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2000 DIGILAW 492 (ORI)

PRADEEP KUMAR NAYAK v. STATE OF ORISSA

2000-10-25

A.S.NAIDU, P.K.MOHANTY

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JUDGMENT : P.K. Mohanty, J. - In both the aforesaid writ applications order of the Orissa State Administrative Tribunal, Cuttack Bench, Cuttack is under challenge. O.J.C. No. 13016 of 1999 is at the instance of some of the selected candidates for the post of Constable who got themselves impleaded as opp. parties before the Tribunal, O.J.C. No. 13349 of 1999 is by some of the selected candidates who were not parties before the Tribunal, but they have been aggrieved by the order of the Tribunal annulling the selection. 2. The brief facts of the case is that the petitioners along with opp. party No. 7 applied for the selection to the post of Constable in the district of Malkanagiri pursuant to an advertisement for that post by the Superintendent of Police, Malkanagiri. Opp. party No. 7 along with other candidates appeared in the physical test, but on measurement of height, weight and chest he was found lacking in minimum prescribed physical standard and, therefore, was disqualified from taking part in any further test. The petitioners having confirmed to the standard, were allowed to take physical, written and viva voce test and being successful, were empanelled in the select list. Opp. party No. 7 challenged the selection inter alia on the ground that the constitution of the Selection Board was illegal, the Superintendent of Police, Nowrangur having been substituted in place of the Superintendent of Police, Malkanagiri by the Director General of Police and the Inspector General of Police and he was illegally disqualified on wrong measurement of his chest and on several other grounds. 3. A Division Bench of the Orissa State Administrative Tribunal found that the Selection Board was illegally constituted by the Director General and Inspector General of Police and as such, the selection made, was vitiated in law and accordingly the selection has been annulled. The petitioners challenge the decision of the learned Tribunal. 4. 3. A Division Bench of the Orissa State Administrative Tribunal found that the Selection Board was illegally constituted by the Director General and Inspector General of Police and as such, the selection made, was vitiated in law and accordingly the selection has been annulled. The petitioners challenge the decision of the learned Tribunal. 4. Learned counsel for the petitioners assailed the impugned order mainly on the ground that the learned Tribunal has committed an error of record and gross illegality in finding that the Director General and the Inspector General of Police did not satisfy himself about the reasons for the absence of the Superintendent of Police, Malkanagiri and record the reason for substitution of the Superintendent of Police, Nowrangpur for Superintendent of Police, Malkanagiri as a member of the Selection Board and hence, the constitution of the Selection Board was vitiated and that the Tribunal ought to have held that opp. party No. 7 who was an applicant before the Tribunal in the Original Application having participated in the process of selection, he having been found disqualified, could not have turned round and challenge the constitution of the Selection Board itself. 5. Mr. D. P. Sarangi, learned counsel for opp. party No. 7 however contends that a reading of the note appended to Clause-5 of the Orissa Police (Method of Recruitment of Constables) Order, 1999, it would be amply clear that in case of absence of a member of the Board only, the Director General and Inspector General of Police for the reasons recorded in writing could appoint a substitute, but no order having been passed by Director General of Police, the Tribunal has rightly held that the constitution of the Board is vitiated and the selection should be annulled. It is further contended that opp. party No. 7 having not participated in the main selection process as alleged, but having been illegally kept out of the selection because of the wrong measurement, he is not precluded in law from challenging the constitution of the Board and as such, there is no infirmity or illegality in the order of the learned Tribunal for which this Court should interfere. 6. 6. The selection and recruitment to the post of Police Constable are regulated by "The Orissa Police (Method of Recruitment of Constables) Order, 1999 (hereinafter called 'the Recruitment Order') made by the State Government in exercise of powers u/s 2 of the Police Act, 1961. The Superintendent of Police is the appointing authority under Clause 2 (a) and each district/establishment is to constitute separate cadre within the district/establishment. The post in the cadre of Constable is to be filled up by direct recruitment from the open market as contemplated under Sub-clauses (1) and (2) of Clause-3 of the Recruitment Order, 1999. 