Amlan Jyoti Borooah Vs. State of Assam & Ors.
EmailAppeal: Civil Appeal No. 387 of 2009
[Arising out of SLP (C) No.10726 of 2006]
[From the Judgment and Order dated 5.5.2006 of the Gauhati High Court in W.A. No. 54 of 2004]
[Arising out of SLP (C) No.10726 of 2006]
[From the Judgment and Order dated 5.5.2006 of the Gauhati High Court in W.A. No. 54 of 2004]
Petitioner: Amlan Jyoti Borooah
Respondent: State of Assam & Ors.
Apeal: Civil Appeal No. 387 of 2009
[Arising out of SLP (C) No.10726 of 2006]
[From the Judgment and Order dated 5.5.2006 of the Gauhati High Court in W.A. No. 54 of 2004]
[Arising out of SLP (C) No.10726 of 2006]
[From the Judgment and Order dated 5.5.2006 of the Gauhati High Court in W.A. No. 54 of 2004]
Judges: S.B. Sinha & V.S. Sirpurkar, JJ.
Date of Judgment: Jan 23, 2009
Appearances:
Mr. Amrit Phukan, Advocate General, Mr. Raju Ramachandran, Mr. P.K. Goswami, Senior Advocates., Mr. Arun K. Sinha, Mr. Rakesh Singh, Mr. Sunit Sinha, Mr. Riku Sharma, Mr. Ranjan Majumdar (for M/s. Corporate Law Group)
Mr. Rajiv Mehta, Mr. Parthiv Goswami, Mr. Ahanthom Henry, Mr. Manish Goswami (for M/s. Map & Co.), Mr. M. Bhuyan, Mr. Raka Phookan, Mr. Hrishikesh Baruah, Mr. Arjun Bobde, Mr. Jagjit Singh Chhabra, Mr. Subodh Kr. Pathak, Mr. Arman Sharma and Ms. Shimpy Garg, Advocates with them for the appearing parties.
Mr. Rajiv Mehta, Mr. Parthiv Goswami, Mr. Ahanthom Henry, Mr. Manish Goswami (for M/s. Map & Co.), Mr. M. Bhuyan, Mr. Raka Phookan, Mr. Hrishikesh Baruah, Mr. Arjun Bobde, Mr. Jagjit Singh Chhabra, Mr. Subodh Kr. Pathak, Mr. Arman Sharma and Ms. Shimpy Garg, Advocates with them for the appearing parties.
Head Note:
Service and Labour Laws
Constitution of India, 1950
Articles 14, 16 226 – Appointments – Post of Sub-Inspector of Police – 112 vacancies – Written test and Physical test – Despite advertised procedure, selection committee decided to call for interview only such candidates who had secured 40% in written test – Candidates called for interview – In all 1803 candidates short listed in order of merits – Appellant was at Sl. No. 750 – List valid for 2 years, displayed on 1.2.2000 – IGP asked Home Department to obtain sanction for appointment of 174 SIS – On or about 4.7.2000, 169 candidates, who cleared physical test appointed – Meanwhile, fresh sanction required for additional 77 vacancies, on 21.12.2000 – Then 80 posts sought to be filled from list already published – Fresh publication on 8.1.2000 – 75 Candidates out of said list appointed – 74 joined and working – On being challenged, appointment of 54 candidates set-aside, but upheld by Division Bench – Meanwhile while SLP pending appellant appeared and secured marks lower than the last general category candidate – If requires interference by Supreme Court, the appellant having not challenged selection of initial 169 candidates. Held that appellant is now estopped from challenging the appointment of 77 candidates on the ground that procedure was changed. Ashok Kumar Yadav’s cases referred and relied upon.
Constitution of India, 1950
Articles 14, 16 226 – Appointments – Post of Sub-Inspector of Police – 112 vacancies – Written test and Physical test – Despite advertised procedure, selection committee decided to call for interview only such candidates who had secured 40% in written test – Candidates called for interview – In all 1803 candidates short listed in order of merits – Appellant was at Sl. No. 750 – List valid for 2 years, displayed on 1.2.2000 – IGP asked Home Department to obtain sanction for appointment of 174 SIS – On or about 4.7.2000, 169 candidates, who cleared physical test appointed – Meanwhile, fresh sanction required for additional 77 vacancies, on 21.12.2000 – Then 80 posts sought to be filled from list already published – Fresh publication on 8.1.2000 – 75 Candidates out of said list appointed – 74 joined and working – On being challenged, appointment of 54 candidates set-aside, but upheld by Division Bench – Meanwhile while SLP pending appellant appeared and secured marks lower than the last general category candidate – If requires interference by Supreme Court, the appellant having not challenged selection of initial 169 candidates. Held that appellant is now estopped from challenging the appointment of 77 candidates on the ground that procedure was changed. Ashok Kumar Yadav’s cases referred and relied upon.
