Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 114 (ALL)

Ravi Prakash v. State Of U. P.

2023-01-12

VIVEK CHAUDHARY

body2023
JUDGMENT : Vivek Chaudhary, J. 1. Heard Dr. L.P. Mishra assisted by Sri Naveen Shukla as well as Sri Birendra Pratap Singh and Sri Manish Mishra, learned counsel for the petitioners, Sri Praful Yadav, learned Standing Counsel for the State and Sri Utsav Mishra, learned counsel for the Commission. 2. The petitioners have challenged the physical efficiency test as prescribed by order dated 8.7.2019 for appearing in the physical efficiency test scheduled to be held between 9.9.2019 to 11.9.2019 for the post of Platoon Commander, Home Guards and on 12.9.2019 and 13.9.2019 for the post of Block Organizer, Home Guards at Lucknow. They claim that they may not be subjected to such physical efficiency test. In the alternative, the petitioners have sought a relief of certiorari for quashing Clause 12(2) of the Advertisement No.02-Examination/2016 so far as it prescribes for holding a physical efficiency test for selection to the post of Platoon Commander and Block Organizer in the Home Guards Department. 3. The facts of the case are that in the year 2016, Advertisement No.02-Examination/2016 was issued for combined subordinate services selection by which, large number of vacancies of different departments were advertised. Under the said advertisement, vacancy for the post of Platoon Commander and Block Organizer of the Home Guards Department was also advertised. For the said post, selection process included written and interview tests and further, physical efficiency test as well as physical measurements. The physical measurements were prescribed in the advertisement. 4. Learned counsel for the petitioners submit that appointments on the aforesaid posts are to be made under the U.P. Home Guards Department Subordinate Service Rules, 1982 (for short 'the Rules of 1982') read with U.P. Subordinate Services Selection Commission Act, 2014 (for short 'the Act of 2014') and its Regulations. 5. Challenging the said selection, learned counsel for the petitioners submit that the Rules of 1982 do not provide for a physical efficiency test and the said Rules only provide for physical measurements. It is further submitted that the physical efficiency test could not have been provided in midway of the selection process after the advertisement is made. Learned counsel further submit that even otherwise, physical efficiency test, as provided by the impugned order, is too stringent. It is further submitted that the physical efficiency test could not have been provided in midway of the selection process after the advertisement is made. Learned counsel further submit that even otherwise, physical efficiency test, as provided by the impugned order, is too stringent. Learned counsel for the petitioners have tried to drawn comparison with the physical efficiency test held for the post of Sub Inspector of Police and Police Constable and submit that the physical efficiency test imposed for the Home Guards is much more stringent than that of Sub-Inspector of Police and Police Constables. Thus, the conditions are arbitrarily stringent. 6. Learned counsel for the petitioners further submit that the marks fixed in the physical efficiency test are competitive in nature as the same provide increasing marks for better efficiency. Learned counsel further submit that such marking system cannot be imposed during the process of selection and the same ought to have been provided at the time of advertisement. It is further submitted that at a later stage, only a criteria for clearing the physical efficiency test could be provided and not competitive marking. For the said purpose, learned counsel for the petitioners rely upon the judgment of the Supreme Court in the cases of Ramjit Singh Kardam and others vs. Sanjeev Kumar and others (2020) 20 SCC 209 and K. Manjusree vs. State of Andhra Pradesh and another (2008) 3 SCC 512 . 