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2017 DIGILAW 824 (ALL)

RENU SINGH v. STATE OF U. P.

2017-03-23

DEVENDRA KUMAR ARORA

body2017
JUDGMENT Hon’ble Dr. Devendra Kumar Arora, J.—Heard Mr. Ran Vijay Singh, learned Counsel for the petitioner and Mr. Badrul Hasan, learned Additional Chief Standing Counsel for the State. 2. The trivial question involved in this writ petition is to the effect that whether it would be justified to interfere with the examination at the behest of a candidate who had appeared in the examination without any protest and was declared unsuccessful. 3. In the instant writ petition, petitioner-Renu Singh has challenged the order dated 2.7.2010 passed by the opposite party No. 2-Secretary, U.P. Police Recruitment & Promotion Board, Lucknow (hereinafter referred to as “Board”), whereby she has been declared unsuccessful in the U.P. Police Constable Recruitment Examination, 2009 on the ground that after reevaluation of the answer-sheet, she had obtained only 112.81 marks and had failed to obtain eligible marks in every part of the question papers. During the pendency of the present writ petition, the petitioner has filed an amendment application (C.M. Application No. 15697 of 2012), which was allowed vide order dated 30.4.2012. By means of the amendment, the petitioner has assailed the eligibility clause of advertisement dated 25.6.2009, whereby the eligibility marks in every subject has been fixed as 33%. 4. Shorn off unnecessary details, the facts of the case are as under : Pursuant to the advertisement published in the year 2009 for selection of Constable in U.P. Civil Police, the petitioner applied in General Category. She appeared in the examination with Roll No. 24050326. The Board published the final result of the examination on its website, whereupon the petitioner came to know that she has obtained 112.8069 marks out of 200 marks and has been declared as not qualified. 5. According to the petitioner, due to the fault of the Board, she had failed to solve all the question paper because more than 20 questions were found incorrect in question paper. As a consequence thereof, the petitioner was confused and more time was consumed in solving the wrong question. However, after declaration of the result, the Board invited objections from the candidate(s). In pursuance thereof, the petitioner filed her objections before the Board but as no heed was paid, she had approached this Court through writ petition No. 3615 of 2010 (SS) : Renu Singh v. State of U.P. and others. However, after declaration of the result, the Board invited objections from the candidate(s). In pursuance thereof, the petitioner filed her objections before the Board but as no heed was paid, she had approached this Court through writ petition No. 3615 of 2010 (SS) : Renu Singh v. State of U.P. and others. This Court, vide order dated 28.5.2010, disposed of the writ petition with a direction to the Board to consider and decide the representation/objection of the petitioner dated 20.5.2010 by a speaking and reasoned order. 6. In compliance of the aforesaid order dated 28.5.2010, the Board has considered the representation/objection dated 20.5.2010 preferred by the petitioner and vide order dated 2.7.2010, the petitioner was informed that after revaluation of the answer-sheet, though she had obtained 112.81 marks but she had failed to obtain eligible marks in every part of the question papers, therefore, she is not qualified for U.P. Police Constable Recruitment Examination, 2009. Feeling aggrieved, the petitioner has filed the present writ petition, challenging the order dated 2.7.2010. 7. As averred above, during the pendency of the present writ petition, through amendment, the petitioner has challenged the clause of advertisement dated 25.6.2009, which prescribed that the eligibility marks in every subject shall be 33 percent. 8. Submission of the learned Counsel for the petitioner Mr. Ran Vijay Singh is that the petitioner had obtained 112.80 marks which is higher than cut of merit marks in General Woman Category as last cut of merit in General Woman Category was 95 marks. Therefore, the Board had wrongly decided the objection of the petitioner by saying that the petitioner had failed to obtain eligible marks i.e. 33% in every part of the question paper. 9. Further submission of the learned Counsel for the petitioner is that U.P. Civil Police Constable and Head Constable Rules, 2008 [in short referred to as the “Constable Rules,2008”] and U.P. Sub-Inspector and Inspector (Civil Police) Rules, 2008 were notified in U.P. Gazette on 2.12.2008. 9. Further submission of the learned Counsel for the petitioner is that U.P. Civil Police Constable and Head Constable Rules, 2008 [in short referred to as the “Constable Rules,2008”] and U.P. Sub-Inspector and Inspector (Civil Police) Rules, 2008 were notified in U.P. Gazette on 2.12.2008. The rule making authority was well aware about the requirements of minimum qualifying marks in every subject in the written examination and was also well aware about importance of post in question for fixing cut of marks, hence, rule making authority has not inserted criteria for requirement of minimum qualifying marks in Rule 15 (f) of Constable Rules, 2008 but has inserted the clause relating to criteria for requirement of minimum qualifying marks in Rule 15 (f) of Constable Rules, 2008. 