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2009 DIGILAW 785 (GAU)

Kirlipadu v. State of Arunachal Pradesh

2009-11-11

RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. This writ petition has been filed seeking a direction to the Arunachal Pradesh Public Service Commission (hereinafter referred to as 'the Commission') to recommend the name of the writ Petitioner for appointment in the post of Deputy Superintendent of Police for which a select list has been drawn up by the Commission in which list the name of the Petitioner does not find mention. 2. The brief facts that will be required to be noticed for the purposes of the present adjudication may be set out hereunder: By an advertisement dated 25.7.2006,42 posts in different Services under the State including the Arunachal Pradesh Civil Service (Entry Grade) and Arunachal Pradesh Police Service (D. S. P) were advertised by the Commission. A preliminary examination of the eligible candidates was held on 4.2.2007 the result whereof was declared on 31.3.2007. The successful candidates in the preliminary examination were required to submit another application for admission to the main written examination. In the application to be submitted the candidates were required to indicate their option/preference for the Services/posts which were advertised. The Petitioner, at that stage, had opted for the Arunachal Pradesh Civil Service (Entry Grade). The main examinations were held between 26.12.2007 and 21.1.2008. The result of the main examination was declared on 14.10.2008. The Petitioner qualified in the said examination and became eligible to take part in the viva-voce test which was to follow thereafter. At this stage, all the candidates were asked to resubmit fresh options for the particular posts/Service in which they desired to be appointed. Such options were to be exercised in order of preference. The aforesaid exercise calling upon the candidates to re-submit their options became necessary in view of the fact that during the period when the selections remained pending, fresh requisitions were submitted to the Commission by different departments for additional posts thereby raising the number of total posts to 101 from the initial 42 posts. The Petitioner, this time, opted for the Arunachal Pradesh Police Service indicating the said Service to be his first option. The number of posts of Deputy Superintendent of Police in the said Service had increased to 7 from the 3 numbers of posts advertised on 25.7.2006. 3. The Petitioner, this time, opted for the Arunachal Pradesh Police Service indicating the said Service to be his first option. The number of posts of Deputy Superintendent of Police in the said Service had increased to 7 from the 3 numbers of posts advertised on 25.7.2006. 3. On being called, the Petitioner went through the physical test which was mandatory for the candidates opting for the Arunachal Pradesh Police Service and also faced the interview. A total number of 28 candidates who had opted for the Police Service qualified in the physical test which included the Petitioner. The final result of the selection in respect of all the 101 posts was declared on 17.1.2009. The name of the Petitioner was not included in the list of successful candidates which, however, contained only 6 names against the 7 available posts of Deputy Superintendent of Police i.e. the candidates placed at SI. Nos. 16, 58, 61, 69, 70 and 87. 4. Aggrieved by the exclusion of his name from the list of selected candidates for appointment in the post of Deputy Superintendent of Police, the Petitioner filed an application under the Right to Information Act, 2005 seeking the marks secured by each of the 28 candidates who had qualified in the physical test for the post of Deputy Superintendent of Police. The statement of marks enclosed to the writ petition would indicate that in terms of the marks secured the position of the Petitioner in order of merit is at SI. No. 7. The first six candidates were declared to be successful. Specifically, the aforesaid marks indicate that the sixth candidate recommended by the Commission secured a total of 862.00 marks whereas the Petitioner secured 853.50 marks and the next candidate in order of merit secured 849 marks. It is in the aforesaid circumstances and, particularly, in view of the availability of one post of Deputy Superintendent of Police that this writ petition has been filed seeking a direction to the Commission to recommend the name of the Petitioner. 5. The claims made in the writ petition have been resisted by the Commission by filing an affidavit. It is in the aforesaid circumstances and, particularly, in view of the availability of one post of Deputy Superintendent of Police that this writ petition has been filed seeking a direction to the Commission to recommend the name of the Petitioner. 5. The claims made in the writ petition have been resisted by the Commission by filing an affidavit. In the aforesaid affidavit, it has been admitted that with the additional/fresh requisitions the number of posts of Deputy Superintendent of Police for which recruitment was made by the Commission had gone upto seven and further than only six candidates, in order of merit, had been recommended. The Commission, in its affidavit, has further stated that in order of overall merit vis-à-vis all candidates, regardless of the options exercised, the position of the Petitioner was at SI. No. 106. As there were candidates better placed in merit than the Petitioner, the Commission had decided not to recommend the name of the Petitioner. Instead, one post of Deputy Superintendent of Police was kept vacant and the names of only six successful candidates have been recommended for appointment in the post of Deputy Superintendent of Police. The above exercise, according to the Commission, is in conformity with the requirement of a Combined Competitive Examination based on merit. Therefore, according to the Commission, the exclusion of the name of the Petitioner from the list of recommended candidates is justified. 