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2011 DIGILAW 591 (ORI)

Natabar Sethi v. State of Orissa

2011-12-08

B.K.MISRA, L.MOHAPATRA

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JUDGMENT L. MOHAPATRA, J. – Both the writ petitions arise out of the order of the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1745 (C) of 1998. Out of eleven applicants before the Tribunal, nine have filed W.P.(C) No.10117 of 2009 and the rest two have filed W.P.(C) No.10214 of 2009. 2. Facts leading to filing of the Original Application before the Tribunal are necessary to be dealt with before the actual dispute raised by the learned counsel for both the parties is addressed. An advertisement was issued on 4.6.1992 for selection of candidates to be appointed as Sepoy as against 48 vacancies. The selection tests were held from 23.7.1992 to 2.8.1992. In pursuance of the said tests, 225 candidates were placed in the select list in order of merit. The said select list was exhausted on 31.10.1992 as all the selected candidates except six belonging to Scheduled Caste category were appointed. Since further vacancies were available, the Commandant, 6th Btn. of OSAP by letter dated 7.1.1993 informed the D.I.G., OSAP, Orissa for filling up the vacant posts of Sepoys. The D.I.G., OSAP in turn by letter dated 15.1.1993 directed for preparation of further list of 200 candidates out of those who had appeared in the recruitment test held in July/August, 1992 for filling up the vacancies. In compliance of the said direction of the D.I.G., OSAP, a second list containing the names of 280 candidates was prepared in order of merit. In February, 1993, the I.G. of police directed the Commandant to fill up the vacancies of Sepoys from the list of 280 candidates included in the second select list strictly according to merit. The Commandant in compliance of the direction of I.G. of Police by order dated 30.3.1993 issued appointment letters to sixteen candidates out of 280 candidates from out of the second select list. Challenging the said action of the Commandant, O.A. No. 2252 of 1992 was filed before the Tribunal. The said O.A. was disposed of on 2.12.1995 and the following directions were issued to the Commandant, 6th Battalion: (1) To induct the candidates out of the second merit list up to the number of vacancies existing as on 30th March, 1993. (2) In case any candidate called out of the said list is found ineligible, the next candidate in order of merit would be allowed such benefits. (2) In case any candidate called out of the said list is found ineligible, the next candidate in order of merit would be allowed such benefits. (3) Only vacancies existing up to 30th March, 1993 should be filled up from out of the second merit list of 280 candidates. (4) There would be no bar to have a fresh selection in respect of the vacancies available or anticipated after 30th March, 1993. 3. The above judgment of the Tribunal was challenged before the Hon'ble Supreme Court vide S.L.P. Nos. 3930 to 3934 of 1996. The Hon'ble Supreme Court disposed of the said batch of Special Leave Petitions on 10.9.1996 quashing the second select list prepared by the Commandant, 6th Battalion on 9.2.1993 in compliance of the order of I.G. of Police and directed for issuance of fresh advertisement indicating the number of vacancies available. It was further directed in the said order that candidates appearing in the second select list be allowed relaxation of upper age since they had earlier appeared in the tests and figured in the second list. In compliance of the above order of the Hon'ble Supreme Court, an advertisement was published on 14.8.1997 for filling up the vacant posts of Sepoys. Letters were written to each of the 280 candidates, who had figured in the second select list, treating them as separate class as they had become over aged and such overage was required to be condoned. Fresh applications were also called in the said advertisement. Though the recruitment test was initially scheduled to be held on 27.10.1997, the same was shifted to 31.11.1997. The present petitioners, who figured in the second select list prepared by the Commandant on 9.2.1993 and had also crossed the upper age limit, were permitted to take the physical tests, such as, Measurement, high jump and running. All the petitioners could not qualify in the running test and, accordingly, they were debarred from appearing in further test for the purpose of selection. As per the department, the petitioners were required to run 1.6 kilometers within a maximum period of six minutes but none of them could do so within the prescribed time. All the petitioners could not qualify in the running test and, accordingly, they were debarred from appearing in further test for the purpose of selection. As per the