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J&K High Court · body

2009 DIGILAW 546 (JK)

Fayaz Hussasin Hajam v. State

2009-11-09

MOHAMMAD YAQOOB MIR

body2009
1. Petitioners having participated in the selection process for the post of Constable in J&K Police failed to get selected have challenged the selection process by medium of instant petition. 2. Respondents invited applications for the posts of Constables in J&K Police. The educational qualification has been specified as minimum 8th class from any recognized institution. Respondent No.2, Director General of Police, vide his order No.1499/1998 dated 18.5.1998 has constituted District Recruitment Boards headed by DIG of the concerned range for carrying out selection of candidates. Each District Board besides Chairman i.e. DIG, would comprise of three members i.e. (1) District SP, (2) Dy.S.P. (DAR) and (3) CPO/SPO. It is also provided that the Chairman may also co-opt any other official from the concerned District or his range office for speedy finalization of the recruitment process. 3. Petitioners belong to District Baramulla. Petitioners have contended in the petition that the selection has been made without following any reasonable criteria, the candidates were put to physical test/fitness test by inferior officers, interview was conducted in a casual manner, weightage has been given to the academic merit of the candidates which was not permissible, selection has been made Tehsil-wise basis which is discriminatory, finally based on such premises have prayed for quashment of the selection list. 4. At the very outset the contentions of the petitioners are liable to be rejected because the petitioners having responded to the advertisement notice and have actively without any demur participated in the selection process, their act of participation is totally calculated, therefore, it is not open for them to challenge the same. In this view I am fortified by the judgment captioned Dhananjay Malik & Ors. v. State of Uttaranchal & Ors, reported in 2008(2) Supreme 328, wherein Honble Apex Court has held:- "Having participated in the selection process without any demur a candidate, on becoming unsuccessful, is estopped from challenging the selection criterion." 5. Apart from aforesaid position, even otherwise also petitioners have no case. Reply affidavit filed on behalf of respondents 1 to 5 is a sufficient answer to the contentions of the petitioners. Apart from aforesaid position, even otherwise also petitioners have no case. Reply affidavit filed on behalf of respondents 1 to 5 is a sufficient answer to the contentions of the petitioners. It shall be quite relevant to quote herein-below para 5 and 6 of the reply of the respondents in detail: "5) In reply to para 5 of the writ petition, it is submitted that the petitioners 1 to 5 were found physically fit so far as their height/chest measurements are concerned. However, petitioner No. 6, namely, Manzoor was found under chest and therefore, could not qualify for ground tests. Petitioner No. 4, namely, Tasaduk after having been found fit in physical measurement did not appear for outdoor tests such as race, jump etc. which too were the pre-requisite tests for qualifying for viva-voce test. Petitioners 1 to 3, namely, Fayaz, Altaf and Iqbal could not qualify the out door/ground tests like 1500 meters race. So far as petitioner No. 5 is concerned, he qualified for viva-voce test. However, he could not acquire the required marks for being selected for the post of constable. He acquired 36 marks out of 60 whereas the cut off marks in the open merit category were 37, that is why he could not find place in the final selection list. The publication of select list in the local papers is admitted. 6)(i). In reply to para 6 and sub-clause (1) of the writ petition, it is submitted that reasonable criteria was followed in the selection of candidates. The physical test interviews were conducted from 22.6.1998 to 15.7.1998. The candidates from Pattan tehsil were subjected to required tests on 4th, 5th and 6th July. The contention of the petitioners that all the 1400 candidates from Pattan tehsil were subjected to required tests in two days only, is denied. In fact all the candidates from Pattan tehsil did not appear for the required tests. It is worth to note that candidates are firstly called for height/chest measurement. Only those candidates who are found fit in physical measurement are allowed to appear for outdoor tests like race, jumps etc. the said tests are qualifying tests and if any body fails in one of these tests like 1500 meters, 100 meters race, high/broad jumps, push ups, he is not allowed to go for remaining tests. Only those candidates who are found fit in physical measurement are allowed to appear for outdoor tests like race, jumps etc. the said tests are qualifying tests and if any body fails in one of these tests like 1500 meters, 100 meters race, high/broad jumps, push ups, he is not allowed to go for remaining tests. Only those candidates are allowed to appear in viva voce who qualify all the five events of outdoor tests. All the candidates from Pattan tehsil did not qualify the physical measurement/ground tests. That is why only those candidates who qualified the above tests were called for viva-voce, so it is not correct to state that 1400 candidates were subjected to all the requisite tests in 2 days. The actual No. of candidates from Pattan Tehsil who qualified for viva-voce test was 82. It is also incorrect that inferior police officials subjected the candidates to physical and other tests. The fact is that senior police officers were members of the selection board. The selection Board for the selection of constables was constituted by the Director General of Police J&K vide order No.1499 of 1998 dated 18.5.1998. It is further submitted that besides respondents 3, 4 & 5, SP(Ops) Baramulla and I/C CPO Baramulla were also the members of the selection Board and the viva-voce was conducted by all the members of the Board headed by Chairman i.e. DIG Baramulla. It is further submitted that the tests were conducted properly and with due care. Petitioner No. 6 Manzoor was found physically