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2015 DIGILAW 2171 (ALL)

Bimlesh Mishra v. State of U. P.

2015-07-29

D.Y.CHANDRACHUD, YASHWANT VARMA

body2015
JUDGMENT The special appeal has arisen from a judgment and order of the learned Single Judge dated 25 July 2013. 2. The matter, in issue, relates to the declaration of the result of a preliminary written test which was held on 11 December 2011 for the recruitment of Sub-Inspectors in the Civil Police and of Platoon Commanders in the Provincial Armed Constabulary (PAC). The Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 which have been made under the provisions of the Police Act, 1861, make provisions in Part V for the procedure for recruitment. Rule 15 lays down the procedure for direct recruitment to the post of Sub-Inspector and contemplates the holding of a physical standard test of a qualifying nature, which is followed by a preliminary written test. Candidates, who are declared successful in the preliminary written test, are required to appear in a physical efficiency test. Candidates, who are declared successful in the physical efficiency test, are required to appear at a main written examination and those who are selected, are required to appear in a group discussion upon which, a tentative select list is drawn up. 3. The dispute in the present case related to the manner in which the list of successful candidates at the preliminary written test was to be drawn up. The Police Recruitment and Promotion Board3 issued an advertisement on 1 December 2011 in the newspapers, stating that the preliminary written test would be divided into three sections, namely, (i) a general knowledge test consisting of 100 marks; (ii) a numerical ability test of 50 marks and (iii) a test of reasoning of 50 marks. The advertisement indicated that candidates would have to secure 40% in each of the three parts separately and 50% overall to be declared successful. This requirement was challenged in a batch of writ petitions before the learned Single Judge. 4. By the judgment and order of the learned Single Judge, which is impugned in the special appeal, the learned Single Judge held that Rule 15 (d) of the Rules of 2008, only stipulated that a candidate should secure at least 50% marks to be declared successful in the aforesaid examination. 4. By the judgment and order of the learned Single Judge, which is impugned in the special appeal, the learned Single Judge held that Rule 15 (d) of the Rules of 2008, only stipulated that a candidate should secure at least 50% marks to be declared successful in the aforesaid examination. The view which has been taken by the learned Single Judge is that Rule 15 (d) only required a candidate to have secured 50% marks overall upon which, he would be declared successful in the preliminary written test and the Board had no jurisdiction to alter the requirement contained in the statutory rules. The learned Single Judge held that the rules, in the present case, were not silent on this particular aspect, but prescribed minimum marks to be obtained for being declared successful at the test and hence, the Board had exceeded its jurisdiction by prescribing qualifying marks in respect of different sections of the preliminary written test. The order which the learned Single Judge passed while allowing the writ petition was to direct the State and the Board to finalise the result of the preliminary written test and only those candidates who had secured in the aggregate 50% marks and above would be treated to have qualified at the preliminary written test. 5. The submissions which have been urged in challenging the judgment and order of the learned Single Judge are two fold. The first submission is that a learned Single Judge of this Court at Lucknow had dismissed an earlier writ petition by a judgment and order dated 23 January 2013, Kendra Kunwar v. State of Uttar Pradesh4. The learned Single Judge had held that the requirement that a candidate should secure at least 40% marks in each of the three sections of the preliminary written test and 50% marks in the aggregate was duly notified to candidates in the newspapers much prior to the preliminary written test and hence, a candidate who had participated in the selection process and was declared unsuccessful would have no right to challenge the selection process. This judgment was followed by another learned Single Judge at Lucknow in Amit Kumar Singh v. State of Uttar Pradesh5, while dismissing a writ petition on 20 February 2013 and in Abhishek Kumar Singh v. State of Uttar Pradesh6, while dismissing a writ petition on 27 February 2013. This judgment was followed by another learned Single Judge at Lucknow in Amit Kumar Singh v. State of Uttar Pradesh5, while dismissing a writ petition on 20 February 2013 and in Abhishek Kumar Singh v. State of Uttar Pradesh6, while dismissing a writ petition on 27 February 2013. In the present case, it was urged that when the writ petition before the learned Single Judge came up on 31 January 2013, the learned Standing Counsel had drawn the attention of the Court to the judgment of the learned Single Judge dated 23 January 2013 upon which, time was granted to complete the pleadings. However, it was urged that no notice was taken of the judgments of the Lucknow Bench which had dismissed similar writ petitions and, in the present case, the learned Single Judge proceeded to allow the writ petition on the ground that the requirement of securing 40% marks in each of the three sections was ultra vires the statutory rules. 6. The second submission is that the learned Single Judge has proceeded on the basis that Rule 15 (d) contained a stipulation by which candidates had to secure at least 50% marks to be declared successful in the preliminary written test. On the contrary, the submission is that, by an amendment to Rule 15 (d) which was notified in the official gazette on 14 January 2011, the requirement of obtaining a minimum of 50% marks in the preliminary written test was completely deleted. The corollary of this submission is that after the amendment of Rule 15 (d) there being no stipulation in regard to the minimum marks for passing the preliminary written test, it was open to the State, by means of an administrative instruction, to impose a requirement which would best sub-serve the purpose of the examination. Hence, the stipulation that a candidate must obtain 40% marks in each of the three parts and 50% in the aggregate is a valid administrative instruction in the absence of a provision in the Rules. Moreover, it has been urged that as opposed to the main written examination, the purpose of a preliminary written test was to screen candidates and hence, the State could impose such a requirement by an administrative instruction. 