Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 644 (JK)

Yoga Singh v. State of J&K

2018-08-20

SANJEEV KUMAR

body2018
JUDGMENT : The petitioners claim that they along with the private respondents applied for the post of Constables in Indian Reserve Police 11and 12 Battalions in response to an Advertisement Notice issued by respondent No.2 vide his No. DIP/K-2262 dated 27.06.2006. As per the said Advertisement Notification, as many as 2000 posts of Constables in the twin Battalions were to be filled up. The educational qualification prescribed was at least matriculation from any recognized institution, the age not less than 18 years and not above 28 years. So far as physical standards of male candidates were concerned, the same were indicated in the said advertisement notification in the following manner: Height 5’-6” & above. Chest 32” Expanded 33 ½ 2. During the pendency of the aforesaid selection process, the official respondents decided to fill up 2000 posts of Constables in IRP 13th and 14th Battalions as well. Consequently, applications were invited by issuing another advertisement notice dated 26August 2006. The other terms and conditions of the advertisement notification including the criteria of age and physical standards remained the same. It is stated that in view of the allegation of large scale bungling and irregularities, respondent No.4, the then Chairman of the Police Recruitment Board was suspended by the Government pending enquiry into such allegations of irregularities in conducting the physical endurance test. The Government even went to the extent of declaring the physical endurance test conducted under the supervision of respondent No.4 as null and void. It is contended that there was some intervention by this Court in SWP No. 216/2007 titled “Anil Kumar and ors vs State and ors which was decided by this Court on 20.02.2008 holding that except 49 candidates, no irregularity had come to be detected out of total 33,000 candidates who had participated in the selection process and that the respondents were not justified in declaring the whole of the physical endurance test as null and void. This Court vide order dated 20.02.2008 aforesaid quashed the order cancelling the physical endurance test partially and directed the newly constituted Selection Board to proceed with the selection process from the stage the earlier Selection Board had left. The Court further clarified that only such candidates in respect of whom the irregularities had been detected would be put to fresh endurance test. The Court further clarified that only such candidates in respect of whom the irregularities had been detected would be put to fresh endurance test. Be that as it may, the selection process was concluded and the select list impugned in this petition was issued by respondent No.2. 3. The petitioners have been excluded from the selection and are, therefore, before this Court in this writ petition. The impugned selection has been challenged by the petitioners, primarily on the following grounds: i. That the impugned selection is unconstitutional as the same has been made by restricting the zone of consideration only to the candidates belonging to a particular District. In short, it is contended that the District-wise recruitment is violative of Articles 14 and 16 of the Constitution of India as the candidates cannot be discriminated on the basis of their place of birth. ii. That the respondents through their advertisement notification had professed that the selection would be made on District wise basis but while drawing the select list, zone of consideration was further squeezed and the select list was prepared on Tehsil-wise basis. The select list prepared on Tehsil-wise basis, therefore, besides being unconstitutional, is contrary to the terms and conditions of the advertisement notice. iii. That in view of the factual antecedents leading to the detection of bungling and irregularities in the physical endurance test conduced by respondent No.4 and his subsequent suspension and finally the intervention of the Court, the physical endurance test conducted under the supervision of respondent No.4 has come under serious cloud. The petitioners claim that during the selection process/physical endurance test etc., their height was measured as under: Petitioner No.1 5’-7 ½” Petitioner No.2 5’-9 ½” Petitioner No.3 5’-6 ¾” Whereas the fact remains that the height of petitioner No.1 is 5’-11”, petitioner No.2 is 6’-0” and petitioner No.3 is 5’-9”. It is because of the wrong measurement of height of the petitioners, they were deprived of requisite points and were, thus, ousted from the zone of consideration. It may be noted that petitioner No.1 secured 24 points, petitioner No.2 secured 22 points and petitioner No.3 also secured 22 points in the selection process, whereas the merit points of the candidate last selected are 25. This is the sum and substance of the grievance projected by the petitioners in this petition. 