7. A Selection Board of such recruitment is to be constituted with the approval of the Director General and Inspector General of Police under Clause 5 of the Recruitment Order, which may be quoted hereunder: " 5. There shall be constituted a Selection Board with the approval of the Director General and Inspector General of Police, consisting of the following : (a) Renage Deputy Inspector General of Police of the concerned district/establishment - Chairman (b) Superintendent of Police of the concerned Dist./Estt. - Member (c) Commandant/Deputy Commandant of the Orissa Special Armed Police Battalion to be nominated by the Director General and Inspector General of Police - Member. (d) District Welfare Officer of the concerned district-Member. NOTE : Where recruitment is made for more than one district or one District and some other establishment at one place, both the Senior Superintendent of Police or Superintendent of Police of the District and of the Establishment, as the case may be, shall be taken as Member(s). Incase a Range Deputy Inspector General of Police or Superintendent of Police of the District or Establishment is absent and where the Director General and Inspector General of Police is satisfied with the reasons of his absence, he may appoint any other Deputy Inspector General of Police or District/Establishment Superintendent as the Chairman and Member of the Board after duly recording the reasons." In view of the second part of the note, the Director General and Inspector General of Police is authorised to appoint any other person in place of the Deputy Inspector General of Police or the District/Establishment Superintendent, as the case may be, if he is satisfied with the reasons of absence. In the case at hand, undisputedly, the Superintendent of Police, Malkanagiri had sent a wireless message and connected copy of some correspondences received from some naxalites of the Peoples War Group to the Director General of Police, which discloses that the Superintendent of Police, Malkanagiri was threatened and asked to accept the candidature of non-Matric Scheduled Tribe candidates or else to postpone the selection or to face the consequences. The learned Tribunal, itself in the impugned order has observed that in the middle of page 21 In of file No. 1A (a)-23-99 On 26.4.1999 to Special I.O.P. (Admn). referring to some verbal orders that a draft Radio Message/Fax was placed at page 115/C for approval, and in the presence of this endorsement and orders thereof a draft Radio Message was approved on page 115/C to the address of Superintendent of Police, Nowrangpur with copy to the Superintendent of Police, Malkanagiri and D.I.G of Police, Sunabeda saying that the Director General and Inspector General of Police have been pleased to nominate him as a member of the Selection Board for the recruitment of Constables to be held at Malkanagiri from 27.4.1999 to 30.4.1999 and asking him to attend the same on 27.4.1999 at 10.00. A.M. This message bearing No. 26486 was signed on 25.4.1999, but however, the Tribunal seems to have observed that it is not clear as to who made the endorsement i.e. what his official designation was. We are not able to appreciate as to how learned Tribunal observed that in absence of the official designation it was not clear as to who made the endorsement. If an order was passed and pursuant to the order the draft Wireless/Fax Message was prepared and signed, as observed by the learned Tribunal, it could not have held that the orders were not passed by the competent authority. Moreover, in the judgment itself the contents of Wireless Message bearing No. 26485 dated 26.4.1999 addressed to the Home Secretary has been quoted and we would like to re-quote the same for better appreciation : "Sri Niranjan Nanda, IPS, S.P., Malkanagiri is a target by the P.W.C. Activist (.)They have held a threat that they will disrupt the recruitment of Constables if it is conducted by Sri. N. Nanda, S.P., Malkanagiri(.) In order to smooth passage of the recruitment process D.G.P., Orissa has been pleased to nominate Sri R.B. Mishra, S.P., Nawrangapur to act as Member of the Selection Board to be held from 27.4.1999 to 30.4.1999 (.) This may kindly be approved(.)" The aforesaid message unerringly point out that the Superintendent of Police, Malkanagiri was a target by the P.W.C. Activist and they have threatened to disrupt the recruitment process if it is conducted by Sri Nanda, Superintendent of Police, Malkanagiri. The Director General of Police on consideration of the situation and to avoid disruption nominated Sri R. B. Mishra, Superintendent of Police, Nowrangpur to act as a member of the Selection Board to be held from 27.4.1999 to 30.4.1999. It may be kept in mind that the message was being sent on 26.4.1999 and the recruitment was to start from the next day i.e., 27.4.1999 and the matter was taken up on the basis of the Radio/Wireless Message received from the Superintendent of Police, Malkanagiri between 24.4.1999 and 25.4.1999. On a proper scrutiny of the aforesaid message, therefore, would indicate that the Director General of Police has considered the matter and nominated the Superintendent of Police, Nowrangpur to act as a member of the Selection Board in place of the Superintendent of Police, Malkanagiri. The learned Tribunal seems to have taken exception to the fact that the Superintendent of Police himself has not expressed his inability to remain present in the Selection Board. On a reading of the Rules we do not find anything to suggest that the member in all cases has to express his inability and in that event only the substitute can be appointed. There may be very many reasons for making a change in the Selection Board if a member is incapacitated or absented from attending the. Board. 