7. Moreover, it has been urged that as opposed to the main written examination, the purpose of a preliminary written test was to screen candidates and hence, the State could impose such a requirement by an administrative instruction. 7. The learned Standing Counsel has raised a preliminary objection to the maintainability of the special appeal on the ground that the appellant participated at all stages of the selection process after the judgment of the learned Single Judge. Following the judgment of the learned Single Judge, the list of successful candidates was revised so that any candidate, who had obtained at least 50% marks in the aggregate in the preliminary written test, was declared to be successful so as to appear in the next stage of the selection process. This took place in 2013 after which, the main written examination was held in September 2013 and the group discussion took place in December 2014 and January 2015. Hence, it has been urged that a candidate, who has participated in the selection process, including the group discussion, cannot approbate and reprobate and would now not be entitled to challenge the final result by contending that candidates who had not secured at least 40% marks in each of the three parts of the preliminary written test should be excluded. 8. The judgment of the learned Single Judge which is impugned in the special appeal was delivered on 25 July 2013. The judgment contemplated that a revised list of successful candidates at the preliminary written test would be notified on the basis that a candidate obtaining at least 50% marks in the aggregate would be declared to be successful. The contention of the appellant is that in addition to obtaining 50% marks in the aggregate, each successful candidate ought to have secured at least 40% marks in every one of the three parts. In other words, if the plea of the appellant were to be accepted, the field of candidates would be narrowed while, on the other hand, the effect of the judgment of the learned Single Judge was to broaden the field of successful candidates. The appellant participated in the entire selection process which took place after the judgment of the learned Single Judge and on the basis of the directions contained in the judgment. The State was required to notify a revised list, which was done, of successful candidates. The appellant participated in the entire selection process which took place after the judgment of the learned Single Judge and on the basis of the directions contained in the judgment. The State was required to notify a revised list, which was done, of successful candidates. On the basis of that list, the main written examination was held, as stated by the learned Senior Counsel appearing on behalf of the appellant, on 14 September 2013. The result of the main written examination was declared in October 2014. Candidates who cleared the main written examination were called for group discussion which took place in December 2014 and January 2015. The appellant would have no grievance whatsoever if he was to be ultimately selected. He chose to file the special appeal in July 2015, after two years of the judgment of the learned Single Judge. In the meantime, he had participated in the entire selection process and having chosen to do so, it would not be open to him to raise a grievance about the manner in which the list of successful candidates at the preliminary written test was drawn up. 9. The principle which we have deduced above is founded on the rationale that candidates who have participated in the selection process ought not to be permitted to impugn the result on the ground of an alleged irregularity at an anterior stage. If they were to be permitted to do so, results of a public examination would be held in a status of uncertainty. These selections, which are to a public service-in the present case the police service, cannot be allowed to linger in a status of uncertainty and candidates cannot be permitted to raise a ground of challenge at any time or stage at their own will or fancy. In fact, we may note that in the special appeal, the appellant admits that some candidates with whom he was acquainted were selected in the revised final result dated 25 June 2015, though as a matter of fact, those candidates had not secured 40% marks in each of the three parts of the preliminary written test though they had secured 50% marks in the aggregate. If by the appellant's own admission these facts were known to him, then the ground of challenge was available to him much earlier and he ought to have challenged the result at an appropriate stage either by impugning the result itself or by a special appeal against the judgment of the learned Single Judge. The appellant is evidently a candidate who was fully conversant with all the developments which took place in the meantime. 10. The Supreme Court, in a recent judgment dated 11 May 2015 in HC Pradeep Kumar Rai v. Dinesh Kumar Pandey, (Civil Appeal No. 6549 of 2014). has held that such a challenge would not be maintainable. The Supreme Court held as follows: "16. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. Thus, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted. (See Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and Ors. (2011) 1 SCC 150 , and K.H. Siraz Vs. High Court of Kerala and Ors. (2006) 6 SCC 395 ." 11. For these reasons, we are of the view that the objection which has been raised by the learned Standing Counsel appearing on behalf of the State must be sustained and upheld. We are, therefore, unable to grant any relief to the appellant in the special appeal. 12. The special appeal shall, accordingly, stand dismissed. There shall be no order as to costs.