7. Opposing the contention of learned counsel for the petitioners, Sri Utsav Mishra, learned counsel for the Commission and Sri Praful Yadav, learned Standing Counsel, submit that a bare perusal of Clause 12(2) of the said advertisement shows that physical efficiency test as well as physical measurements was provided in the advertisement. They submit that the said fact is also clear from the alternative relief claimed by the petitioners in which, they are seeking for quashing of Clause 12(2) of the advertisement so far as it prescribes for holding of physical efficiency test. They further submit that since the advertisement is of the year 2016 under which the petitioners duly participated, hence, after a period of three years, they cannot challenge the condition of the advertisement. They further submit that since the advertisement is of the year 2016 under which the petitioners duly participated, hence, after a period of three years, they cannot challenge the condition of the advertisement. Learned counsel for the respondents for the said purposes, rely upon the following judgments: (i) Ramesh Chandra Shah and others vs. Anil Joshi and others (2013) 11 SCC 309 ; (ii) Dhananjay Malik and others vs. State of Uttaranchal and others (2008) 4 SCC 171 ; (iii) Sankar Mondal vs. State of West Bengal and others: Civil Appeal No.1924 of 2010, decided on 15.2.2022; and (iv) Smt. Vijay Laxmi and others vs. Stat of U.P. and others: Writ-A No.2460 of 2022, decided on 29.4.2022. 8. Learned counsel for the respondents further place reliance upon Rule 15 of the Rules of 1982 and claim that the same provides for a physical efficiency test of competitive nature and also provides that the criteria of physical efficiency test may be prescribed from time to time by the Commandant General of Home Guards. The respondents' counsel submit that the Rules of 1982 are strictly followed read with the Act of 2014 and its Regulations and there is no illegality committed in the selection process. 9. I have perused the records of the case with the assistance of learned counsel for the parties and judgments relied upon by them. 10. Clause 12(1) of the Advertisement No.02-Examination/2016 provides that the selection shall be made on the basis of written examination and interview and the manner, syllabus and the date of examination shall be intimated at the relevant time. Clause 12(2) provides that for the post of Platoon Commander and Block Organizer, along with the selection procedure provided in Clause 12(1), physical efficiency test, shall also be included and along with the physical efficiency test, the required physical measurements shall also be conducted as prescribed in the advertisement. 11. Clause 12(2) provides that for the post of Platoon Commander and Block Organizer, along with the selection procedure provided in Clause 12(1), physical efficiency test, shall also be included and along with the physical efficiency test, the required physical measurements shall also be conducted as prescribed in the advertisement. 11. Clauses 12(1) and 12(2) of the said advertisement are quoted hereinbelow: ^^12¼1½& p;u dk vk/kkj& fyf[kr ijh{kk rFkk lk{kkRdkj gSA iz'uxr inksa ij p;u gsrq mRRkj izns'k lewg ^x^ ds inksa ds fy, lh/kh HkrhZ ¼jhfr vkSj izfdz;k½ fu;ekoyh] 2015 vf/klwpuk fnuk¡d 11 ebZ] 2015 esa fofgr izko/kkuksa ds varxZr lh/kh HkrhZ dh izfdz;k] ikB~;dze] fyf[kr ijh{kk@lk{kkRdkj ds vad ogh gksaxs] tks jkT; ljdkj ds vuqeksnu ls vk;ksx }kjk fu/kkZfjr fd, tka,xsA rn~uqlkj fyf[kr ijh{kk gsrq ijh{kk ;kstuk rFkk ikB~;dze ,oa ijh{kk frfFk ds laca/k esa ;Fkk le; lwfpr fd;k tk,xkA ¼2½& oSrfud IykVwu dekaMj de fjiksVZ vf/kdkjh ¼indze la[;k&4½] oSrfud IykVwu dekaMj ¼indze la[;k&5½ rFkk Cykd vkxsZukbtj ¼indze la[;k&6½ ds inksa ij p;u gsrq fcUnq&12¼1½ esa mfYyf[kr p;u