10. Counsel for the petitioner has submitted that Rule-15 (a) (ii) of Constable Rules, 2008 is in respect of application form which is to be provided by the Board with attaching the book-let containing the information regarding minimum qualification provided in the Rule. The provisions of Rule 15 (a) (ii) Constable Rules, 2008 does not provide the requirement of minimum qualifying marks of 33% in every subject in written examination. Therefore, the said Rule 15 (a) (ii) is applicable after the advertisement of the post in question. He has submitted that Rule 15 (a) (ii) does not give any power to the Board for framing guideline and instruction in respect of the eligibility/qualification criteria for the post of Constable in U.P. Civil Police. His submission is that the guideline mentioned in the book-let in respect of the eligibility/qualification criteria cannot be allowed without framing such provision in Rule in view of dictum of the Apex Court in Himani Malhtora v. High Court of Delhi (Writ Petition (Civil) No. 490 of 2007, decided on 3.4.2008). 11. Elaborating his submission, Counsel for the petitioner has submitted that the requirement of securing 33% marks in every subject in the examination for the post of Constable is not provided in 15 (a) (ii) whereas the requirement of minimum marks for promotion to the post of Head Constable has been specifically mentioned in the said Rule. Thus, the declaration of the petitioner as not qualified for selection on the post of Constable in U.P. Civil Police is illegal. Therefore, the aforesaid impugned order and impugned clause of advertisement dated 25.6.2009 is liable to be quashed. 12. Thus, the declaration of the petitioner as not qualified for selection on the post of Constable in U.P. Civil Police is illegal. Therefore, the aforesaid impugned order and impugned clause of advertisement dated 25.6.2009 is liable to be quashed. 12. In contrast, learned Additional Chief Standing Counsel Mr. Badrul Hasan has submitted that the State Government, vide Notification dated 2.12.2008, has promulgated rules for making selection and promotion of Police Constable and Head Constable, namely, U.P. Civil Police Constable and Head Constable Rules, 2008. He has also pointed out that the said Constable Rules,2008 were amended vide notification dated 20.5.2009. The procedure for requirement of Police Constable has been prescribed in Rule 15 of Constable Rules,2008. The State Government, by means of Rule 15 (a) (ii), authorizes the Board for framing guidelines and instructions. In these backgrounds, the department has framed guidelines for conducting examination of Police Constable and the same was issued by the Additional Secretary, Uttar Pradesh, Police Recruitment Board, Lucknow on 25.6.2009. 13. Learned Additional Chief Standing Counsel has pointed out that in the aforesaid guidelines at page No. 5 para 4 of the tabular chart, it is clearly mentioned that in written examination, every candidate is required to secure/possess 33% marks in each subject and in all 35% marks. He has submitted that pursuant to the advertisement, the petitioner had applied and has participated in the written examination as well as in the physical test. In the written examination part-I, she got 32.5% marks; in part II, 8.3333 marks, in part III 32.5% marks; and in part IV 39.4736. Thus, she secured 112.8069 marks in total. It has been Clarified that in part-II (numerical and mental ability test), the petitioner could not secured/obtained 33% minimum qualifying marks, therefore, she was not declared as a successful candidate. 14. While placing reliance upon Union of India and others v. S.Vinod Kumar and others, 2007 (8) SCC 100 , learned Additional Chief Standing Counsel has submitted that since the petitioner had participated in the selection process knowing fully well the procedure laid down in the advertisement, therefore, she is not entitled to question the recruitment process on being declared unsuccessful. Thus, the petitioner has rightly been declared not qualified as she did not secure 33% marks in Part-II paper, which is mandatory in view of the guidelines of the Board. 15. To strengthen his arguments, Mr. Thus, the petitioner has rightly been declared not qualified as she did not secure 33% marks in Part-II paper, which is mandatory in view of the guidelines of the Board. 15. To strengthen his arguments, Mr. Badrul Hasan, learned Additional Chief Standing Counsel has also placed reliance upon Manish Kumar Shahi v. State of Bihar and others, 2010 (12) SCC 576 , Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and others, 2011 (1) SCC 150 , Arunachal Pradesh Public Service Commission and another v. Tage Habung and others, 2013 (7) SCC 737 and Ranjan Kumar and others v. State of Bihar and others, 2014 (16) SCC 187 . 16. From the facts narrated above, it clearly emanates that there is no dispute to the fact that the petitioner had appeared in the examination but was declared as not qualified as she failed to get qualifying marks in every part of the question paper. 17. The petitioner has filed the instant writ petition after declaration of result and had participated in the selection process without any protest with regard to fixing of qualifying marks in each part of the question paper. It may be observed that surely, if the petitioner’s name had appeared in the merit list, she would not have even dreamed of challenging the selection. The petitioner invoked the jurisdiction of the High Court under Article 226 of the Constitution of India only after she found that her name does not figure in the merit list prepared by the respondents. 18. It may be noted that since the petitioner took a chance by appearing in the examination, therefore, in view of the settled legal proposition of law as laid down by the Hon’ble Apex Court in Dhananjay Malik and others v. State of Uttaranchal and others, 2008 (4) SCC 171 , Manish Kumar Shahi v. State of Bihar and others, (2010) 12 SCC 576 and K.A. Nagamani v. Indian Airlines and others, (2009) 5 SCC 515 , the petitioner cannot challenge the declaration of the result on being declared unsuccessful in the examination. 