Held:
Indisputably in the advertisement, the candidates were required not only to qualify in the written test but also the physical ability test. A plain reading of the advertisement clearly goes to show that the interview was to be conducted only after holding of the said two tests. (Para 18)
There cannot, however, be any doubt whatsoever that a Selection Committee in a given situation, may lay down a procedure for the purpose of short listing the candidates but that does not mean that for the said purpose the order of holding a requisite test would be changed. In terms of a decision which was taken on 7.4.1999, the Selection Committee thought to take interview prior to holding of the physical ability test. Passing in the physical ability test is a sine qua non for selection of the candidates in the post of Sub-Inspector of Police. It was indeed a competitive test. The merit list, thus, should have been prepared not only on the basis of the written test and interview but also the physical ability test. The Selection Committee, in our opinion, committed a serious error in changing the order of holding the tests. The learned Single Judge, therefore, was correct in arriving at a conclusion that physical ability test should have been held prior to holding of the interview. (Para 19)
Appellant concededly did not question the appointment 169 candidates. If he was to challenge the validity and/or legality of the entire select list in its entirety, he should have also questioned the recruitment of 169 candidates which took place as far back as on 4.7.2000. Appellant was aware of his position in the select list. He was also aware of the change in the procedure adopted by the Selection Committee. He appeared at the interview without any demur whatsoever although was not called to appear for the physical ability test prior thereto. Appellant chose to question the appointment of 77 candidates not only on the premise that the procedure adopted by the Selection Committee was illegal but also on the premise that no new vacancy could have been filled up from the select list. (Para 20)
Appellant, having accepted the change in the selection procedure sub silentio, by not questioning the appointment of 169 candidates, cannot now be permitted to turn round and contend that the procedure adopted was illegal. He is estopped and precluded from doing so. (Para 21)
At the first stage of the recruitment process, 57 posts more than advertised 112 posts were filled up. Appellant did not question the legality and/or validity thereof. He should have done the same at the earliest possible opportunity. Having regard to the emergent situation, in regard whereto we have taken note of earlier, proposal was made to increase the number of vacancies from time to time. (Para 22)
Articles 14, 16, 226 – Appointments – Select list – Life given for 2 years – Plea that ordinarily life is one year. Held that in view of Gujarat State Dy. Executive Engineers’ Association case, exception is made out for emergent situation. (Paras 24-2)
There cannot, however, be any doubt whatsoever that a Selection Committee in a given situation, may lay down a procedure for the purpose of short listing the candidates but that does not mean that for the said purpose the order of holding a requisite test would be changed. In terms of a decision which was taken on 7.4.1999, the Selection Committee thought to take interview prior to holding of the physical ability test. Passing in the physical ability test is a sine qua non for selection of the candidates in the post of Sub-Inspector of Police. It was indeed a competitive test. The merit list, thus, should have been prepared not only on the basis of the written test and interview but also the physical ability test. The Selection Committee, in our opinion, committed a serious error in changing the order of holding the tests. The learned Single Judge, therefore, was correct in arriving at a conclusion that physical ability test should have been held prior to holding of the interview. (Para 19)
Appellant concededly did not question the appointment 169 candidates. If he was to challenge the validity and/or legality of the entire select list in its entirety, he should have also questioned the recruitment of 169 candidates which took place as far back as on 4.7.2000. Appellant was aware of his position in the select list. He was also aware of the change in the procedure adopted by the Selection Committee. He appeared at the interview without any demur whatsoever although was not called to appear for the physical ability test prior thereto. Appellant chose to question the appointment of 77 candidates not only on the premise that the procedure adopted by the Selection Committee was illegal but also on the premise that no new vacancy could have been filled up from the select list. (Para 20)
Appellant, having accepted the change in the selection procedure sub silentio, by not questioning the appointment of 169 candidates, cannot now be permitted to turn round and contend that the procedure adopted was illegal. He is estopped and precluded from doing so. (Para 21)
At the first stage of the recruitment process, 57 posts more than advertised 112 posts were filled up. Appellant did not question the legality and/or validity thereof. He should have done the same at the earliest possible opportunity. Having regard to the emergent situation, in regard whereto we have taken note of earlier, proposal was made to increase the number of vacancies from time to time. (Para 22)
Articles 14, 16, 226 – Appointments – Select list – Life given for 2 years – Plea that ordinarily life is one year. Held that in view of Gujarat State Dy. Executive Engineers’ Association case, exception is made out for emergent situation. (Paras 24-2)
Cases Reffered:
1. H.V. Nirmala v. Karnataka State Financial Corporation & Ors. [2008 (8) SCALE 315] (Para 21)
2. Sadananda Halo and Others v. Momtaz Ali Sheikh and Others [JT 2008 (3) SC 74] (Para 21)
3. Union of India and Others v. S. Vinodh Kumar and Others [2007 (8) SCC 100] (Para 21)
4. State of Bihar and Others v. Amrendra Kumar Mishra [JT 2006 (12) SC 304] (Para 25)
5. Union of India and Others v. B. Valluvan and Others [JT 2006 (9) SC 385] (Para 24)
6. Surinder Singh v. State of Punjab [JT 1997 (7) SC 537] (Para 24]
7. Gujarat State Dy. Executive Engineers’ Association v. State of Gujarat and Others [JT 1994 (3) SC 559] (Para 27)
8. State of U.P. v. Rafiquddin and Others [1987 (Supp.) SCC 401] (Para 21)
9. Ashok Kumar Yadav and Others v. State of Haryana and Others [1985 (4) SCC 417] (relied upon) (Para 21)
2. Sadananda Halo and Others v. Momtaz Ali Sheikh and Others [JT 2008 (3) SC 74] (Para 21)
3. Union of India and Others v. S. Vinodh Kumar and Others [2007 (8) SCC 100] (Para 21)
4. State of Bihar and Others v. Amrendra Kumar Mishra [JT 2006 (12) SC 304] (Para 25)
5. Union of India and Others v. B. Valluvan and Others [JT 2006 (9) SC 385] (Para 24)
6. Surinder Singh v. State of Punjab [JT 1997 (7) SC 537] (Para 24]
7. Gujarat State Dy. Executive Engineers’ Association v. State of Gujarat and Others [JT 1994 (3) SC 559] (Para 27)
8. State of U.P. v. Rafiquddin and Others [1987 (Supp.) SCC 401] (Para 21)
9. Ashok Kumar Yadav and Others v. State of Haryana and Others [1985 (4) SCC 417] (relied upon) (Para 21)
JUDGEMENT:
S.B. Sinha, J.