5. It may be noted that petitioner No.1 secured 24 points, petitioner No.2 secured 22 points and petitioner No.3 also secured 22 points in the selection process, whereas the merit points of the candidate last selected are 25. This is the sum and substance of the grievance projected by the petitioners in this petition. 5. The official respondents have filed their objections to the amended petition taking inter alia a stand that the petitioners after having participated in the selection process are estopped under law to call in question the District-wise selection notified in terms of the two advertisement notifications aforesaid issued by respondent No.2. It is submitted that the petitioners were well aware of the terms and conditions of the advertisement notifications and yet participated in the selection process with their eyes wide open without any protest or demur. That being so, the petitioners are estopped in law to challenge the result of the selection only because the same is not palatable to the petitioners. Regarding the selection made by the official respondents on Tehsilwise basis, it is contended that though the selection was initially envisaged to be made at District level, but with a view to give proper representation to the people of the remote areas, a decision was taken to make the selection at Tehsil level. Accordingly, separate merit was drawn for each Tehsil. It is urged that since the cut off merit in Tehsil R.S.Pura was 25 and the petitioners secured lesser merit, as such, they could not be selected. 6. Regarding the specific averment made by the petitioners with regard to their wrong measurement of height, the official respondents in their reply affidavit, without joining issue, have stated that in case the petitioners doubt the process of measurement of their height, they can be subjected to fresh measurement, if so desired by the Court. 6. Regarding the specific averment made by the petitioners with regard to their wrong measurement of height, the official respondents in their reply affidavit, without joining issue, have stated that in case the petitioners doubt the process of measurement of their height, they can be subjected to fresh measurement, if so desired by the Court. As a matter of fact, the allegations made by the petitioners that their height was not properly measured have not been specifically refuted by the official respondents and the matter has been left to the discretion of the Court to pass appropriate orders of their fresh measurement 7 Having heard learned counsel for the parties and perused the record, I am of the opinion that the petitioners, who have voluntarily participated in the selection process without any protest or demur cannot, be permitted to challenge the terms and conditions of the advertisement notice and the selection made in accordance therewith only for the reason that the result of the selection is not palatable to the petitioners. The petitioners are estopped by their conduct to assail the validity of the terms and conditions of the advertisement notification and the selection process made in accordance therewith (see Madan Lal and ors vs State of Jammu and Kashmir and ors, 1995 (3) SCC 486 : Manish Kumar Shahi vs State of Bihar, 2010 (12) SCC 576 ). There is, however, substance in the submission made by learned counsel for the petitioners that contrary to the stipulations in the advertisement notification, the official respondents could not have resorted to the selection to be made on Tehsil level. It is contended by the learned counsel for the petitioners that in other Tehsils, the candidates with lesser merit than the petitioners have been selected and had the official respondents drawn a common list, the petitioners would have surely made it to the select list. The submission made by the learned counsel for the petitioner even though is in consonance with law, but the same cannot be accepted in the facts situation of this case. 8. Admittedly, the candidates particularly those with lesser merit and selected in other Tehsils have not been arrayed as party respondents. It would, therefore, be not in consonance with law to quash their appointments without even affording them an opportunity of being heard. 9. 8. Admittedly, the candidates particularly those with lesser merit and selected in other Tehsils have not been arrayed as party respondents. It would, therefore, be not in consonance with law to quash their appointments without even affording them an opportunity of being heard. 9. When confronted with the aforesaid position, learned counsel for the petitioners fairly conceded that the selection of the candidates from other Tehsils having lesser merit than the petitioner cannot be cancelled unless they are arrayed as party respondents in this petition and are heard before passing any adverse order against them. On this score also, the argument of learned counsel for the petitioners fails. This brings me to the last contention raised by the petitioners that there had been a serious irregularity in measuring the height of the petitioners. 