8. In the case at hand it is not disputed that the Superintendent of Police concerned received communication from some Naxalites of the People's War Group to allow non-Matric Scheduled Tribe candidates to participate in the interview which is contrary to the Recruitment Order and threatening was given that unless that be done, the recruitment shall be disrupted. In all fairness the Superintendent of Police has to appraise his Director General of Police the situation and accordingly it appears that he had done so necessarily seeking orders. In all fairness the Superintendent of Police has to appraise his Director General of Police the situation and accordingly it appears that he had done so necessarily seeking orders. On consideration of the relevant factors, if the Director General of Police exercises his powers and takes a decision on the basis of the report of the concerned Superintendent of Police that he may not be available or attending the Board, no exception can be taken. On a close reading of the notings in the file as quoted in the judgment of the Tribunal itself, the Tribunal ought to have held that the Director General of Police acted only on the basis of the report of the Superintendent of Police, Malkanagiri and the threat given to him by the Naxalites of the People's War Group and such situation ought to be construed in terms of the second part of the note appended to Clause-5 of the Recruitment Order. I any view of the matter, we find that the Tribunal has not approached the matter in its proper perspective and lost sight of the extraordinary peculiar situation of the case under which the substitution had to be made by the Director General of Police. The constitution of the Selection Board, therefore, cannot be held to be illegal or due to non-application of mind or there was no reason of remaking such substitution. 9. In view of our finding that the constitution/substitution of the Selection Board was rightly done by the Director General of Police, the contention of the learned counsel for the petitioners with regard to maintainability of the writ application at the instance of Opp. party No. 7 who participated in the Selection need not be gone into. opp. party No. 7 who was the applicant before the Tribunal was found ineligible in terms of the physical standard laid down under the Recruitment Order on measurement of his chest and, therefore, it cannot be held that he participated in the process of Selection to estop him in law from challenging the selection. On the question of disqualification of opp. party No. 7, it is submitted that after he was found disqualified, he obtained a certificate from the C.D.M.O. which discloses that the applicant had the required physical measurement, but the same were not accepted by the authorities. On the question of disqualification of opp. party No. 7, it is submitted that after he was found disqualified, he obtained a certificate from the C.D.M.O. which discloses that the applicant had the required physical measurement, but the same were not accepted by the authorities. Under Clause-3 of the Recruitment Order, 1999 the minimum physical standard of height, weight and chest of a candidate has been prescribed. It is also not disputed that opp. party No. 7-applicant appeared in the physical test and the measurement of his height, weight and chest was taken and he was found disqualified since he did not have the minimum required expansion of the chest. It appears from the stand taken by the State-opp. parties a number of opportunities were granted to him to qualify, but he could not come up to the standard. In such circumstances subsequent to the disqualification, obtaining a certificate from the C.D.M.O. is of no avail. No male fide have been alleged nor it has been stated as to how the measurement was wrong excepting that subsequent to the test he obtained a certificate of fitness. In such circumstances, if the applicant did not have the minimum physical standard prescribed there is no illegality in disqualifying him from taking any further test as required. 10. In that view of the matter, we allow the writ application, quash the order of the learned Tribunal dated 30.9.1999 in O.A. No. 1096 (c) of 1999. All interim orders stand vacated. A.S. Naidu, J. 11. I agree. Final Result : Allowed