1. Leave granted.
2. This appeal is directed against a judgment and order dated 5.5.2006 passed by a Division Bench of the Guwahati High Court in Writ Appeal No.54 of 2004 whereby and whereunder the judgment and order dated 12.2.2004 passed by a learned Single Judge of the said Court was modified.
3. The basic fact of the matter is not in dispute.
The Director General of Police, Assam published an advertisement inviting applications for 112 vacancies which were likely to arise in the post of Sub-Inspector of Police on or about 6.9.1997, the relevant clauses laying down the procedures therefor, were as under :
‘On selection candidates will be put through a prescribed course of training for one year at the Assam Police Training College. Dergaon and during the period of training they will be treated as cadre S.I. of Police. The cadets who fail in the final examination after training at the Police Training College will be liable to be discharged. The candidates securing top positions in the final Examination will be considered for U.B. and the rest for A.B. subject to the 20 points Roster.
All candidates possessing necessary qualification will appear in a written test which will comprise of one paper of 3 (three) hours duration. Questions will be on subjects like General Knowledge, History Science, Basic Mathematics, Comprehension etc. Venue of the test will be decided by the Supdt. Of Police of the Districts in which candidates are presently residing as shown in the application form. They will contact Police Reserve of the Districts for the purpose and ascertain dates.
Those candidates who qualify in the written test will be required to appear in a physical test and interview to be conducted centrally for which date will be notified later.
The candidates will have to appear in the written test, physical test and interview at their own expenses.’
4. Pursuant thereto or in furtherance thereof, appellant as also the private respondents applied therefor. They were asked by a call letter dated 18.3.1998 to appear at the written test on 25th/26th April, 1998 and physical ability test on 27th/28th April, 1998. Indisputably, the written test was held on 26.4.1998. It, however, appears that despite laying down the said procedures in the advertisement, a decision was taken by the Selection Committee to call such candidates for interview only who had acquired 40% in the written test. Call letters were issued accordingly, a sample copy whereof is as under :
‘You are requested to appear in the interview to be held in the venue noted below alongwith original certificates.
No TA/DA would be paid for appearing in the above interview.
In case you are selected in the interview you will be called for physical test for final selection.’
5. Appellants as also the private respondents amongst others appeared in the interview before the duly constituted Interview Boards. The Selection Committee short listed 1803 candidates in order of merit. The said select list is said to have been published and hung on the notice board of the office of the Director General of Police on 1.2.2000. Appellant’s position in the select list was 750. He obtained 32 points in the interview and 92 in the written test, total being 124 marks.
It is stated that the life of the said select list was two years.
6. Allegedly, on 2.3.2000, the Inspector General of Police requested the Home Department of the Government of Assam to obtain sanction of the State Level Empowered Committee for appointment of 174 Sub-Inspector of Police pursuant whereto the Home Department accorded sanction therefor.
7. Those candidates who were found eligible to be called for physical ability test were asked to appear therein which was held on 19.2.2000. On or about 4.7.2000, 169 candidates who had cleared the physical test/medical test were appointed on the post of Sub-Inspector of Police.
The said order, appointing the aforementioned 169 posts was not the subject matter of the challenge before the High Court. However, it appears that during the currency of the life of the select list, the Director General of Police, by a letter dated 21.12.2000, addressed to the Commissioner-Secretary to the Home Department, Dispur, asked for sanction of the State Level Empowered Committee (SLEC) to fill up 77 additional vacancies that had arisen from the aforementioned select list, stating :
‘I am writing to inform you that presently, there are 2154 number of vacancies in the rank of constables (Battalion 1136, District AB 504, District UB 514) and 77 Nos. of vacancies in the rank of S.Is in the Assam Police. These are all functional posts. In the context of insurgency situation obtained in the state and that there will be Assembly Election within the next four months, we will need to mobilize all the manpower. In view of this, it is requested that permission of the State Level Empowered Committee may be conveyed to us to fill up these vacancies by direct recruitment from the results of the records of the previous recruitment rallies already available with us. Government orders on the same may kindly be issued immediately.’