department, the petitioners were required to run 1.6 kilometers within a maximum period of six minutes but none of them could do so within the prescribed time. Having been declared disqualified in the running test, the petitioners again approached the Tribunal in the present Original Application challenging the action of the opposite parties in declaring them disqualified on the following grounds: (1) They had appeared in the physical tests in the year 1992 and as per the Police Order No. 286 of 1989, they were required to cover 1.6 kilometers in 8 minutes. Therefore, it could not be possible on their part to complete the same distance within the period of six minutes due to their higher age. (2) Since the Hon'ble Supreme Court had allowed the upper age relaxation, physical deficiencies to that extent should have also been condoned by the opposite parties considering the age of the petitioners. The opposite parties contested the proceeding before the Tribunal. It was the stand of the opposite parties before the Tribunal that when selection test was conducted in the year 1992 where the petitioners appeared, the Police Order No. 286 of 1989 was in operation. The said Police Order provided that a candidate seeking for appointment to the post of Constable/Sepoy has to run 1.6 kilometers in eight minutes. The said Police Order was modified in the year 1996 vide Police Order No. 297 of 1996 and it was provided that a candidate seeking for appointment to the post of Constable/Sepoy has to run 1.6 kilometers within a maximum period of six minutes. Fresh advertisement in compliance of the order of Hon'ble Supreme Court was issued in the year 1997 and, therefore, modified Police Order No. 297 of 1996 was applicable and the petitioners were required to run 1.6 kilometers within the maximum period of six minutes. They having failed to do so, they were declared disqualified and were not permitted to take further tests. The Tribunal in the impugned order observed that the Hon'ble Supreme Court had only allowed upper age relaxation but had not made any observation for condonation of deficiencies in physical test because of over age. They having failed to do so, they were declared disqualified and were not permitted to take further tests. The Tribunal in the impugned order observed that the Hon'ble Supreme Court had only allowed upper age relaxation but had not made any observation for condonation of deficiencies in physical test because of over age. Therefore, test having been conducted in the year 1997, the modified Police Order No. 297 of 1996 had been rightly followed and the petitioners admittedly having not been able to run 1.6 kilometers within six minutes were rightly declared disqualified. With the above observation, the Original Application was dismissed. 4. Shri Dhuliram Pattnaik and Ms. S. Pattnaik, learned counsel appearing for the petitioners in both the writ petitions submitted that in the Police Order No. 286 of 1989, it was prescribed that for the purpose of recruitment to the post of Constable/Sepoy, a candidate has to run 1.6 kilometers in eight minutes and all the petitioners were declared qualified in running. By the time they were directed to go through the physical test again in 1997 in pursuance of the order of the Hon'ble Supreme Court, five years had passed and, therefore, the standard should have also been relaxed accordingly so far as petitioners are concerned. Unfortunately in the modified Police Order No. 297 of 1996, it was prescribed that candidates seeking for appointment to the said posts have to run 1.6 kilometers within a maximum period of six minutes. The petitioners because of their age were not expected to run 1.6 kilometers within six minutes in the year 1997 which they could do in the year 1992. It was also contended by the learned counsel for the petitioners that the opposite parties are not sure as to which Police Order they have followed at the time of selection. Reference was made by the learned counsel for the petitioners to the Police Order No. 297 of 1996 attached to the counter affidavit filed before the Tribunal by the opposite parties and submitted that the said Police Order No. prescribes the following "Run 1.6 kms. if covered within five minutes - 1 mark, 5-8 minutes - No mark. In the Court, Police Order No. 286 of 1989 was produced by the learned counsel for the petitioners and the relevant portion thereof is quoted below: "Running – 1.6 kms. in 8 minutes". if covered within five minutes - 1 mark, 5-8 minutes - No mark. In the Court, Police Order No. 286 of 1989 was produced by the learned counsel for the petitioners and the relevant portion thereof is quoted below: "Running – 1.6 kms. in 8 minutes". Learned counsel for the State produced the Police Order No. 297 of 1996 from the record which provides as follows : "Run - 1.6 kms.