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J&K High Court · body

2012 DIGILAW 212 (JK)

Shoukat Noor & anr v. State of J&K & Ors.

2012-05-03

J.P.SINGH

body2012
SWP No. 1112/2010, CMP Nos. 605/2011, 606/2011, 3447/2010, 1554/2010, 4229/2010, SWP No. 966/2010, CMP No. 1353/2010, SWP No. 1014/2010, CMP No. 1425/2010, SWP No. 1124/2010, SWP No. 1167/2010, CMP No. 1634/2010, SWP No. 1209/2010, CMP No. 1693/2010, SWP No. 1210/2010, CMP No. 1694/2010, SWP No. 1275/2010, CMP No. 1803/2010, SWP No. 1293/2010, CMP No. 1821/2010, SWP No. 1329/2010 CMP No. 1879/2010, SWP No. 1360/2010, CMP No. 1931/2010, SWP No. 1379/2010, CMP No. 1948/2010, SWP No. 1536/2010, CMP Nos. 1921/2011, 2137/2010 & D-1200/2011, SWP No. 1910/2010, CMP No. 2671/2010, SWP No. 2357/2010, CMP No. 3332/2010, SWP No. 2511/2010, CMP No. 3551/2010, SWP No. 2517/2010, CMP No. 3560/2010, SWP No. 2562/2010, CMP No. 3615/2010, SWP No. 2585/2010, CMP No. 3649/2010, SWP No. 2675/2010, CMP No. 3751/2010, SWP No. 2746/2010, CMP No. 3864/2010 Shoukat Noor & anr. V. State of J&K & Ors. Arvind Kapoor V. State of J&K & Ors. Vikrant Manhas & ors. V. State of J&K & Ors. Bhanu Pratap Singh & ors. V. State of J&K & Ors. Nittan Gupta V. State of J&K & Ors. Ankush Jamwal & ors. V. State of J&K & Ors. Deepak Kumar V. State of J&K & Ors. Manoj Dogra. V. State of J&K & Ors. Amit Wali & anr. V. State of J&K & Ors. Kuldeep Singh V. State of J&K & Ors. Ajay Kumar Sharma & ors. V. State of J&K & Ors. Aftaz Ahmed. V. State of J&K & Ors. Sajid Ali Mir & ors. V. State of J&K & Ors. Raj Gopal & ors. V. State of J&K & Ors. Vishal Sharma & ors. V. State of J&K & Ors. Sonia Sambyal & ors. V. State of J&K & Ors. Mohd. Tahiar. V. State of J&K & Ors. Vikram Singh. V. State of J&K & Ors. Waseem Chowdhary. V. State of J&K & Ors. Ranjit Singh & ors. V. State of J&K & Ors. Amit Kumar & ors. V. State of J&K & Ors. 1. The Director General of Police, Jammu and Kashmir, Jammu, invited Applications from the Permanent Residents of the State of Jammu and Kashmir for Selection to the posts of Sub-Inspector in the Jammu and Kashmir Police in its Executive, Auxiliary, Armed and Telecommunication Wings vide Advertisement Notice Nos. Amit Kumar & ors. V. State of J&K & Ors. 1. The Director General of Police, Jammu and Kashmir, Jammu, invited Applications from the Permanent Residents of the State of Jammu and Kashmir for Selection to the posts of Sub-Inspector in the Jammu and Kashmir Police in its Executive, Auxiliary, Armed and Telecommunication Wings vide Advertisement Notice Nos. Pers-A-400/2009/4414-513, Pers-A-400/2009/4514-613, Pers-A-400/2009/4614-713 and Pers-A-400/2009/4714-813 Dated 29.01.2009 indicating therein, inter alia, the Minimum Educational Qualification, Age and Needed Physical Standard for the posts, besides the tests to which the candidates shall be put. These Tests included- (i) Physical Measurement Tests; For those candidates who possessed the required standards viz; age, educational qualification and physical standard; (ii) Outdoor Tests; (iii) Written Examination; For those candidates who qualify the physical measurement/outdoor tests; and (iv) Viva-voce/Personality Assessment Test; For those candidates who qualify the written test. In terms of the decision of the Police Establishment Board dated 26.06.2009, the process for Selection was notified vide Police Headquarters Jammu and Kashmir, Jammu s Order No. 2988 of 2009 dated 17.08.2009. Accordingly, a Central Recruitment Board comprising of Ten Officers with the Director General of Police, Jammu and Kashmir as its Chairman, besides Seven Range Level Recruitment Boards with Six members in each Board, were constituted. The Physical Tests required to be conducted during the Selection process were also indicated in the Order. The Tests were, accordingly, conducted in a phased manner according to the dates indicated for the purpose by some of the Range Boards whereas it was still in progress in other Boards when vide PHQ Communication No. Pers/400- 2009-III/41010 dated 20.10.2009 instructions were issued to all Range DIGs (Chairman Range Level Recruitment Boards) to hold Physical Measurement/Endurance Test of all those candidates who could not appear in the Physical Tests held earlier. Accordingly those Range Level Recruitment Boards where the Physical Tests had already been conducted, issued Notices in October and November, 2009 informing the dates for the Physical Tests of those candidates, who, for some specific reasons, were not able to participate on the earlier notified dates. Those found eligible, having cleared the Physical Endurance Tests, were invited for participation in the Written examination carrying 100 marks out of which 45 marks were kept for Objective Type Test, 25 marks for Essay and 10 Marks each for writing three paragraphs. Those found eligible, having cleared the Physical Endurance Tests, were invited for participation in the Written examination carrying 100 marks out of which 45 marks were kept for Objective Type Test, 25 marks for Essay and 10 Marks each for writing three paragraphs. On the basis of the merit of the candidates who had taken the Written Examination, the eligible candidates were short listed for interview in the ratio of 1:3 of the posts sought to be filled up. This was notified by the Police Headquarters in April 2010. 