8. Allegedly, urgency and compelling reasons for which the said vacancies were to be filled up was vast deteriorating law and order situation in the State as also sudden spurt of extremists related incidents of violence. It was furthermore stated that in the Brahmaputra vally, the ULFA and the NDFB had intensified their subversive activities and resorted to widespread killing and extortion spree in the hill district of Karbi Anglong and the NC Hills where the UPDS and DHD had already been active. It was furthermore contended that the NSCN (IM) and the Kuki militants also resorted to sporadic acts of violence in the said two districts. According to the State, during the period 1.7.2000 to 31.12.2000 356 extremists related incidents took place and between the period 1.1.2001 to 30.6.2001, 259 such incidents took place wherein a large number of civilians, force personnel and extremists were killed. It was contended that the number of kidnapping which took place during the aforementioned period was 70.
9. An office note was thereafter put up for consideration of the Director General of Police in respect of 88 vacancies which had arisen by that time in the rank of Sub-Inspector of Police. Approval was sought for from the Director General of Police as to whether the said vacancies be filled up from amongst the candidates whose names appear in the aforementioned select list from Serial No.175 onwards as the list had already been acted upon upto serial No.174. The Director General of Police is said to have accorded the necessary approval. Pursuant thereto, the Home Commissioner was requested to sanction 80 posts in the existing vacancies in the State in place of 77 vacancies. The said select list was again published on 8.1.2001. 84 candidates out of the said select list were asked to appear in the physical ability test on 22.1.2001. Three candidates failed to appear in the physical test and four others failed to clear the physical test and thereafter 77 candidates were called to appear for the medical test on 25.1.20001 out of which 75 candidates were found suitable for appointment. The Deputy Secretary to the Government of Assam, Home Department, thereafter by a letter dated 20.2.2001 conveyed the sanction of the SLEC for direct recruitment in respect of 80 vacancies to the post of Sub-Inspector of Police, stating :
‘In inviting a reference to your letter cited above, I am directed to inform you that the Personnel (B) Department has obtained and conveyed the clearance of the SLEC for direct recruitment of 80 (UB) Sub-Inspector of Police by observing necessary formalities as required in this regard.
This issue as per endorsement of the Personnel (B) Department communicated vide their consulted U/O No.141/2001, dated 17.2.2001.’
10. Appellant herein and some other candidates thereafter filed a writ petition before the High Court impugning the selection of 84 candidates to the post of Sub-Inspector of Police in February 2001.
11. Indisputably, during pendency of the said writ petition, posts were filled up as 75 persons who had been found suitable were offered appointment to the post of Sub-Inspector of Police on 2.3.2001. The respondents who were 74 in number had accepted the said offer of appointment on 3.3.2001; one of them, however, did not join the post. They were sent for and completed their training. Indisputably, they have been working in the said post. By reason of a judgment and order dated 12.2.2004 a learned Single Judge of the said Court, however, set aside the appointment of 54 candidates, opining :
‘Surely, if the physical test constituted a competitive component of the selection process, calling the 84/76 persons for the physical test on the basis of the marks secured by them in the written test and oral interview and in ignoring the petitioners was fatal. All the candidates were not judged by a uniform process; those appointed and those left out were assessed by two different yardsticks, discrimination, therefore, is writ large. The possibility of the petitioners, who were not appointed being placed higher than those eventually appointed had the petitioners also been assigned marks in the physical test cannot be ruled out, particularly, when the records produced reveal that the difference of the total marks secured by the candidates in the written test and oral interview was exceedingly small. Illustratively, note may be taken of the fact that not only a large number of candidates secured the same marks, the first of the 84 candidates called for the physical test had secured 147 marks in the written test and oral interview whereas the last candidate out of the group of 84/76 called for the physical test had secured 146 marks. The petitioner in WP (C) No.628/01, who secured the 750th position, secured 124 marks, i.e., a difference of only 22 marks in comparison to the last of the candidate appointed. The possibility of an entirely different picture emerging, if the petitioners have been called for the physical test, therefore, looms large. For the aforesaid reasons, this Court has no hesitation in reaching the conclusion that the fundamental rights of the petitioners under Articles 14 and 16 of the Constitution have been infringed by the procedure adopted. The yardstick applied did not result in a correct determination of the inter se merit of all the candidates for the purpose of securing appointment.’
Contention of the respondents herein that on equitable grounds, their appointment should not be interfered with, was rejected, stating :
‘Equity must not be equated with compassion. Equitable principles must emanate from facts which by themselves are unusual and peculiar. A balance has to be struck and the Court must be cautious to ensure that its endeavour to do equity does not amount to judicial benevolence or acquiescence of established violation of fundamental rights and the principles of Rule of law.’