- If covered within 4 minutes -1 mark 4-6 minutes-No mark (To qualify)". 5. As is evident from the above three different documents relating to the said Police Order No. 297 of 1996 had been produced before the Court. The first two referred to above prescribe that if a candidate runs 1.6 kilometers in five minutes, he is to get one mark. If the candidate covers the said distance between five to eight minutes he is not entitled to any mark. The 3rd document placed by the learned counsel for the State prescribes that if a candidate covers 1.6 kilometers within four minutes, he is entitled to one mark and if a candidate covers the said distances within four to six minutes he is not entitled to any mark but is declared to be qualified. This obviously means that any candidate, who fails to run the distance within six minutes, shall be declared disqualified. 6. Faced with the three documents, learned counsel for the State submitted that the first two documents have been taken from a book where there was a printing mistake and the petitioners cannot take advantage of the same. 7. Though there appears to be a clear difference in timing between the first two documents and third document referred to above, we accept the contention of the learned counsel for the State that possibly the first two documents relied upon by the learned counsel for the petitioners suffered from printing mistake as the third documents placed by the learned counsel for the State is from the original record maintained by the Department. We are, therefore, of the view that the petitioners having failed to run 1.6 kilometers within a maximum time limit of six minutes could be declared disqualified in terms of the Police Order No. 297 of 1996. 8. We are, therefore, of the view that the petitioners having failed to run 1.6 kilometers within a maximum time limit of six minutes could be declared disqualified in terms of the Police Order No. 297 of 1996. 8. Coming to the next question as to whether the physical deficiencies could be condoned by the Department considering the age of the petitioners when they took the test in the year 1997, we are in agreement with the view taken by the Tribunal that the Hon'ble Supreme Court except granting relief for condonation of over age had not granted any other relief to the petitioners. The Hon'ble Supreme Court had directed for filling up the posts by issuing a fresh advertisement in accordance with law. Reliance was placed by the learned counsel for the petitioners on a decision of this Court in the case of D.G. and I.G. of Police, Orissa, Cuttack v. Sri Jai Kishore Mishra reported in 2008 (II) OLR 323 . In the said reported case, selection process was undertaken in the year 1992 for appointment to the post of Sub-Inspector of Police. The matter came up before the Tribunal in relation to fixation of mark in the viva voce test. The Tribunal disposed of the said Original Application directing for a fresh physical test in November, 1996. The Tribunal also directed to condone the deficiencies in physical test because of the time gap. Challenging the order of the Tribunal, D.G. & I.G. of Police filed a writ application before this Court and in the said reported judgment, the writ application was dismissed. In paragraph-9 of the judgment, it was observed that when the recruitment for the post of Sub-Inspector was undertaken in the year 1992, parties to the proceeding were within the age group of 20 to 25 years and by the time the Tribunal directed for fresh physical test, they had become 35 years old and could not have cleared the physical test within the time stipulated as they could do when they were in age group of 20 to 25 years. Accordingly, the Tribunal had directed for condoning the deficiency in physical test, which was confirmed by this Court. In the present case, time gap between the first selection in the year 1992 and selection in the year 1997 is about five years. 9. Accordingly, the Tribunal had directed for condoning the deficiency in physical test, which was confirmed by this Court. In the present case, time gap between the first selection in the year 1992 and selection in the year 1997 is about five years. 9. Under these circumstances, it is open for the opposite parties to decide as to whether they should condone the deficiency in physical test considering the fact that by the time the petitioners took the second physical test, they were more aged and the time for completing the run of 1.6 kilometers had been reduced from eight minutes to six minutes. A decision in this regard be taken by the opposite parties within a period of two months from the date of communication of this order. With the above observation, both the writ petitions are disposed of. B.K. MISRA, J. I agree. Petitions disposed of.