Shaik Mujahid vs The State Of Telangana
2024 Latest Caselaw 1895 Tel

Telangana High Court

Shaik Mujahid vs The State Of Telangana on 3 May, 2024

Author: Abhinand Kumar Shavili

Bench: Abhinand Kumar Shavili

  HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                                    AND
 HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                        W.A.Nos. 45 & 58 of 2024

COMMON JUDGMENT:

(Per Hon'ble Sri Justice Abhinand Kumar Shavili)

Both these Writ Appeals are disposed of by way of this

Common Judgment as the issue raised in both these Writ Appeals is

one and the same.

2. Aggrieved by the orders dt.18-10-2023 passed in

W.P.No.20817 of 2017, W.A.No.45 of 2024 is filed by the petitioner

Nos.3 and 10 and W.A.No.58 of 2024 is filed by the petitioner No.7 in

the Writ Petition.

3. Heard Sri P.V. Krishnaiah, learned counsel for the

appellants in W.A.No.45 of 2024, Sri Ramesh Chilla, learned counsel

for the appellant in W.A.No.58 of 2024 and Sri M.V. Rama Rao,

learned counsel for the respondents in both the Writ Appeals.

4. For the sake of convenience, the facts in W.A.No.45 of

2024 are hereunder discussed.

2 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

5. It has been contended by the appellants that they have

responded to the Notification dt.31-12-2015 for the posts of

Stipendiary Police Constables in various categories such as Civil,

Armed Reserve (AR), Special Protection Force (SPF), Battalion

(TSSP), firemen and other categories and they have participated in the

selection courses, and for the post of Stipendiary Cadet Trainee Police

Constable, in all the above categories, they have participated in the

selection process and appeared decently well till the selections are

over. As per the notification, one must participate in the Physical

Efficiency Test (PET) and the PET consists a long jump, short to high

jump and 800 meters running. As far as high jump is concerned,

certain points were awarded for high jump. For example, if anybody

clears 1.20 meters to 1.25 meters, he would be given 7.5 marks and

persons who cleared 1.26 meters to 1.30 meters, they would be

awarded 8.25 marks and for those who cleared 1.31 meters to 1.35

meters, 9 marks would be awarded. So the appellants were required to

jump these predetermined heights. The appellants are aggrieved by the

award of points for high jump. Different methods were adopted by

different centers, and in some centers, those who have cleared 1.36

meters, they must be awarded higher marks but when it came to the

case of the appellants, in spite of the appellants clearing higher range 3 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

of high jump and they were awarded lesser marks, and therefore, the

appellants could not get selected because of erroneous recording of

readings in high jump. Due to the negligence of the respondents, the

appellants were denied higher marks and consequently they could not

get selected.

6. Learned counsel for the appellants had contended that

when the appellants were denied appointment as Police Constables

because of the erroneous recordings of high jump readings, the

appellants have approached this Court by filing the present Writ

Petition and the learned Single Judge of this Court was pleased to

dispose of the case and directed the respondents to subject the

appellants for appearing PET afresh in respect of high jump from bar

1.26 meters and in the event, the appellants succeed in the said test, the

respondents are directed to consider the case of the appellants for

appointment of Constables without appreciating any of the contentions

raised by the appellants.

7. Learned counsel for the appellants had further contended

that all the appellants have responded to the notification way back in

the year 2015 and after ten years, if the appellants participate in the

PET in high jump, they may not success as the ages of the appellants 4 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

have crossed the age of performing maximum high jump. The learned

Single Judge ought to have allowed the Writ Petition by directing the

respondents to appoint the appellants as Police Constables based on the

record which is available with the respondents.

8. Learned counsel for the appellants had further contended

that the appellants have approached this Court by filing the present

Writ Petition way back in 2017 itself and the learned Single Judge of

this Court was pleased to grant interim direction on 24-04-2023

directing the respondents to produce the relevant record of the

appellants in respect of high jump so as to enable the Court to

adjudicate the matter effectively and in spite of such an interlocutory

order being passed, the respondents have not produced any record in

respect of appellants' performance in high jump. When records are not

produced in spite of there being a direction, an adverse inference ought

to have been drawn against the respondents and the learned Single

Judge ought to have directed the respondents to consider the case of

the appellants for appointment as Police Constable based on the record

of performance being maintained by the respondents. If the order of

the learned Single Judge directing the appellants to participate in PET

is confirmed, at this point of time, the appellants may not be in a

position to clear the said test.