It was directed :
‘For all the aforesaid reasons, this Court is unable to save any of the appointments of the 84/76 Sub- Inspectors of Police made on 1.3.2001. All such appointments, therefore, shall stand interfered with. In view of the conclusion reached, no relief to the petitioners by directing consideration of their cases afresh, will also be possible. However, in the totality of the facts and circumstances of the case, it is considered appropriate to direct that in the fresh selection process that will now have to be initiated by the State, if any of the candidates, who had taken part in the earlier selection process, opts to apply for the posts that may be advertised, suitable relaxation of age, if required will be made by the authorities.’
12. Three Writ Appeals were preferred thereagainst. By reason of the impugned judgment dated 5.5.2006, a Division Bench of the High Court, while upholding the appointment of the private respondents, set aside the judgment of the learned Single Judge directing them to fill up remaining 14 vacancies by holding physical and medical test of the candidates from the select list containing the names of 1803 candidates.
13. Appellant herein filed Special Leave Petition on 3.7.2006. However, even prior thereto, i.e. on 24.6.2006 in terms of the judgment of the Division Bench of the High Court, an advertisement was issued in a local daily ‘The Assam Tribune’. Indisputably, appellant with others appeared in the physical test, of course, without prejudice to his rights and contentions herein. He secured only 20 marks (144 marks in aggregate) in the physical test which was lower than the marks secured by the last general category candidate who had secured 153.5 marks.
14. Mr. Raju Ramachandran, learned senior counsel appearing on behalf of the appellant, would submit that the Division Bench of the High Court committed a serious error in passing the impugned judgment in so far as it failed to take into consideration the importance of holding a physical test before preparation of the select list. The learned counsel urged that arbitrariness on the part of the Selection Committee is apparent from the fact that the order of holding tests kept on changing as the physical ability test was pushed to the background. It was furthermore submitted that the Division Bench of the High Court did not assign sufficient and cogent reasons for interfering with the well considered judgment of the learned Single Judge and proceeded to modify the same without any applicant of mind.
Our attention was moreover drawn to the fact that the purported reasons for modification which were enumerated in paragraph 12 of the impugned judgment really contain the statement of facts and, thus, the same is wholly unsustainable.
15. Mr. P.K. Goswami, learned senior counsel appearing on behalf of the private respondents and Mr. Phukan, appearing on behalf of the State, on the other hand, would contend that the appellant, in the facts and circumstances of this case, must be held to be estopped and precluded from raising any contention with regard to the validity or otherwise of the procedure for selection adopted by the Selection Committee as he had participated in the Selection process without any demur whatsoever.
16. Mr. Manish Goswami, learned counsel appearing on behalf of respondent No.157, Rajesh Kumar Das, would draw our attention to the fact that the said respondent was an NCC candidate and as such was entitled to a preferential treatment. He, having been ignored, filed a writ petition being WP(C) No.1757 of 2000 and by an order dated 7.4.2000, a learned Judge of the High Court passed an interim order to the following effect :
‘Mr. Uzir, learned counsel for the petitioner submitted that an advertisement was published inviting applications for filling up of vacant posts of Sub-Inspector (UB), Assam Police Force and it was clearly stated in the advertisement that preference will be given to those candidates who possess N.C.C. `C’ certificate. The petitioner also possesses N.C.C. `C’ certificate and yet he did not get preference to the selection. The petitioner had therefore, challenged the selection to the post of Sub-Inspector of Police (UB).
As an interim measure, I direct that one post of Sub-Inspector (UB) out of the 31 posts advertised shall be kept vacant till pendency of the writ petition.’
The said writ petition was allowed by a judgment and order dated 10.8.2000, directing :
‘While issuing a notice of motion, this Court by an order dated 7.4.2000 passed an interim order directing that one post of Sub-Inspector (UB) out of the 31 such posts advertised shall be kept vacant till the disposal of this writ petition.
This writ petition is finally disposed of with a direction to the respondent No.2, the Director General of Police, Government of Assam, to consider the case of the petitioner for appointment against the post of Sub-Inspector (UB) directed to be kept vacant by this Court’s interim order dated 7.4.2000, as a special case subject to verification as to his antecedents in view of the fact that the advertisement categorically mentioned that the candidates possessing NCC certificate would be given preference and the petitioner is the only candidate who possesses NCC certificate to be precise, the highest NCC `C’ certificate.
The petitioner shall furnish a certified copy of this order along with a copy of this writ petition and the annexures thereto to the respondent No.2, the Director General of Police, Assam, who shall comply with the above direction of this court within 10 (ten) days from the date of receipt of the same.’
17. It is stated that pursuant thereto and in furtherance thereof only the said respondent had been appointed and had been working since then. Our attention was furthermore drawn to the fact that against the order of the learned Single Judge, a writ appeal had been filed by him which is pending.
18. Indisputably in the advertisement, the candidates were required not only to qualify in the written test but also the physical ability test. A plain reading of the advertisement clearly goes to show that the interview was to be conducted only after holding of the said two tests.