izfdz;k ds lkFk&lkFk 'kkjhfjd n{krk ijh{kk Hkh lfEefyr gS] vH;fFkZ;ksa dh vgZrk ds varxZr 'kkjhfjd eki Hkh fu;ekuqlkj gS%& vH;Fkh Å¡pkbZ lhuk fcuk Qqyk;s lhuk Qqyk;s tkus ij iq:"k vU; 167-7 ls0eh0 76-8 ls0eh0 83-8 ls0eh0 iq:"k ioZrh; 162-60 ls0eh0 76-5 ls0eh0 81-5 ls0eh0 iq:"k vuqlwfpr tkfr 160-0 ls0eh0 76-5 ls0eh0 78-8 ls0eh0 efgyk vU; 152-0 ls0eh0 - - efgyk ioZrh; ,oa vuqlwfpr tutkfr 147-0 ls0eh0 - - 12. Thus, the advertisement itself provided that there shall be a physical efficiency test. The said requirement was fully in the knowledge of the petitioners and the same is also reflected from the alternative relief sought, wherein Clause 12(2) of the advertisement is sought to be quashed. 13. The petitioners had applied for the said posts in the year 2016. In case they felt that any of the condition is illegal, the same ought to have been challenged in the year 2016 only. After participating in the selection process, it is not open for the petitioners to challenge the same, that too, at a later stage. The law in this regard is well settled by the Supreme Court in case of Ramesh Chandra Shah (supra), wherein the Supreme Court in Paragraphs 17, 18 and 24 held: "17. After participating in the selection process, it is not open for the petitioners to challenge the same, that too, at a later stage. The law in this regard is well settled by the Supreme Court in case of Ramesh Chandra Shah (supra), wherein the Supreme Court in Paragraphs 17, 18 and 24 held: "17. Those who were desirous of competing for the post of Physiotherapist, which is a Group ‘C’ post in the State of Uttarakhand must have, after reading the advertisement, become aware of the fact that by virtue of the Office Memorandum dated 3-8-2010, the Board has been designated as the recruiting agency and the selection will be made in accordance with the provisions of the General Rules. They appeared in the written test knowing that they will have to pass the examination enumerated in Para 11 of the advertisement. If they had cleared the test, the private respondents would not have raised any objection to the selection procedure or the methodology adopted by the Board. They made a grievance only after they found that their names do not figure in the list of successful candidates. In other words, they took a chance to be selected in the test conducted by the Board on the basis of the advertisement issued in November 2011. This conduct of the private respondents clearly disentitles them from seeking relief under Article 226 of the Constitution. To put it differently, by having appeared in the written test and taken a chance to be declared successful, the private respondents will be deemed to have waived their right to challenge the advertisement and the procedure of selection. 18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome. ........... 24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents." 14. Therefore, the present writ petitions are not maintainable to the extent, the challenge to Clause 12(2) of the advertisement prescribing holding of a physical efficiency test is concerned. Even otherwise, the physical efficiency test is also prescribed by Rule 15 of the Rules of 1982. The Note to Rule 15(2) provides that course and procedure of the competitive examination shall be such as is prescribed by the Commandant General, Home Guards. Rule 15(3) provides that the Selection Committee shall take written and physical efficiency test of the candidates and on the basis of marks obtained in the same, call the appropriate number of candidates for interview. The marks obtained by a candidate in interview shall be added in the marks obtained in the written and physical competitive test of the candidates. 