2. Those who had taken the Written Examination but were not short listed for interview, have filed these Writ Petitions questioning, inter alia, the Range Police Headquarter, Jammu s Physical Measurement/Endurance Test Notices issued by the Chairman Range Level Recruitment Board, Jammu-Range Jammu dated 27.10.2009 and Chairman Range Level Recruitment Board, Udhampur-Reasi Range dated 07.11.2009, besides seeking directions against the respondents to re-draw the merit in the Written Examination and thereafter conduct the interview of the petitioners for Selection and Appointment as Sub-Inspectors. 3. The petitioners challenge to the Selection process initiated by the respondents for the Selection of Sub- Inspectors, as projected in all these Writ Petitions, may broadly be summarized thus:- i) The initiation of Selection process without notifying the number of vacancies of the Sub-Inspectors intended to be filled up, was illegal. ii) The list of candidates short listed for interview was invalid, for the Staterespondents indulgence in unfair means in helping the departmental candidates while holding the Written Examination. iii) The questions attempted by the petitioners on the Question Paper were not evaluated only because these had not been attempted on the Answer Sheets. iv) The process employed by the respondents to evaluate the Questions attempted by the candidates was unfair which had adversely affected the determination of the petitioners merit and claim to selection. v) The respondents had acted illegally in permitting those candidates to appear in the Second Endurance Test, who had failed to appear in the Ist Endurance Test along with the petitioners, thereby permitting ineligible persons to compete with the petitioners and thus adversely affecting the determination of petitioners merit. vi) The Director General of Police had arbitrarily permitted holding of Second Endurance Test without the concurrence of the Board constituted for holding the Selection. vi) The Director General of Police had arbitrarily permitted holding of Second Endurance Test without the concurrence of the Board constituted for holding the Selection. vii) The Second Endurance Test was held without examining as to whether or not there was any justifiable reason for the absence of the candidates in the Ist Endurance Test. In Addition to the above common issues, the selection process and the selection of private respondents has been additionally questioned, inter alia, on the plea that they had not participated in the Physical Endurance Test and were selected despite their lower merit. The petitioners allegations raised against the private respondents have been denied by the State-respondents and some of the private respondents refuting the allegations disclosing requisite facts in support thereof. The stand taken by the official respondents and the private respondents in answer to the above pleas of the petitioners has not been controverted by the petitioners by placing any material on records. 4. The State-respondents Response to the Writ Petitions was found insufficient to meet the case set up by the petitioners on the issues appearing in paragraph Nos. 3 (i to vii), during the course of initial consideration of the Petitions, they, as also the petitioners were, therefore, permitted to supplement their pleadings. 5. Justifying the process initiated for Selection and the Selection, the State-respondents, in their Response/Supplementary Affidavit to the Writ Petitions, And the Issues that were projected by the learned counsel appearing for the petitioners, during the course of initial hearing, say that the posts of Sub-Inspectors available in the Four Wings of the Jammu and Kashmir Police, viz; Executive, Armed, Auxiliary and Police Telecommunications, were not disclosed in the Advertisement Notice of the Calendar Year 2009 because the proposals already mooted by the Department for creation of more posts of Sub-Inspectors, particularly in respect of the newly created Districts were under active consideration of the Government and had not been cleared before the issuance of the Advertisement Notices. The non-disclosure of the Wing wise vacancy position, it is stated, had not prevented or affected or for that matter caused any prejudice to the candidates in their participation in the Selection process. The petitioners, having opted to participate in the Selection process with the knowledge that the vacancy position had