19. In Dhananjay Malik’s case (Supra), the Hon’ble Apex Court observed in paragraph-9 of the report as under : “In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with Rules. 19. In Dhananjay Malik’s case (Supra), the Hon’ble Apex Court observed in paragraph-9 of the report as under : “In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with Rules. If they think that the advertisement and selection process were not in accordance with Rules, they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.” 20. The Apex Court in the case of Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and others, (2011) 1 SCC 150 , the Apex Court has considered the judgment rendered in Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 , which has been relied upon by the petitioner. The Court in paragraph 23 and 24 observed as under : “In our considered opinion, the reliance on the aforesaid judgments by the counsel appearing for the appellant was misplaced as in the present case the requirement and the necessity for having basic knowledge of computer operation as one of the eligibility criteria and conditions for selection is prescribed in Rule 8 itself. The said clause was also specifically mentioned in the advertisement issued making it clear to all the intending candidates that they must have basic knowledge of computer operation. 25. When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office Operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office Operation. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office Operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.” 21. In all the other cases, which have been relied by the Counsel for the respondents, the Apex Court has succinctly held that if the candidates had appeared at the examination without any demur and did not question the validity, such candidates are estopped and precluded from questioning the selection process. In view of the settled legal position, the case laws relied upon by the petitioner are of no help. 22. It is also to be considered that Part V of Constable Rules 2008 deals with the procedure for recruitment. Rule 15(a) deals with the direct recruitment to the post of Constable and reads as under : “15. The direct recruitment to the post of constable shall be made in the following manner : (a) Application : (i) A candidate shall fill the application Form for one District only. Regarding allocation of Examination centre, the candidate may give more than one option. However, Board may allocate centre other than those indicated by the candidate. (ii) a separate booklet shall be attached with the application Form containing the information regarding educational qualification, age, and minimum qualifying standard for each category of Physical Standard Test, Physical Efficiency Test, Medical fitness, and minimum qualifying marks for written examination subject wise, copy of O.M.R. sheet for practice, and other important guidelines. (iii) the application Form shall be on the O.M.R. sheet with carbon copy: ....” 23. It is relevant to point out that the Constable Rules 2008 were amended by the State Government in exercise of powers conferred under clause (c),sub-section(2) of Section 46 read with sub section of the said section and section 2 of the Police Act, 1861. (iii) the application Form shall be on the O.M.R. sheet with carbon copy: ....” 23. It is relevant to point out that the Constable Rules 2008 were amended by the State Government in exercise of powers conferred under clause (c),sub-section(2) of Section 46 read with sub section of the said section and section 2 of the Police Act, 1861. The relevant amended Rule 15(a)(i) and (ii) reads as under : “15.(a) Application : (i) A candidate shall fill the application Form for one District only. Regarding allocation of Examination centre, the candidate may give more than one option. However, Board may allocate centre other than those indicated by the candidate. (ii) A separate booklet shall be attached with the application Form containing the information regarding educational qualification, age, and minimum qualifying standard for each category of Physical Standard Test, Physical Efficiency Test, Medical fitness, and minimum qualifying marks for written examination subject wise, copy of O.M.R. sheet for practice, and other important guidelines. (iii) the application Form shall be on the O.M.R. sheet. .............” The aforesaid provisions of law have strictly been followed by the respondents while initiating the selection process and so far as Constables Bandana Pandey, Sneh Bala Mishra, Sapana Srivastava and Prema Singh are concerned, they were selected on the basis of their performance under the 2009 direct recruitment. Thus, the aforesaid procedure for testing the knowledge cannot be said to be unreasonable or that it was arbitrary. 24. As regard the incorrect questions, it has been pointed out that four questions of part-II and two question of the part-IV of the question papers were deleted and after deletion of said questions, the marks per questions had been enhanced. Accordingly, the valuation has been made on the basis of enhanced marks in accordance with the law as laid down in Pawan Kumar Agrahari v. U.P.Public Service Commission [Writ Petition No. 2669(MB) of 2009. 25. Therefore, after giving very thoughtful consideration to the issues, I am of the opinion that the petitioner has failed to make out any case for interference with the impugned order. The the writ petition lacks merit and is hereby dismissed. Parties to bear their own costs.