19. In tune with the said requirements only, the candidates were asked to appear in the written test on 25/26.4.1998 and in the physical test on 27/28.4.1998. There cannot, however, be any doubt whatsoever that a Selection Committee in a given situation, may lay down a procedure for the purpose of short listing the candidates but that does not mean that for the said purpose the order of holding a requisite test would be changed. In terms of a decision which was taken on 7.4.1999, the Selection Committee thought to take interview prior to holding of the physical ability test. Physical ability test keeping in view the nature of the job required to be performed by the candidates was an extremely important one. Passing in the physical ability test is a sine qua non for selection of the candidates in the post of Sub-Inspector of Police. It was indeed a competitive test. The merit list, thus, should have been prepared not only on the basis of the written test and interview but also the physical ability test. The Selection Committee, in our opinion, committed a serious error in changing the order of holding the tests. The learned Single Judge, therefore, was correct in arriving at a conclusion that physical ability test should have been held prior to holding of the interview.
1. Leave granted.
2. This appeal is directed against a judgment and order dated 5.5.2006 passed by a Division Bench of the Guwahati High Court in Writ Appeal No.54 of 2004 whereby and whereunder the judgment and order dated 12.2.2004 passed by a learned Single Judge of the said Court was modified.
3. The basic fact of the matter is not in dispute.
The Director General of Police, Assam published an advertisement inviting applications for 112 vacancies which were likely to arise in the post of Sub-Inspector of Police on or about 6.9.1997, the relevant clauses laying down the procedures therefor, were as under :
‘On selection candidates will be put through a prescribed course of training for one year at the Assam Police Training College. Dergaon and during the period of training they will be treated as cadre S.I. of Police. The cadets who fail in the final examination after training at the Police Training College will be liable to be discharged. The candidates securing top positions in the final Examination will be considered for U.B. and the rest for A.B. subject to the 20 points Roster.
All candidates possessing necessary qualification will appear in a written test which will comprise of one paper of 3 (three) hours duration. Questions will be on subjects like General Knowledge, History Science, Basic Mathematics, Comprehension etc. Venue of the test will be decided by the Supdt. Of Police of the Districts in which candidates are presently residing as shown in the application form. They will contact Police Reserve of the Districts for the purpose and ascertain dates.
Those candidates who qualify in the written test will be required to appear in a physical test and interview to be conducted centrally for which date will be notified later.
The candidates will have to appear in the written test, physical test and interview at their own expenses.’
4. Pursuant thereto or in furtherance thereof, appellant as also the private respondents applied therefor. They were asked by a call letter dated 18.3.1998 to appear at the written test on 25th/26th April, 1998 and physical ability test on 27th/28th April, 1998. Indisputably, the written test was held on 26.4.1998. It, however, appears that despite laying down the said procedures in the advertisement, a decision was taken by the Selection Committee to call such candidates for interview only who had acquired 40% in the written test. Call letters were issued accordingly, a sample copy whereof is as under :
‘You are requested to appear in the interview to be held in the venue noted below alongwith original certificates.
No TA/DA would be paid for appearing in the above interview.
In case you are selected in the interview you will be called for physical test for final selection.’
5. Appellants as also the private respondents amongst others appeared in the interview before the duly constituted Interview Boards. The Selection Committee short listed 1803 candidates in order of merit. The said select list is said to have been published and hung on the notice board of the office of the Director General of Police on 1.2.2000. Appellant’s position in the select list was 750. He obtained 32 points in the interview and 92 in the written test, total being 124 marks.
It is stated that the life of the said select list was two years.
6. Allegedly, on 2.3.2000, the Inspector General of Police requested the Home Department of the Government of Assam to obtain sanction of the State Level Empowered Committee for appointment of 174 Sub-Inspector of Police pursuant whereto the Home Department accorded sanction therefor.
7. Those candidates who were found eligible to be called for physical ability test were asked to appear therein which was held on 19.2.2000. On or about 4.7.2000, 169 candidates who had cleared the physical test/medical test were appointed on the post of Sub-Inspector of Police.
The said order, appointing the aforementioned 169 posts was not the subject matter of the challenge before the High Court. However, it appears that during the currency of the life of the select list, the Director General of Police, by a letter dated 21.12.2000, addressed to the Commissioner-Secretary to the Home Department, Dispur, asked for sanction of the State Level Empowered Committee (SLEC) to fill up 77 additional vacancies that had arisen from the aforementioned select list, stating :
‘I am writing to inform you that presently, there are 2154 number of vacancies in the rank of constables (Battalion 1136, District AB 504, District UB 514) and 77 Nos. of vacancies in the rank of S.Is in the Assam Police. These are all functional posts. In the context of insurgency situation obtained in the state and that there will be Assembly Election within the next four months, we will need to mobilize all the manpower. In view of this, it is requested that permission of the State Level Empowered Committee may be conveyed to us to fill up these vacancies by direct recruitment from the results of the records of the previous recruitment rallies already available with us. Government orders on the same may kindly be issued immediately.’
8. Allegedly, urgency and compelling reasons for which the said vacancies were to be filled up was vast deteriorating law and order situation in the State as also sudden spurt of extremists related incidents of violence. It was furthermore stated that in the Brahmaputra vally, the ULFA and the NDFB had intensified their subversive activities and resorted to widespread killing and extortion spree in the hill district of Karbi Anglong and the NC Hills where the UPDS and DHD had already been active. It was furthermore contended that the NSCN (IM) and the Kuki militants also resorted to sporadic acts of violence in the said two districts. According to the State, during the period 1.7.2000 to 31.12.2000 356 extremists related incidents took place and between the period 1.1.2001 to 30.6.2001, 259 such incidents took place wherein a large number of civilians, force personnel and extremists were killed. It was contended that the number of kidnapping which took place during the aforementioned period was 70.
