irregular process adopted by the
Committee, they cannot now be permitted to assail the same. Though this
Court again reiterates that it is not satisfied with the manner in which the
Committee undertook the outdoor test, yet in the larger interest, this Court is
not interfering with the selection of the candidates, which stood made on the
basis of the assessment made by the Committee for District Solan,
especially when selected candidates are not before the Court. Now, as far
as District Sirmaur is concerned, record does not demonstrates that therein
also this kind of a procedure was followed by the Committee. It is further
.
pertinent to mention that even qua District Solan, during the course of
arguments, the petitioners have not been able to demonstrate that it were
only the candidates, who were interviewed by one particular member, who
got selected in the outdoor test. Thus, per se discrimination could not be
demonstrated by the petitioners, though this Court reiterates that the
procedure followed, was not very happy procedure.
28. Now, coming to the question of interpolations in the result
sheet, it is evident from the record that there are number of cuttings in the
result sheet of B-1 outdoor test. During the course of arguments, learned
Advocate General could not give any reasonable explanation as to why
such cuttings were present. However, a close scrutiny of the pleadings
demonstrates that there is no bias which has been alleged by the petitioners
in the pleadings vis-a-vis the candidates against whose names cuttings are
there to the effect that the cuttings were made to give undue advantage to
these candidates. Moreover, such candidates, in front of whose names
cuttings are there in the remarks columns, are not before the Court and,
thus, have not been given any opportunity to put forth their contention in this
regard.
29. Be that as it may, though this Court does not approves of any
unnecessary cuttings in the result sheet, yet, this Court is of the view that as
it could not be demonstrated during the course of arguments that these
cuttings were a result of some bias in favour of certain candidates or were
done with malafide intent, therefore, this Court is not interfering with the final
.
selection on account of the allegation of cuttings being there in the result
sheet.
30. In this view of the matter, as this Court finds no merit in this
petition, the same is dismissed and as a result thereof, the orders which
have been passed by the appropriate authority on the representations of the
petitioners are also not being disturbed. However, before parting with the
judgment, this Court observes and directs that for future, the Departmental
Selection Committee which is so constituted in terms of the Standing Order
No. 11/16, shall adjudge the suitability of the candidates for outdoor test as
a Unit and shall not adopt the methodology which stood adopted by the
Committee for District Solan. Similarly, the preparation of result sheet
should not contain unnecessary and undue cuttings, as the same does not
bears a good reflection on the conduct of the Selection Committee. With
these remarks, this petition is ordered to be closed. Pending miscellaneous
applications, if any, also stand disposed of.
(Ajay Mohan Goel)
Judge
October 27, 2021
(bhupender)