15. Thus, the Rules of 1982 themselves provide that there shall be a written as well as physical competitive test and also an interview. The result of the selection shall be declared on the basis of combined marks obtained in the said three examinations. Therefore, no illegality is found in holding the physical efficiency test. The criteria of the physical efficiency test is to be prescribed and is duly prescribed by the Chairman of the Selection Committee and thus, there is no illegality in the same. Therefore, no illegality is found in holding the physical efficiency test. The criteria of the physical efficiency test is to be prescribed and is duly prescribed by the Chairman of the Selection Committee and thus, there is no illegality in the same. So far as the criteria fixed in the physical efficiency test is concerned, the same is as follows: ^^iq:"k vH;fFkZ;ksa ds fy;s %& 1& fdzdsV xsan Qsaduk de ls de 55 ehVj 2& yEch dwn de ls de 13 QhV 3& che ¼fpuhax vi½ de ls de 05 ckj 4& nkSM+ ¼1500 ehVj½ vf/kdre 06 feuV esa mijksDr 'kkjhfjd n{krk ijh{kkvksa esa vH;fFkZ;ksa dks fuEukuqlkj vad iznku fd;s tk;sxsa %& ¼1½ fdzdsV xsan Qsaduk vf/kdre 10 vad 55 ehVj 5 vad 60 ehVj 6 vad 65 ehVj 7 vad 70 ehVj 8 vad 75 ehVj 9 vad 80 ehVj 10 vad ¼2½ yEch dwn vf/kdre 10 vad 13 QhV 5 vad 14 QhV 6 vad 15 QhV 7 vad 16 QhV 8 vad 17 QhV 9 vad 18 QhV ,oa mlls vf/kd 10 vad ¼3½ che ¼fofuax vij½ vf/kdre 10 vad 5 ckj 5 vad 6 ckj 6 vad 7 ckj 7 vad 8 ckj 8 vad 9 ckj 9 vad 10 ckj 10 vad 4½ nkSM& 1500 ehVj vf/kdre 10 vad 5 feuV rd 10 vad 5 feuV 01 lsds.M ls 5 feuV 15 lsds.M rd 9 vad 5 feuV 16 lsds.M ls 5 feuV 30 lsds.M rd 7 vad 5 feuV 31 lsds.M ls 5 feuV 45 lsds.M rd 6 vad 5 feuV 45 lsds.M ls 6 feuV rd 5 vad efgyk vH;fFkZ;ksa ds fy;s %& efgyk vH;fFkZ;ksa dh 'kkjhfjd n{krk ijh{kkvksa esa fuEukuqlkj vad iznku fd;s tk;sxsa %& 1& yEch dwn de ls de 9 QhV 2& fdzdsV xsan Qsaduk de ls de 25 ehVj 3& fLdfiax ¼jLlh dwnuk½ de ls de 55 ckj 4& nkSM+ 800 ehVj vf/kdre 4 feuV 30 lsds.M ¼1½ yEch dwn vf/kdre 10 vad 9 QhV ij 5 vad 10 QhV ij 6 vad 11 QhV ij 7 vad 12 QhV ij 8 vad 13 QhV ij 9 vad 14 QhV ij 10 vad ¼2½ fdzdsV xsan Qsaduk&vf/kdre 10 vad 25 ehVj 5 vad 27 ehVj 6 vad 29 ehVj 7 vad 31 ehVj 8 vad 33 ehVj 9 vad 35 ehVj 10 vad ¼3½ fLdfiax ¼jLlh dwnuk½&vf/kre 10 vad 55 ckj ,d feuV esa 5 vad 60 ckj ,d feuV esa 6 vad 65 ckj ,d feuV esa 7 vad 70 ckj ,d feuV esa 8 vad 75 ckj ,d feuV esa 9 vad 80 ckj ,d feuV esa 10 vad ¼4½ nkSM& 800 ehVj vf/kdre 10 vad 3 feuV 30 lsds.M rd rd 10 vad 3 feuV 31 lsds.M ls 3 feuV 45 lsds.M rd 9 vad 3 feuV 46 lsds.M ls 4 feuV rd 7 vad 4 feuV 1 lsds.M ls 4 feuV 15 lsds.M rd 6 vad 4 feuV 16 lsds.M ls 4 feuV 30 lsds.M rd 5 vad 16. For better efficiency on the said criteria, like if a cricket ball is thrown to 55 meters, a candidate is awarded 5 marks and if it is thrown to 60 meters, a candidate is awarded 6 marks, so at every five meters, a candidate gets one extra marks. Similarly, in Long Jump, Beem (Chinning up), running etc., better efficiency entitles a candidate to obtain extra marks as per the efficiency criteria. 17. Submission of learned counsel for the petitioners that such competitive efficiency marks could not have been provided for the physical efficiency test, is contrary to the Rules of 1982 as Rule 15 of the said Rules itself provides that there shall be a competitive physical examination. Rule 15 reads as under: ^^15& ¼1½ lh/kh HkrhZ ds iz;kstukFkZ p;u lfefr;ksa dk xBu fd;k tk;sxk ftlesa fuEufyf[kr gksxsa %& ¼d½ IykVwu dek.Mj vkSj Cykd vkxZukbtj ds in ds fy;s %& ¼,d½ fMIVh dek.Ms.V tujy gksexkMZlA ¼nks½ T;s"B LVkQ vf/kdkjh] gksexkMZ~lA ¼rhu½ dek.Ms.V] dsUnzh; izf'k{k.k laLFkku] gksexkMZ~lA ¼[k½ goynkj bULVªDVj ds in ds fy;s %& ¼,d½ fMIVh dek.Ms.V tujy gksexkMZlA ¼nks½ dek.Ms.V] dsUnzh; izf'k{k.k laLFkku] gksexkMZ~lA ¼rhu½ ,d fMfotuy dekUMs.V gksexkMZl ¼ftls dek.Ms.V tujy }kjk uke fufnZ"V fd;k tk;sxkA½ ¼2½ p;u lfefr vkosnu i=ksa dh laoh{kk djsxh vkSj ik= vH;fFkZ;ksa esa izfr;ksfxrk ijh{kk esa mifLFkr gksus dh vis{kk djsxhA fVIi.kh %& izfr;ksfxrk ijh{kk dk ikB~;dze vkSj mldh izfdz;k ,slh gksxh