not been notified, are estopped from questioning the Selection process. The petitioners, having opted to participate in the Selection process with the knowledge that the vacancy position had not been notified, are estopped from questioning the Selection process. It is stated that before the initiation of the Selection process, the Police Establishment Board had indicated the procedure to be followed for the Selection, and an order to this effect was issued on 17.08.2009 by the Police Headquarters. The Range Level Recruitment Boards constituted vide order, referred to hereinabove, conducted the Physical Measurement Test and Physical Endurance Test of all the eligible candidates who appeared before the respective Boards on the Scheduled dates fixed by each Range Board as per the Notices published in this behalf. The tests were of qualifying nature only and no marks had to be awarded by the Boards to the candidates. Entries of the measurement tests and other tests were made on the Application Forms and proper Registers were maintained in this regard by each Range Board. After the Physical Tests were over in some of the Ranges, a Representation was received in the Police Headquarters that the candidates who were not keeping good health on the Scheduled Date of Physical Test held by Range Poonch-Rajouri be allowed to participate in the Physical Test due to be held in Range Baramulla-Kashmir. Similar Representations were made by numerous candidates before Range DIG s requesting them that they could not appear in the Physical Test already held on account of different reasons and that they be provided a chance to appear in the interests of justice. A decision was, therefore, taken to provide opportunity to only those candidates who, on account of some or the other reasons, could not appear in the Physical Tests held earlier. The instructions were, therefore, issued to all the Range DIGs (Chairman Range Level Recruitment Boards) vide Communication dated October 20, 2009 to hold the Physical Measurement/Endurance Test for all those candidates, who, for various cogent reasons, could not appear to take the Physical Tests held earlier and that due publicity be given to the holding of the Test. The decision is stated to have been taken with a view to provide fair chance to all those who could not appear in the tests on the scheduled dates for cogent reasons and additionally because the tests were of qualifying nature. The decision is stated to have been taken with a view to provide fair chance to all those who could not appear in the tests on the scheduled dates for cogent reasons and additionally because the tests were of qualifying nature. According to the State8 respondents, the Second Physical Endurance Tests were not conducted in the Ranges other than Rajouri-Poonch Range and Udhampur-Reasi Range because the Ist Endurance Test for other Districts was still in progress. According to the respondents only 59 candidates in total appeared in the Second Endurance Test in the two Ranges, i.e., 41 candidates in Udhampur-Reasi Range and 18 in Rajouri-Poonch Range. After the Physical Tests were over, the eligible candidates were put to Written Examination. The evaluation of the Answer Sheets was done by a Board of Senior Officers comprising of about 20 IPS/KPS Officers, who had joined the Police Service after their success in the competitive examinations. To maintain transparency and fairness, the codification of the Answer Sheets was also done and the Answer Sheets were issued at random to each examiner/evaluator for checking. Answers to the Objective Part of the Question Paper were checked by One Examiner and the Subjective Part by another at random to ensure fairness. The ratio of the candidates called for interview was 1:3 and accordingly the cut-off merit was fixed. All those who were above the cut-off mark were invited to appear in the interview. The cut-off merit in respect of each category/wing is stated as follows: Category Cut of merit OM RBA ST SC ALC SUPC Executive 44.5 28 29 10 22 35 Armed 42 31.5 28 12 35 32 Auxiliary 61.5 56 50 46 54.5 NIL Telecom Only 40 candidates appeared and all were called for interview. Two candidates from Rajouri-Poonch Range and 41 from the Udhampur-Reasi Range out of the total 59 candidates qualified in the Second Physical Endurance Test. Out of these candidates only 15 could qualify for interview, i.e., 5 for the post of S.I (Executive) and 10 for S.I (Armed). Out of 15 candidates, only 5 were from Open Merit Category for the post of S.I (Armed) where the cut-off merit was 42 marks. In the event of non-consideration of these 5 candidates, the merit would have been reduced to 41.5 marks in Open Merit Category. Out of 15 candidates, only 5 were from Open Merit Category for the post of S.I (Armed) where the cut-off merit was 42 marks. In the event of non-consideration of these 5 candidates, the merit