5 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

9. Learned counsel for the appellants had relied upon the

judgment of the Supreme Court in Dinesh Kumar Kashyap and

others v. South East Central Railway and others 1 and contended

that the State must give some justifiable, non-arbitrary reason for not

filling up the post. When the employer is the State it is bound to act

according to Article 14 of the Constitution. It cannot without any

rhyme or reason decide not to fill up the post. It must give some

plausible reason for not filling up the posts. The courts would

normally not question the justification but the justification must be

reasonable and should not be an arbitrary, capricious or whimsical

exercise of discretion vested in the State.

10. Learned counsel for the appellants had further contended

that in the instant case, the State has acted in a arbitrary manner by

recording incorrect readings of high jump of the appellants and when

records were directed to produce, they have not produced the records.

In the absence of records being not produced, an adverse inference

ought to have been drawn against respondents and therefore the

learned Single Judge ought to have allowed the Writ Petition by

directing the respondents to consider the case of the appellants for

appointment as Police Constable.

(2019) 12 S.C.C. 798 6 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

11. Learned counsel for the appellants had further relied

upon the judgment of the Supreme Court in A.P. Public Service

Commission v. P. Chandra Mouleesware Reddy and others 2, and

contended that the Supreme Court held that the law cannot be

permitted to act unfairly. It cannot be arbitrary. The country is

governed by a rule of law and not by men. Thus, although a mistake

had been committed by the State, the same cannot be directed to be

perpetrated only because the Commission will have to undertake the

selection process again and particularly, in view of the fact that the

State of Andhra Pradesh did not question the order passed by the

Tribunal.

12. Learned counsel for the appellants had contended that in

the instant case also, the State has acted in a very unfair manner by not

recording the readings of high jump of the appellants, thereby, the

appellants were deprived of selections as Police Constable. Therefore,

appropriate orders be passed in the Writ Appeal by setting aside the

order passed by the learned Single Judge in the Writ Petition and allow

the Writ Appeal and further direct the respondents to consider the case

of the appellants for appointment to the post of Police Constable

without subjecting them to any further test in high jump.

(2006) 8 S.C.C. 330 7 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

13. Per contra, learned counsel for the respondents had

contended that the appellants have not participated in the selection

process and having not being selected, the appellants cannot turn

around and contend that the respondents have not recorded the

readings of the high jump properly. Learned counsel for the

respondents had contended that the persons who have participated in

the selections and have taken a chance, cannot turn around and

challenge the very same process. Learned counsel had further

contended that the respondents have taken enough care in recording the

readings of each event and the readings which were recorded in the

physical events were noted on a sheet, and on which, the appellants

have also attested and signed which would disclose that the recordings

of readings in the PET were done in a fair and transparent manner and

the appellants have also attested after noting the readings. If the

readings are recorded erroneously, at that point of time, the appellants

could have raised an issue about incorrect recordings of readings, but

after entire selection process is over, the appellants cannot turn around

and contend that the readings were recorded erroneously in high jump.

14. Learned counsel for the respondents had further

contended that the selections are pertaining to the notification issued in

2015 and it is almost ten years back and now it is impossible to the 8 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

respondents to maintain the record for 14 years and since the entire

selection process is over, the records were destroyed after following

due procedure.

15. Learned counsel for the respondents had further

contended that there are no records except the readings recorded in a

sheet and a perusal of the said sheet, which is only available, discloses

that the readings recorded in high jump and all other events were noted

down by the respondents and they have also taken the signatures of all

the candidates on such a sheet which would mean that the appellants

were aware of the readings whatever recorded and only after seeing the

readings and satisfying by the appellants, the respondents have sent the

sheets.