tSlh dek.Ms.V tujy] gksexkMZ~l }kjk le;≤ ij fofgr dh tk;A ¼3½ p;u lfefr] vH;fFkZ;ksa }kjk fyf[kr vkSj 'kkjhfjd ijh{kk esa izkIr vadks dh lkj.khc) fd;s tkus ds i'pkr~ fu;e 6 ds vuqlkj vuqlwfpr tkfr;ksa] vuqlwfpr tu&tkfrksa vkSj vU; Jsf.k;ksa ds vH;fFkZ;ksa dk lE;d izfrfuf/kRo lqfuf'pr djus dh vko';drk dks /;ku esa j[krs gq,] mrus vH;fFkZ;ksa dks lk{kkRdkj ds fy;s cqyk;sxh ftrus ijh{kkvksa ds ifj.kke ds vk/kkj ij bl lEcU/k esa lfefr }kjk fu/kkZfjr Lrj rd igqap lds gksaA lk{kkRdkj esa izR;sd vH;FkhZ dks fn;s x;s vad ijh{kkvksa esa mldks izkIr vadks esa tksM+ fn;s tk;sxsaA ¼4½ p;u lfefr vH;fFkZ;ksa dh] ;ksX;rk dze esa] tSlk fd ijh{kkvksa vkSj lk{kkRdkj esa mudks izkIr vadks ds dqy ;ksx ls izdV gks] ,d lwph rS;kj djsxhA ;fn nks ;k vf/kd vH;FkhZ cjkcj&cjkcj vad izkIr djsa rks fyf[kr ijh{kk esa vf/kd vad ikus okys dk uke Åij j[kk tk;sxkA lwph esa ukeksa dh la[;k fjfDr;ksa dh la[;k esa vf/kd ¼fdUrq 25 izfr'kr ls T;knk vf/kd ugh½ gksxhA^^ 18. Comparing the same with the physical efficiency test of Sub Inspector and Constable is concerned, the Rules of Sub Inspector and Constable provide that a candidate for the post of Sub Inspector is required to run 4.8 kilometers in 28 minutes and a candidate for the post of Constable is required to run 2.4 kilometers in 16 minutes. 19. For the post of Platoon Commander and Block Organizer, a candidate is only required to run 1500 meters in 5 minutes. The time provided for the physical efficiency test is not stringent vis-a-vis that of the Sub Inspector or Constable, but on the contrary, is much lenient as they are only required to run 1.5 kilometers vis-a-vis 4.8 and 2.4 of the Sub Inspector and Constable respectively. The other requirements i.e. Long Jump, throwing of cricket ball, Beem (chinning up) or skipping and running for the women are also not stringent, but are reasonable for any physically fit person and looking into the nature of job to be performed by the selected candidate. 20. There is another aspect of the matter also. This Court by order dated 6.9.2019, as an interim measure, provided that the petitioners may appear in the physical efficiency test scheduled to be held in the month of September, 2019, without prejudice to their rights in these writ petitions. 21. Despite the aforesaid order, the petitioners did not appear in the physical efficiency test, instead they filed an application that at present they are not in a condition to appear in the physical efficiency test. The respondents twice adjourned the said test, but again on each and every time, on the ground of Covid and on other grounds, the petitioners refused to appear in the said test. 22. This Court neither permitted the petitioners to apply for extension of time to appear in the physical efficiency test nor permitted to respondents to extend the time of the said test. The Court only directed that the petitioners may appear in the physical efficiency test to be conducted in September, 2019. The petitioners opted not to appear. This in itself is sufficient for this Court to refuse relief to the petitioners as they did not appear in the physical efficiency test, which was subject to the decision of the writ petition. The Court only directed that the petitioners may appear in the physical efficiency test to be conducted in September, 2019. The petitioners opted not to appear. This in itself is sufficient for this Court to refuse relief to the petitioners as they did not appear in the physical efficiency test, which was subject to the decision of the writ petition. Once it is found that physical efficiency test is necessary and petitioners have not appeared in the same, their claim is liable to be rejected. 23. Considering the aforesaid facts and circumstances of the case, this Court does not find any force in the submissions of learned counsel for the petitioners. 24. The writ petitions have no force and are dismissed.