would have been reduced to 41.5 marks in Open Merit Category. As per the merit list, there are 6 candidates having equal merit of 41.5 marks and in case of tie all of them would have to be called for interview. As no candidate out of 15 candidates had qualified for interview in the Open Merit Category for the post of S.I (Executive), therefore, the cut-off merit for the said post has remained unchanged even with the Second Endurance Test. Two candidates out of total 15 belong to RBA category for the post of S.I (Executive) where the cut-off merit was 28 marks. In case these two candidates were excluded then the cut-off merit would have been 27.5 and as per records, there are two candidates having 27.5 marks. However, none of the petitioners had secured 27.5 marks under the RBA category in Executive Zone. Similarly, four candidates under RBA category were called for interview in Armed Zone where the cut-off merit was 31.5 and in case of non-inclusion of these four candidates the merit would have come down to 31 marks. As per records, there are as many as 16 candidates with 31 marks under the RBA category in Armed Zone, however, none of the petitioners had secured 31 marks under RBA category in Armed Zone. There are 3 candidates, one each from SC, ALC & SUPC category in Executive Zone and one candidate from SC category in Armed Zone. In case these 4 candidates were also excluded from the zone of consideration, the cut-off merit still remains unchanged. None of the petitioners would, however, fall within the cutoff merit in these categories. 6. On the basis of the above facts and figures, the respondents say that the Second Endurance Test had not affected in any manner whatsoever the merit of the petitioners, in that, even if 15 persons who had qualified the Second Endurance Test had not participated in the Written Test, the petitioners were not to be short listed for interview because of their lower merit in the Written Test. 7. 7. To examine the submissions made by some of the learned counsel for the petitioners that the Questions attempted by the petitioners had not been evaluated, the Answer Sheets of those petitioners and some other Answer Sheets picked up at random from the Answer Sheets of the candidates produced by the learned State Counsel, were examined. 8. The methodology adopted by the State-respondents in the evaluation of the questions attempted by the petitioners and those whose Answer Sheets were picked up at random, was found similar, and fair. 9. The learned counsel who had initially expressed doubts about the proper evaluation of the petitioners Answer Sheets, however, later did not press their Objections when the petitioners Answer Sheets were examined in the Court. 10. The allegations of unfairness attributed to the respondents in holding the Written Examination are vague, ambiguous and uncertain. These cannot, therefore, be looked into in exercise of extra ordinary writ jurisdiction of the Court. Even otherwise after having gone through the records produced by the learned State Counsel, these allegations were found without merit and the learned counsel appearing for the petitioners too, in all fairness, did not press the allegation of unfairness attributed to the respondents in the conduct of the Written Test. Their emphasis was, however, only on the issue that the holding of the Second Endurance Test by the respondents was illegal and malafide, in that, it was intended to convert the petitioners merit into de-merit by bringing in those who had rendered themselves ineligible to participate in Selection because of their omission to participate in the Ist Endurance Test, into the zone of consideration. 11. Learned counsel for the parties were heard extensively on the main issue that survived for consideration in the Petitions, as to whether the holding of the Second Endurance Test by the State-respondents for those who had failed to participate in the Ist Endurance Test, justified ?. And whether the Second Endurance Test had adversely affected the merit of the petitioners? 12. I have considered the submissions of the learned counsel for the parties on the above questions as also on the issue as to whether or not the petitioners were entitled to question the Selection process in view of their participation therein despite respondents holding the Second Endurance Test of those who had not participated in the earlier Endurance Test. 13. I have considered the submissions of the learned counsel for the parties on the above questions as also on the issue as to whether or not the petitioners were entitled to question the Selection process in view of their participation therein despite respondents holding the Second Endurance Test of those who had not participated in the earlier Endurance Test. 13. Before dealing with the State-respondents and the interveners Objections to the maintainability of the Writ Petitions filed before the conclusion of the Selection process, the issue regarding the holding of Second Endurance Test, the star issue that was demonstrated vehemently during the debate, needs to be addressed in the light of the petitioners adjudged merit in the Written Test, information in regard whereto was made available by the learned State counsel. To deal with the issue, regard needs to be had to the provisions of the Jammu and Kashmir Police Rules, 1960. 