6. Sri I Choudhury, learned Counsel for the Petitioner has vehemently argued that the Petitioner having opted for the Police Service as his first choice and his marks having placed him at the 7th position, the stand taken by the Commission is plainly unacceptable as in drawing up the merit list for each Service the preference/option indicated by a candidate has to be taken into account. According to Sri Choudhury, the exclusion of the name of the Petitioner from the list of recommended candidates discloses an apparent error resulting in gross injustice to the Petitioner which needs to be corrected by the Court. Accordingly, it is submitted that the direction prayed for in the writ petition is fully justified in law. 7. According to Sri Choudhury, the exclusion of the name of the Petitioner from the list of recommended candidates discloses an apparent error resulting in gross injustice to the Petitioner which needs to be corrected by the Court. Accordingly, it is submitted that the direction prayed for in the writ petition is fully justified in law. 7. Opposing the contentions advanced on behalf of the writ Petitioner, Sri N. Tagia, learned Standing Counsel for the Commission has placed the statements made in the counter affidavit of the Commission, particularly, those contained in paras 8 and 9 to contend that on an overall consideration of merit the Petitioner was placed at SI. No. 106 whereas the recruitment was for 101 posts. According to Sri Tagia, the merit position of the Petitioner in the overall merit list justified his exclusion, notwithstanding the fact that in so far as the post of Deputy Superintendent of Police is concerned, the Petitioner was placed at SI. No. 7. Sri Tagia further submits that the selection of candidates being on the basis of overall merit, the Petitioner is not entitled to the directions prayed for. 8. The rival contentions advanced on behalf of the parties have received the most anxious consideration of the Court. A perusal of the provisions of the Arunachal Pradesh Public Service Combined Competitive Examination Rules, 2001 including the procedure contained in the Schedule and the Appendix to the said Rules do not indicate that in preparing the final select list of successful candidates the option (s) for a particular Service/Services indicated by a candidate, in order of priority, can be ignored by the Commission. The absence of such a provision in the Rules, perhaps, is indicative of the ground realities which can be best illustrated by a specific example: A candidate may opt, say, for the Arunachal Pradesh Civil Service (Entry Grade) as his only choice of service. In the final select result he may have been placed, say, at SI. No. 41. The recruitment could be for 40 posts in the Arunachal Pradesh Civil Service and coincidentally all the candidates placed above him i.e. 1 to 40 may have opted for the Arunachal Pradesh Civil Service. In that event, the candidate placed at SI. No. 41 would stand excluded and cannot be recommended for the Service for which he had opted. The recruitment could be for 40 posts in the Arunachal Pradesh Civil Service and coincidentally all the candidates placed above him i.e. 1 to 40 may have opted for the Arunachal Pradesh Civil Service. In that event, the candidate placed at SI. No. 41 would stand excluded and cannot be recommended for the Service for which he had opted. As he had not opted for any other Service his name will not appear in the final select list. As against the above, there could be a candidate placed at, say, SI. No. 60 who in addition to opting for the Arunachal Pradesh Civil Service may have opted for some other Service. Though he cannot be recommended for the Arunachal Pradesh Civil Service, yet, his merit position i.e. 60 may entitle him to be recommended for some other post unlike the candidate at SI. No. 41 who did not opt for any other Service. In that event, absolute merit is bound to suffer and has to be ignored and relative merit, as per the option (s) exercised, will be the determinative criteria It is because of all these uncertainties in a competitive examination that, time and again, it has been emphasised by judicial pronouncements that absolute merit is an elusive factor and it is the relative merit of candidates, as per options exercised, which would determine the final selection. 9. In the present case, the first option exercised by the Petitioner was the Police Service. His merit position amongst the candidates who had opted for the said Service was at SI. No. 7 which entitled him to be recommended against the 7th vacancy. However, his overall merit position was at SI. No. 106. In other words, there were five candidates who were placed above him on overall merit; but none of these five candidates had opted for the Arunachal Pradesh Police Service. In such a situation, notwithstanding the overall merit the final recommendation of the Commission should have been on the basis of relative merit of candidates as per their options. Any other view would not only amount to ignoring the options exercised by a candidate but is also bound to result in an anomalous and chaotic situation in preparation of the final select list which must be avoided. 10. Any other view would not only amount to ignoring the options exercised by a candidate but is also bound to result in an anomalous and chaotic situation in preparation of the final select list which must be avoided. 10. The Petitioner on the basis of his merit amongst the candidates who had opted for the Police Service being entitled to be recommended against the 7th post, the Court will have to hold that his exclusion from the list of the recommended candidates suffers from a fundamental error which has to be corrected. 11. Accordingly, this writ petition is allowed. The Public Service Commission is directed to recommend the name of the Petitioner for appointment in the Arunachal Pradesh Police Service against the 7th post which was embraced by the selection process in question. 12. The Court is of the view that as the Commission can be expected to make its recommendations at the earliest, no specific time frame ought to be fixed by the Court to enable the Constitutional Body to perform its functions as enjoined by law. 13. The writ petition, consequently, is allowed in terms of the above direction. Petition allowed