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2004 DIGILAW 909 (PAT)

Upendra Kumar v. State Of Bihar

2004-09-06

V.N.SINHA

body2004
Judgment V.N.Sinha, J. 1. Interlocutory Application No. 5589 of 2003 and Interlocutory Application No. 1303 of 2003 have been filed praying therein to implead the applicants, of these two applications as petitioners in C.W.J.C. No. 11499 of 2003 as the applicants had also appeared in the selection test pursuant to the advertisement in the Hindustan Newspaper dated 7.1.2002 as containted in annexure 2 to the aforesaid writ application. As the case of the applicants of these two interlocutory applications and that of the writ petitioners is one and the same, in order to avoid multiplicity of the writ application I allow these two interlocutory applications and direct that the applicants of these two applications be also added as writ petitioners in C.W.J.C. No. 11499 of 2003. 2. The petitioners in both the writ petitions, C.W.J.C. No. 11499 of 2003 and C.W.J.C. No. 13838 of 2003 have assailed the order dated 25.8.2003, annexure 4 to C.W.J.C. No. 11499 of 2003, whereunder the Commandant of the Bihar Military Police-5 has informed the petitioners of the two writ applications and others that the selection process undertaken pursuant to the advertisement No. 1/2002 published in the Hindustan Newspaper dated 7.1.2002 has been cancelled for the reason that the Selection Board which was constituted to undertake the selection process was contrary to the provisions contained in the Bihar Police Manual Rule 661(b) read with Appendix 72 (4) of the said manual as the Selection Board which was constituted at the Zonal level did not include the Commandants of the different Battalions for which recruitments pursuant to the said advertisement were to be made. 3. Learned counsel for the petitioners have assailed the aforesaid order submitting that the instructions for constituting the Board at the Zonal level were approved by the Director General of Police as would appear from the notes recorded in the file bearing no. E-12-1-4/98, as contained in annexure 9 on 2 June, 2001. In compliance of the orders of the Director General of Police, the Inspector General of Bihar Military Police under memo no. 1683 dated 22.12.2001 directed the Deputy Inspector General of Bihar Military Police, Central Zone to constitute the selection Board at the Central Zone level by associating Shri Subhash Chandra Singh, Commandant, Bihar Military Police-14 in place of Shri Alok Raj, Commandant, Bihar Military Police-16. The aforesaid instructions are contained in annexure 1. 1683 dated 22.12.2001 directed the Deputy Inspector General of Bihar Military Police, Central Zone to constitute the selection Board at the Central Zone level by associating Shri Subhash Chandra Singh, Commandant, Bihar Military Police-14 in place of Shri Alok Raj, Commandant, Bihar Military Police-16. The aforesaid instructions are contained in annexure 1. In compliance of the aforesaid instructions as contained in annexure 9,1 the authorities of the Bihar Military Police reconstituted the Board as was directed by the Director General of Police and thereafter proceeded to publish the advertisement no.1 /2002 dated 7.1.2002, as contained in annexure 2 giving details of the different post of trade rank constable against which appiontments were to be made by the Board. The advertisement also indicated the minimum requirement which the applicants had to qualify in the selection test. 4. Pursuant to the advertisement as contained in annexures 2 to this application the selection process to recruit the trade rank constable was undertaken and the petitioners and others appeared in the physical as also written selection test. Once the selection test was over the authorities prepared a select list but for reasons best known to them they did not publish the result necessitating the petitioners and others to file C.W.J.C. No. 14325 of 2001. The petitioners of that writ petition submitted before this Court that having participated in the selection process and the same having been completed the authorities should by now have published the select list and issued the appointment letters but it is not known as to why the authorities are not proceeding with the publication of the select list and issue of the appointment letters. This Court having heard the petitioners as also the State respondents directed the petitioners of that writ petition to approach the Director General of Police, Bihar, under its order dated 26.3.2003, annexure 3 with further direction to the Director General to pass reasoned order within three months. 5. This Court having heard the petitioners as also the State respondents directed the petitioners of that writ petition to approach the Director General of Police, Bihar, under its order dated 26.3.2003, annexure 3 with further direction to the Director General to pass reasoned order within three months. 