14. Chapter VII of the Jammu and Kashmir Police Rules, inter alia, prescribes the method of recruitment to the post of Sub Inspectors in the Police Department of the State Government. In terms of Rule 175 of the Rules, applications are to be invited by the Director General of Police for such posts and the Advertisements so issued are required to be given the widest possible publicity so as to attract large number of applications making the range of selection wide. The eligible candidates are required to be tested physically, orally, as well as in writing in a manner, and by a Board, as determined by the Director General of Police. 15. The Director General of Police, in terms of the above referred Rule is, therefore, the controlling Authority for the Selection of the Sub Inspectors and the Board constituted for the Selection is to work under his control, supervision and directions. 16. As it so appears from the records made available by the learned State counsel, the Director General was approached by the father of one of the candidates, who had applied for the post of Sub Inspector seeking conduct of the Endurance Test for his son, whose ankle was stated injured on 22.09.2009 thereby disabling him from taking the Endurance Test on 22.09.2009, either in another District where such tests had to be conducted later or for his exemption therefrom. 17. 17. It was during the course of consideration of the request on behalf of the injured candidate that the Director General of Police took decision to permit all those candidates who had missed the outdoor test date on account of various reasons. He, accordingly, directed carrying out of the Endurance Tests in the Ranges where the candidates had missed it, after giving due publicity to it. 18. Pursuant to the above decision of the Director General, two Ranges, i.e., Jammu Range, Jammu and Udhampur- Reasi Range, where the Endurance Tests had been concluded, issued Notices for participation in Endurance Test of those candidates, who had missed it earlier. 19. Only 59 candidates in total appeared in the Second Endurance Test in the two Ranges. 20. The holding of the Second Endurance Test for those who had missed it earlier, was not questioned by those who had participated in the earlier Endurance Test. 21. Those who cleared the Second Endurance Test, therefore, appeared in the Written Test along with all other eligible candidates. It is only after some of the candidates, who had appeared in the earlier Endurance Test, would not find them short-listed for the Interview, that they approached the Court questioning the State-respondents action of holding the Second Endurance Test for those who had not appeared in the earlier Endurance Test. 22. Although, the case set up by the petitioners in their respective Writ Petitions is that the Second Endurance Test was maneuvered by the respondents to adjust their blue eyed persons but there does not appear any substance therein when the issue is considered in the light of the facts disclosed by the respondents which reveal that out of 59 candidates, who were permitted to participate in the Second Endurance Test, only 41 would clear it and out of even these 41, only 15 could qualify the Written Test for participation in the Interview. No candidate out of these 15 would qualify for selection against the Open Merit Category and even those who competed against the Reserved Categories for the Posts of Sub-Inspector (Executive) and Sub-Inspector (Armed), did not affect in any way the merit of the petitioners. No candidate out of these 15 would qualify for selection against the Open Merit Category and even those who competed against the Reserved Categories for the Posts of Sub-Inspector (Executive) and Sub-Inspector (Armed), did not affect in any way the merit of the petitioners. Even if the 15 candidates, who appeared in the Second Endurance Test had not participated in the Written Test for their omission to appear in the Ist Endurance Test, the petitioners were not to be short-listed for Interview because of their adjudged lower merit in the Written Test as it so appears from the information supplied by the State-respondents. 23. Considering in the background of the petitioners merit in the Written Test and the cut-off marks of the last selected candidate in all categories, the Second Endurance Test held by the respondents is not found to have affected in any manner whatsoever, the petitioners Claim to selection for the posts of Sub-Inspectors on the basis of their merit. 