unfit, therefore, not allowed to appear in outdoor tests etc. It is worth to note that the measurement of a person so far as his chest is concerned can vary from time to time. A person can get his chest expanded if he subjects himself to vigourous physical exercises for a long period regularly. At the time of prescribed tests, the petitioner No. 6 was found under chest. " 6. The said reply has remained to be countered. The position as emerged in para 5 and 6 having not been controverted has to be accepted as correct. It is made clear that during the process of selection a particular criteria has been adopted. Before a candidate could be invited for appearing in the interview i.e. viva voce, he had to qualify five events i.e. height/chest measurement, race, jumps and push ups. It is made clear that during the process of selection a particular criteria has been adopted. Before a candidate could be invited for appearing in the interview i.e. viva voce, he had to qualify five events i.e. height/chest measurement, race, jumps and push ups. It is specifically pleaded that petitioners 1 to 5 were found physically fit so far as their height and chest measurements are concerned, petitioner No.6 was found under chest. Petitioners 1 to 3, namely, Fayaz, Altaf and Iqbal have failed to qualify the outdoor/ground tests like 1500 meter race. Petitioner No.4, namely, Tasaduk, after qualifying the measurement test failed to appear for outdoor tests, such as race, jumps etc. In view of the stated position, petitioners 1 to 4 and 6 could not qualify so as to be called for viva voce. Petitioner No.5 though had qualified for viva voce and was called for the same but could secure only 36 marks out of 60 when the cut off marks in the open merit category were 37. 7. The first contention of the petitioners that the physical fitness tests were conducted by inferior officials, has no meaning as petitioner No.5 had qualified all the physical tests and was called for viva voce whereas petitioner No.l to 3 failed to qualify in 1500 meter race. On failure they cannot claim that the tests were not conducted properly. 8. It is further contended that the petitioner Manzoor was physically fit as he was also found physically fit in the year 1997 and even if his chest is measured, that will be found as per the prescribed standard. This plea has been specifically refuted by the respondents in their reply by stating that the position of the chest can vary from time to time. It can get expanded if a person undergoes vigorous physical exercise for a long period. At the time of conducting test of petitioner No.6, he was found under-chest. If the contention of the petitioners would be taken to be correct that the tests were not conducted properly, then how petitioner No.5 could qualify for viva-voce. 9. The second contention of the petitioners is that the interview was conducted in a casual manner. Firstly the petitioners No.1 to 4 and 6 did not qualify for the viva voce, therefore, it cannot lie in their mouth to say that the interview was conducted in a casual manner. 9. The second contention of the petitioners is that the interview was conducted in a casual manner. Firstly the petitioners No.1 to 4 and 6 did not qualify for the viva voce, therefore, it cannot lie in their mouth to say that the interview was conducted in a casual manner. Same is true about petitioner No.5 who has missed selection by one mark as the last candidate selected has obtained 37 marks whereas petitioner No.5 has secured 36 marks. The contention about the casual approach in conducting the viva voce is totally illogical. 10. Though the learned counsel for the petitioners would contend that large number of candidates were interviewed within two days but it is clarified in the reply that all the 1400 candidates from Pattan tehsil did not qualify for the viva, so enough time was given to the qualified candidates during the course of viva. Petitioner No.1 to 4 and 6 having not qualified for viva, therefore, contention of conducting interview in a casual manner is totally irrelevant. 11. The another contention that the weightage has been given to the academic merit of the candidates, again has no relevance because petitioners 1 to 4 and 6 did not qualify for interview, so the question of weightage has no relevance. 12. It is further contended that no weightage could be given to the height, chest and race, a person physically fit is fit for all purposes so has to be considered. This contention is totally without any substance because after all it is selection authority concerned who have to see as to which candidate could be most appropriate for the job. Their position cannot be altered, more so when the petitioners have participated in the selection process. 13. Another contention that the selection has been made Tehsil wise again has got no relevance because for a failure it is irrelevant as to whether selection has been made Tehsil wise or district wise. Petitioners 1 to 4 and 6 have failed i.e. petitioner No.6 was under-chest, petitioner No.l to 3 did not qualify 1500 meter race and petitioner No.4 did not appear for the tests i.e. for race and jump. Casual approach of the petitioners in not participating in five events has disentitled them from being called for viva voce. For their own failures and faults they cannot attribute motives against the selection authority. Casual approach of the petitioners in not participating in five events has disentitled them from being called for viva voce. For their own failures and faults they cannot attribute motives against the selection authority. It is to be made clear that in the advertisement notice itself para 6 is incorporated which reads as under:- "6. Candidates shall have to appear for physical measurements and other tests as may be prescribed by the Selection Board....." 14. Either the petitioners should have challenged this condition incorporated in the advertisement notice or else should have participated in all such physical tests as were prescribed by the Board. 15. On perusal of selection record as produced, it is found that no irregularity has been committed in excluding the petitioners. Therefore, petition being devoid of merit is dismissed.