5. It appears that in compliance of the aforesaid direction of this Court dated 26.3.2003, the authorities including Director General of Police considered the matter and thereafter the impugned order dated 25.8.2003, as contained in annexure 4, has been issued whereunder it has been categorically said that pursuant to the advertisement no.1 of 2002, contained in annexure 2, the selection process was undertaken by a Board which was constituted at the Zonal level in which the Commandants of the different Battalions for which recruitments were to be made were not included as members of the Board, the constitution of such a Board was vitiated and was contrary to Rule 661 (b), Appendix 72(4) of the Bihar Police Manual and thus it was not in accordance with law to proceed with the process of appointment of those who were selected pursuant to the selection exercise undertaken by the Board which was constituted contrary to the Rule. 6. Thepetitioners now assail the aforesaid impugned order dated 25.8.2003 on the ground that the rules as it stood prior to its amendment vide notification dated 1.9.2001, as contained in annexure 8, permitted the authorities to proceed with the appointment by constituting the selection Board at the Zonal level. In this connection, learned counsel submitted that the process of appointment had begun on 2.6.2001 itself, when the then Director General of Police approved the constitution of the Board the subsequent amendment in the Bihar Police Manual should not vitiate the selection process as the process having begun on 2.6.2001 the subsequent amendment will not have any effect over the same. He further submitted that the petitioners having undertaken rigorous physical and written selection test pursuant to the advertisement for appointment they are not to be faulted because the authorities have chosen to violate the rules and they should not be allowed to suffer and the authorities should be directed to publish the select list and proceed with the appointment process. He further submitted that the petitioners having undertaken rigorous physical and written selection test pursuant to the advertisement for appointment they are not to be faulted because the authorities have chosen to violate the rules and they should not be allowed to suffer and the authorities should be directed to publish the select list and proceed with the appointment process. In this regard, learned counsel further submitted that in any view of the matter the subsequent action of the authorities is arbitrary as also against the legitimate expectation and principle of equity. To buttress his submission learned counsel for the petitioner relied upon the judgment of this Court in Kausalaya Devi & Ors. V/s. The State of Bihar & Ors. : 2000(2) P.L.J.R. 656 , paragraph 4 and laid emphasis on the four lines "once a process of selection starts the mode of appointment is to be followed on the basis of the Rule as was existing at the time of initiation of such selection." Having placed reliance on the said decision of this Court learned counsel further submitted that according to him the selection process had begun on 2.6.2001 the subsequent amendment made on 1.9.2001 should not have been taken into account while proceeding with the selection process pursuant to the advertisement dated 7.1.2002, annexure 2. 7. Learned counsel, thereafter, in order to buttress his submission in regard to legitimate expectation has placed reliance on a decision of the Supreme Court in M.P. Oil Extraction and ano. V/s. State of M.P. and others : (1997)7 S.C.C. 592 . Learned counsel further submitted that the Director General of Police under whose instructions the impugned order dated 25.8.2003 was issued ought not to have issued instructions to issue the same as normally the successor in office should not review the order passed by his predecessor. In this connection, learned counsel for the petitioners have placed reliance on a decision of the Privy Council in the case of R.T. Rangachari V/s. Secretary of State : A.I.R. 1937 Privy Council, 27. The said decision has been approved by the Supreme Court in the case of The Management of D.T.U. V/s. Shri B.B.L. Hajelay and Ano: A.I.R. 1972 S.C. 2452. The said decision has been approved by the Supreme Court in the case of The Management of D.T.U. V/s. Shri B.B.L. Hajelay and Ano: A.I.R. 1972 S.C. 2452. Having placed his reliance on the aforesaid legal submissions, learned counsel further canvassed that in any event this Court is a Court of equity and the petitioners who are not to be faulted in any respect as they had appeared in the selection process pursuant to an advertisement issued by the respondent authorities this Court should take an equitous view of the matter and direct the authorities to proceed with the selection test and publish the result of the selection process already undertaken and completed by the respondents. Having made the aforesaid submissions, learned counsel for the petitioners finally submitted that in any event, if this Court does not find favour with his aforesaid submissions then the petitioners should atleast be given age relaxation for their participation in the test pursuant to the subsequent advertisement. 