24. This apart, the decision taken by the Director General of Police, Jammu and Kashmir, the Competent Authority controlling and supervising the selection of the Sub- Inspectors, to permit holding of the Second Endurance Test, with a view to permit large participation of candidates in the selection, cannot be faulted, for, the expression so that the number of applications may be large and the range of selection wide appearing in Rule 175 of the Police Rules, vests wide powers in the Director General to pass such orders as may be necessary to conduct the Selection process in such a way that the best talent was selected for the Police Force. Although, the records do not contain any material on the basis whereof it could be found as to what were the specific reasons that had prevented the candidates to participate in the Ist Endurance Test, yet the Director General, appears to have taken a liberal view in giving another chance to those who had missed the earlier Endurance Test, to ensure large participation for widening the range of Selection to select the best talent. 25. Even otherwise, there is no allegation against the Director General in directing the holding of the Second Endurance Test for any specific malafide reason or ulterior purpose. 26. 25. Even otherwise, there is no allegation against the Director General in directing the holding of the Second Endurance Test for any specific malafide reason or ulterior purpose. 26. In any case, in view of the lower merit of the petitioners in the Written Test, the holding of the Second Endurance Test, has not in any way affected the petitioners consideration to Selection, in that, even if the persons who had participated in the Written Test after the Second Endurance Test, had not so participated, the petitioners would not have qualified for Interview. 27. For all what has been said above, the petitioners having not been found affected in any manner whatsoever by the Second Endurance Test, the Selection process cannot be faulted. This apart, having participated in the Written Test knowing it full well that the candidates, who had not appeared earlier, had been permitted to participate in the Second Endurance Test, the petitioners had not objected their taking the Written Examination. The petitioners are, therefore, estopped from questioning the Selection process which has otherwise been found fair and suffering from no vice, malice or illegality. The petitioners learned counsel s submission that the State-respondents changing the rules of Selection during the Selection process would render the Selection illegal, is found without substance because the respondents have not changed the prescribed Selection procedure. The holding of the Second Endurance Test in the two Ranges when these Tests were still in progress and had to be concluded in rest of the Ranges, would not as such amount to any change in the Selection procedure. This is so because holding of the Second Endurance Test, which otherwise also was not relevant for determination of the merit of the candidates for Selection, amounts to extension of the time fixed for determination of initial eligibility of the candidates to participate in the Written Test, and if successful therein, in the Interview. Such extension, is within the jurisdiction and authority of the Employer, and the Authority supervising and controlling the Selection. The extension of the date for determination of initial eligibility of candidates for Selection, made pursuant to the directions of the Director General, to see that the range of Selection was wide, cannot, therefore, be faulted. 28. The non-disclosure of the vacancy position at the time of issuance of Advertisement Notices inviting Applications, has been properly explained by the respondents. The extension of the date for determination of initial eligibility of candidates for Selection, made pursuant to the directions of the Director General, to see that the range of Selection was wide, cannot, therefore, be faulted. 28. The non-disclosure of the vacancy position at the time of issuance of Advertisement Notices inviting Applications, has been properly explained by the respondents. Even otherwise, the petitioners having been permitted to participate in the Written Test after they were short-listed therefor, cannot have any grievance against the nondisclosure of the vacancy position at the time of issuance of the Advertisement Notices. 29. In view of the above discussion, the petitioners Writ Petitions questioning the Selection process and Selection of respondents, are found without merit. 30. These Petitions are, therefore, dismissed along with all connected CMPs lifting the interim orders passed during the currency of the Petitions. 31. The records and material made available by the learned State Counsel be returned to him.