10. The petitioners in paragraph 14 of their writ petition have specifically claimed that their height is 5’-11”, 6’-0” and 5’-9” respectively, whereas the respondents have measured the same as 5’-7 ½”, 5’-9 ½” and 5’-6 ¾” respectively. Ordinarily, the decision of the recruitment board consisting of police officers in the matter of measurement of height is not liable to be interfered with by the Courts as the Courts are not expert in such matters. It is always advisable to leave such type of matters to the domain of the experts, but keeping in view of the context in which such type of allegations have arisen, the Court cannot shut its eyes, more so, when the contextual antecedents give rise to scope for doubting the manner in which the measurement of height of the candidates including the petitioners might have been taken. 11 It has come on record that several complaints of bungling and irregularities in the matter of physical endurance test were received by the Government against respondent No.4 who was the then Chairman of the Recruitment Board. The Government found, prima facie, substance in the said allegations and placed respondent No.4 under suspension. The physical endurance test conducted by respondent No.4 was also declared as null and void. The candidates, who had cleared the endurance test, approached this Court in SWP No.216/2010 which was decided by this Court vide its order dated 20.02.2008. The Government found, prima facie, substance in the said allegations and placed respondent No.4 under suspension. The physical endurance test conducted by respondent No.4 was also declared as null and void. The candidates, who had cleared the endurance test, approached this Court in SWP No.216/2010 which was decided by this Court vide its order dated 20.02.2008. The Order declaring the physical endurance test conducted by respondent No.4 as null and void was partially set side by this Court, but, nonetheless, the Court found that there were irregularities in regard to measurement of 49 candidates. The Court instead of permitting the Government to set at naught the whole physical endurance test, directed the Government to sift the grain from the chaff and proceed ahead with the selection process. When the allegations levelled by the petitioners in paragraph 13 and 14 of the petitions are viewed in the context of aforesaid controversial background of endurance test, the same cannot be said to be without any substance. The respondents in their reply to paragraphs 13 and 14 of the petition have also not seriously refuted these allegations. The respondents very fairly in reply to paragraph 14 of the writ petition have stated in the following manner: “That the contents of para 14 of the petition are contrary to the record maintained by the answering respondents. In case, if the this writ petition by providing that the petitioners shall be subjected to fresh measurement by the official respondents which shall be conducted by the Standing Medical Board of the Government Medical College and Hospital Jammu. The Standing Medical Board of GMC Jammu shall also associate an Officer to be nominated by respondent No.2 in the process of measurement of the height of the petitioners. Respondent No.2 shall refer the matter to Principal, Government Medical College Jammu for constitution of Medical Board for taking the measurement of the petitioners. If, upon fresh measurement to be taken by the Board in the manner aforesaid, it is found that the height of the petitioners is more than what was measured during the Physical Endurance Test and they are found entitled to additional points, their merit shall be redetermined. Needless to say that if, upon redetermination of their merit, the petitioners come within the zone of selection, they shall be appointed as Constables against the available posts, if any, with the official respondents. Needless to say that if, upon redetermination of their merit, the petitioners come within the zone of selection, they shall be appointed as Constables against the available posts, if any, with the official respondents. In case, no post is available with the official respondents, the last three candidates in the select list impugned in this petition shall be ousted to accommodate the petitioners and in that eventuality, the selection and appointment of last three candidates in the select list i.e respondent Nos. 35 to 37 shall be deemed to have been quashed. Let respondent No.2 place the case of the petitioners for measurement of their height before Principal GMC Jammu within two weeks from the date of receipt of certified copy of this Judgment and also nominate the officer to be associated in the Medical Board for taking measurement of the petitioners. The Principal GMC Jammu will immediately constitute a Medical Board within two weeks thereafter. The Medical Board in association with the Officer to be nominated by respondent No.2 shall conduct the proceedings and submit its report within one week thereafter. The follow up order that may be required in terms of the observations made above shall be passed by respondent No.2 within four weeks thereafter. 14. With these observations, the petition is disposed of along with connected MP, if any.