16. Learned counsel for the respondents had further

contended that the entire selection process was done in a fair and

transparent manner and in the absence of there being a record, the

question of considering the cases of appellants for appointment to the

post of Police Constable would not arise. The learned Single Judge

has rightly not given a direction to consider the case of the appellants

for appointment to the post of Police Constable in the absence of

record. Therefore, learned Single Judge has rightly disposed of the 9 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

Writ Petition particularly directing the respondents to conduct PET in

respect of high jump for the appellants in a fair and transparent

manner. Learned Single Judge though would not have directed to

conduct second PET for the appellants, but in the interest of justice,

directed the respondents to consider the case of the appellants for

permitting them to participate in the PET in respect of high jump only

and if the appellants cleared the said test, their cases would be

considered.

17. Learned counsel for the respondents had relied upon the

judgment of the Supreme Court in Ramesh Chandra Shah and

others v. Anil Joshi and others 3, wherein the Supreme Court held that

it is settled law that a person who consciously takes part in the process

of selection cannot, thereafter, turn around and question the method of

selection and its outcome. In the instant case, the appellants have

participated in the selection process, and only when they were not

selected, they leveled allegations regarding not properly recording the

readings of the high jump in the test.

18. Learned counsel for the respondents had also relied upon

the judgment of the Supreme Court in Ashok Kumar and another v.

(2013) 11 S.C.C. 309 10 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

State of Bihar and others 4, wherein the Supreme Court held that the

appellants have participated in the fresh process of selection. If the

appellants were aggrieved by the decision to hold a fresh process, they

did not espouse their remedy. Instead, they participated in the fresh

process of selection and it was only upon being unsuccessful that they

challenged the result in the writ petition. This was clearly not open to

the appellants. The principle of estoppel would operate and the

Supreme Court has also considered when once the candidates

participated in the selection process, they cannot turn around and

challenge the very same selection. Therefore, the learned counsel for

the respondents had contended that there are no merits in both the Writ

Appeals and the same are liable to be dismissed.

19. This Court having considered the rival submissions made

by the learned counsel on either side is of the considered view that the

appellants have participated in the selection process and the readings of

performance in the PET were also shown to the appellants and the

appellants being satisfied have attested the said sheet wherein the

readings of the high jump were recorded. When once the appellants

have attested the sheet wherein the recordings were already noticed,

the question of interfering with the said selection process would not

(2017) 4 S.C.C. 357 11 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

arise. Therefore, since the appellants have participated in the selection

process, they cannot turn around that too after results are announced on

the ground that the readings of a long jump event were erroneously

recorded.

20. When the case was being heard, we directed the

respondents to file an affidavit as to whether the records are available

or not. In response to such a query, the respondents have filed an

affidavit dt.07-03-2024, wherein, it was stated that the records are not

available and in the absence of such records, the question of

considering the case of the appellants for appointment to the post of

Police Constable without there being a record would not arise. As

records are not available, the question of directing the respondents to

consider the case of the appellants for appointment to the post of Police

Constable without there being a record would not arise.

21. In view of the law laid down by the Supreme Court in

Ramesh Chandra Shaw's case (3 supra) and Ashok Kumar and

another's case (4 supra), the question of considering the cases of

appellants for appointment as Police Constables without subjecting

them to PET would not arise in the absence of any record to prove that

the appellants have cleared the higher readings in a high jump event.

12 AKS,J & RRN,J W.A.Nos. 45 & 58 of 2024

The courts cannot give any direction to consider their cases for

appointment as Police Constable that too without subjecting the

Physical Efficiency Test (PET). In the instant case, the learned Single

Judge has rightly directed the respondents to permit the appellants to

participate in the high jump event within four weeks and if they cleared

the said test, then their cases can be considered. Therefore, this Court

is not inclined to interfere with the impugned order of the learned

Single Judge.

22. Accordingly, both the Writ Appeals are dismissed. No

costs.

23. As a sequel, the miscellaneous petitions pending, if any,

shall stand closed.

_______________________________ ABHINAND KUMAR SHAVILI, J

_________________________________ NAMAVARAPU RAJESHWAR RAO, J Dt.03-05-2024 Kvr