9. An office note was thereafter put up for consideration of the Director General of Police in respect of 88 vacancies which had arisen by that time in the rank of Sub-Inspector of Police. Approval was sought for from the Director General of Police as to whether the said vacancies be filled up from amongst the candidates whose names appear in the aforementioned select list from Serial No.175 onwards as the list had already been acted upon upto serial No.174. The Director General of Police is said to have accorded the necessary approval. Pursuant thereto, the Home Commissioner was requested to sanction 80 posts in the existing vacancies in the State in place of 77 vacancies. The said select list was again published on 8.1.2001. 84 candidates out of the said select list were asked to appear in the physical ability test on 22.1.2001. Three candidates failed to appear in the physical test and four others failed to clear the physical test and thereafter 77 candidates were called to appear for the medical test on 25.1.20001 out of which 75 candidates were found suitable for appointment. The Deputy Secretary to the Government of Assam, Home Department, thereafter by a letter dated 20.2.2001 conveyed the sanction of the SLEC for direct recruitment in respect of 80 vacancies to the post of Sub-Inspector of Police, stating :
‘In inviting a reference to your letter cited above, I am directed to inform you that the Personnel (B) Department has obtained and conveyed the clearance of the SLEC for direct recruitment of 80 (UB) Sub-Inspector of Police by observing necessary formalities as required in this regard.
This issue as per endorsement of the Personnel (B) Department communicated vide their consulted U/O No.141/2001, dated 17.2.2001.’
10. Appellant herein and some other candidates thereafter filed a writ petition before the High Court impugning the selection of 84 candidates to the post of Sub-Inspector of Police in February 2001.
11. Indisputably, during pendency of the said writ petition, posts were filled up as 75 persons who had been found suitable were offered appointment to the post of Sub-Inspector of Police on 2.3.2001. The respondents who were 74 in number had accepted the said offer of appointment on 3.3.2001; one of them, however, did not join the post. They were sent for and completed their training. Indisputably, they have been working in the said post. By reason of a judgment and order dated 12.2.2004 a learned Single Judge of the said Court, however, set aside the appointment of 54 candidates, opining :
‘Surely, if the physical test constituted a competitive component of the selection process, calling the 84/76 persons for the physical test on the basis of the marks secured by them in the written test and oral interview and in ignoring the petitioners was fatal. All the candidates were not judged by a uniform process; those appointed and those left out were assessed by two different yardsticks, discrimination, therefore, is writ large. The possibility of the petitioners, who were not appointed being placed higher than those eventually appointed had the petitioners also been assigned marks in the physical test cannot be ruled out, particularly, when the records produced reveal that the difference of the total marks secured by the candidates in the written test and oral interview was exceedingly small. Illustratively, note may be taken of the fact that not only a large number of candidates secured the same marks, the first of the 84 candidates called for the physical test had secured 147 marks in the written test and oral interview whereas the last candidate out of the group of 84/76 called for the physical test had secured 146 marks. The petitioner in WP (C) No.628/01, who secured the 750th position, secured 124 marks, i.e., a difference of only 22 marks in comparison to the last of the candidate appointed. The possibility of an entirely different picture emerging, if the petitioners have been called for the physical test, therefore, looms large. For the aforesaid reasons, this Court has no hesitation in reaching the conclusion that the fundamental rights of the petitioners under Articles 14 and 16 of the Constitution have been infringed by the procedure adopted. The yardstick applied did not result in a correct determination of the inter se merit of all the candidates for the purpose of securing appointment.’
Contention of the respondents herein that on equitable grounds, their appointment should not be interfered with, was rejected, stating :
‘Equity must not be equated with compassion. Equitable principles must emanate from facts which by themselves are unusual and peculiar. A balance has to be struck and the Court must be cautious to ensure that its endeavour to do equity does not amount to judicial benevolence or acquiescence of established violation of fundamental rights and the principles of Rule of law.’
It was directed :
‘For all the aforesaid reasons, this Court is unable to save any of the appointments of the 84/76 Sub- Inspectors of Police made on 1.3.2001. All such appointments, therefore, shall stand interfered with. In view of the conclusion reached, no relief to the petitioners by directing consideration of their cases afresh, will also be possible. However, in the totality of the facts and circumstances of the case, it is considered appropriate to direct that in the fresh selection process that will now have to be initiated by the State, if any of the candidates, who had taken part in the earlier selection process, opts to apply for the posts that may be advertised, suitable relaxation of age, if required will be made by the authorities.’
12. Three Writ Appeals were preferred thereagainst. By reason of the impugned judgment dated 5.5.2006, a Division Bench of the High Court, while upholding the appointment of the private respondents, set aside the judgment of the learned Single Judge directing them to fill up remaining 14 vacancies by holding physical and medical test of the candidates from the select list containing the names of 1803 candidates.