8. On the other hand, learned counse! for the State, Mr. S.J. Rahman, G.P. 7 has submitted that true it is that the selectior process had begun under the approval anc direction of the then Director General of Police but while issuing those instructions the then Director General of Police, it appears, not only ignored the original provisions of the Bihar Police Manual but he further went on to ignore the provision of the amended Bihar Police Manual vide notification dated 1.9.2001, annexure 8, whereunder it was categorically provided that the Board for the selection of the constable in the Police/Battalion shall be presided over by the Superintendent of Police/Commandant and in the said Board the Commandants of different Battalions for which appointments were to be made were also to be associated. The constitution of the Board to undertake the selection process pursuant to the advertisement was contrary to the original as also amended provisions contained in Rule 661(b) read with Appendix 72(4) of the said Manual, as such the Director General of Police noticing the same issued instructions for cancellation of the selection process undertaken pursuant to an advertisement dated 7.1.2002 being contrary to the rules of the Bihar Police Manual which is framed under Article 309 of the Constitution of India. 9. 9. Learned counsel for the State has further submitted that the candidates who appeared in the selection process have no indefeasible right to force the authorities to proceed with the selection process as for good reasons the selection process can always be shelved midstream. In this connection he placed reliance on a decision of the Supreme Court in the case of State of M.P. and others V/s. Raghuveer Singh Yadav and Ors. (1994)6 S.C.C. 151 . Perusal of the said judgment indicates that in that case the selection process was changed alter issue of the advertisement and the authorities in consideration of the subsequent change in the appointment process were not proceeding with the selection process already undertaken and the High Court directed them to proceed then the Supreme Court said that the candidates who appeared in the selection process have no indefeasible right to enforce the authorities to go ahead with the selection process even after the publication of the result. In this case the situation is even better and the amendments have taken place before the issue of advertisement. As such, the authorities have rightly decided not to proceed with process of appointment as the constitution of the selection Board at the Zonal level without associating the Commandants of the different Battalions was wholly contrary to the provisions of Rule 661(b) read with appendix 72(4) of the Police Manual. 10. In regard to the submission that the petitioners are not at fault and they have appeared in the selection process pursuant to an advertisement Mr. Rahman, learned Government Pleader No. 7 candidly submitted that the constitution of the selection Board itself is vitiated as nobody on earth can ignore the rules, this Court should be slow in directing the authorities to continue with the selection process which is vitiated and contrary to rules. 11. In regard to the submission that this Court is a Court of equity and should direct the authorities to proceed with the erroneous selection process learned State counsel submitted that Court of equity will. also not ignore the provisions of rules made under Article 309 of the Constitution and this Court under Articles 226 and 227 of the Constitution should issue direction only in compliance of the rules and not contrary thereto. 12. also not ignore the provisions of rules made under Article 309 of the Constitution and this Court under Articles 226 and 227 of the Constitution should issue direction only in compliance of the rules and not contrary thereto. 12. Having considered the arguments of both sides and having perused the instructions of the Director General of Police dated 2.6.2001 as contained in annexure 9 as also dated 22.12.2001 as contained in annexure 1 as aiso the advertisement dated 7.1.5002, Annexure 2, I am of the view that constitution of the Selection Board at the Zonal level without associating the Commandants of different Battalions for which recruitments were to be made pursuant to the advertisement No. 1 of 2002, Annexure 2, was vitiated in law and was contrary to the provisions contained in Rule 661(b) read with Appendix 72(4) of the Bihar Police Manual. The constitution of the Selection Board being itself contrary to rules the subsequent instruction of the Director General of Police dated 25.8.2003, Annexure 4 whereunder he directed for cancellation of the selection undertaken by erroneously constituted Board, he committed no error rather he upheld the provisions of Bihar Police Manual as such, in my opinion, there does not appear to be any error in the impugned order dated 25.8.2003, contained in annexure 4, which is accordingly upheld. 13. Having upheld the impugned order I further observe that in the event of subsequent advertisement, if the petitioners wish to apply for appointment on the post of trade rank constable in the Bihar Military Police, they should be given relaxation in age to the extent permissible in terms of the advertisement no. 1/2002. 14. Both the writ applications are accordingly disposed of.