13. Appellant herein filed Special Leave Petition on 3.7.2006. However, even prior thereto, i.e. on 24.6.2006 in terms of the judgment of the Division Bench of the High Court, an advertisement was issued in a local daily ‘The Assam Tribune’. Indisputably, appellant with others appeared in the physical test, of course, without prejudice to his rights and contentions herein. He secured only 20 marks (144 marks in aggregate) in the physical test which was lower than the marks secured by the last general category candidate who had secured 153.5 marks.
14. Mr. Raju Ramachandran, learned senior counsel appearing on behalf of the appellant, would submit that the Division Bench of the High Court committed a serious error in passing the impugned judgment in so far as it failed to take into consideration the importance of holding a physical test before preparation of the select list. The learned counsel urged that arbitrariness on the part of the Selection Committee is apparent from the fact that the order of holding tests kept on changing as the physical ability test was pushed to the background. It was furthermore submitted that the Division Bench of the High Court did not assign sufficient and cogent reasons for interfering with the well considered judgment of the learned Single Judge and proceeded to modify the same without any applicant of mind.
Our attention was moreover drawn to the fact that the purported reasons for modification which were enumerated in paragraph 12 of the impugned judgment really contain the statement of facts and, thus, the same is wholly unsustainable.
15. Mr. P.K. Goswami, learned senior counsel appearing on behalf of the private respondents and Mr. Phukan, appearing on behalf of the State, on the other hand, would contend that the appellant, in the facts and circumstances of this case, must be held to be estopped and precluded from raising any contention with regard to the validity or otherwise of the procedure for selection adopted by the Selection Committee as he had participated in the Selection process without any demur whatsoever.
16. Mr. Manish Goswami, learned counsel appearing on behalf of respondent No.157, Rajesh Kumar Das, would draw our attention to the fact that the said respondent was an NCC candidate and as such was entitled to a preferential treatment. He, having been ignored, filed a writ petition being WP(C) No.1757 of 2000 and by an order dated 7.4.2000, a learned Judge of the High Court passed an interim order to the following effect :
‘Mr. Uzir, learned counsel for the petitioner submitted that an advertisement was published inviting applications for filling up of vacant posts of Sub-Inspector (UB), Assam Police Force and it was clearly stated in the advertisement that preference will be given to those candidates who possess N.C.C. `C’ certificate. The petitioner also possesses N.C.C. `C’ certificate and yet he did not get preference to the selection. The petitioner had therefore, challenged the selection to the post of Sub-Inspector of Police (UB).
As an interim measure, I direct that one post of Sub-Inspector (UB) out of the 31 posts advertised shall be kept vacant till pendency of the writ petition.’
The said writ petition was allowed by a judgment and order dated 10.8.2000, directing :
‘While issuing a notice of motion, this Court by an order dated 7.4.2000 passed an interim order directing that one post of Sub-Inspector (UB) out of the 31 such posts advertised shall be kept vacant till the disposal of this writ petition.
This writ petition is finally disposed of with a direction to the respondent No.2, the Director General of Police, Government of Assam, to consider the case of the petitioner for appointment against the post of Sub-Inspector (UB) directed to be kept vacant by this Court’s interim order dated 7.4.2000, as a special case subject to verification as to his antecedents in view of the fact that the advertisement categorically mentioned that the candidates possessing NCC certificate would be given preference and the petitioner is the only candidate who possesses NCC certificate to be precise, the highest NCC `C’ certificate.
The petitioner shall furnish a certified copy of this order along with a copy of this writ petition and the annexures thereto to the respondent No.2, the Director General of Police, Assam, who shall comply with the above direction of this court within 10 (ten) days from the date of receipt of the same.’
17. It is stated that pursuant thereto and in furtherance thereof only the said respondent had been appointed and had been working since then. Our attention was furthermore drawn to the fact that against the order of the learned Single Judge, a writ appeal had been filed by him which is pending.
18. Indisputably in the advertisement, the candidates were required not only to qualify in the written test but also the physical ability test. A plain reading of the advertisement clearly goes to show that the interview was to be conducted only after holding of the said two tests.
19. In tune with the said requirements only, the candidates were asked to appear in the written test on 25/26.4.1998 and in the physical test on 27/28.4.1998. There cannot, however, be any doubt whatsoever that a Selection Committee in a given situation, may lay down a procedure for the purpose of short listing the candidates but that does not mean that for the said purpose the order of holding a requisite test would be changed. In terms of a decision which was taken on 7.4.1999, the Selection Committee thought to take interview prior to holding of the physical ability test. Physical ability test keeping in view the nature of the job required to be performed by the candidates was an extremely important one. Passing in the physical ability test is a sine qua non for selection of the candidates in the post of Sub-Inspector of Police. It was indeed a competitive test. The merit list, thus, should have been prepared not only on the basis of the written test and interview but also the physical ability test. The Selection Committee, in our opinion, committed a serious error in changing the order of holding the tests. The learned Single Judge, therefore, was correct in arriving at a conclusion that physical ability test should have been held prior to holding of the interview.
