the ratio of number of vacancies to the number of
candidates for being called for interview; although it may
be a rule of prudence. This Court has found in Mohinder
Sain Garg Vs. State of Punjab and Ors., (1991) 1 SCC 662,
as also in Ashok Kumar Yadav Vs. State of Haryana, (1985) 4
SCC 417, that although it may be improper for the Selection
Committee to call such large number of candidates for
interview, but selection cannot be vitiated merely on this
ground if such an action is not tainted by mala fide or
oblique motive. In Mohinder Sain Garg (supra), this Court
gave one more reason not to accept this argument which
squarely applies to this case as well; this Court found
that the Respondents stood no chance of being called for
interview if candidates upto three times the number of
posts were called for interview. In the case on hand, on
this score, learned counsel for the State of Uttar Pradesh
has made a similar contention. Even the appellants herein
have not presented a case that had they been called for
interview, being only four times the number of vacancies,
they would have been short listed in that list. Thus, we
find this argument as a misplaced one.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6549 OF 2014
HC Pradeep Kumar Rai and Ors. ...Appellant(s)
:Versus:
Dinesh Kumar Pandey and Ors. ...Respondent(s)
Citation;AIR 2015 SC2342
2. This batch of appeals raises a common controversy
relating to the promotion of Constables and Head ConstablesPage 2
2
to the rank of Sub-Inspectors in the State of Uttar
Pradesh. The process of promotion started way back in 1999
and has since embroiled in litigation. Basically, the
candidates appearing for promotion from the rank of
Constable or Head Constable to the rank of Sub-Inspector
have challenged the selection and promotion process at
various stages of the promotion process.
3. The facts necessary for disposal of this case are that
the Government of Uttar Pradesh took a decision on
23.01.1999 for recruitment of departmental candidates to
the posts of Sub-inspectors in the State, both by direct
recruitment and by promotion of Constables and head
Constables. In continuation of the order dated 23.01.1999,
another Government Order was issued on 3.02.1999, according
to which all the vacancies of Sub-inspectors till
31.12.1999 were to be filled up. On 27.02.1999, the
Government of Uttar Pradesh issued another Order which
superseded the earlier Order dated 23.01.1999. The
27.02.1999 order provided a complete pattern of the
examination and process of selection and promotion. As perPage 3
3
the new pattern the promotion process was to be conducted
in three steps: (1) The preliminary written examination and
infantry test/physical test; (2) Main written Examination;
and (3) Interview. Candidates who qualified the preliminary
examination and IT/PT were eligible to appear in the main
written examination.
4. As per the existing rules in 1999, 50% of total
vacancies were to be filled up by promotion of persons
serving as Constables and Head Constables and the remaining
50% vacancies were to be filled up by direct recruitment.
It appears that at the time the selection process began,
there were 2956 vacancies of the rank of Sub-inspectors in
the State. So initially the number of vacancies for
promotees quota were 1478. However, It appears that vide
order dated 10.01.2000, another 86 posts were added to the
promotees quota to be filled up by the departmental
examination in pursuance of the direction made by State
Backward Classes Commission, to maintain the ratio of
promotees and direct recruits at the rate of 50%. Thus, the
number of vacancies for promotees quota became 1564. It isPage 4
4
to be noted that pursuant to the Division Bench judgment of
the High Court of Allahabad in Special Appeal No.1372 of
1999: State of Uttar Pradesh Vs. Ranbir Singh, the
Government of Uttar Pradesh created another class of
promotees which consisted of 385 Head Constables who were
to be promoted directly by virtue of the length of their
service without undergoing the selection process. The
creation of this class is not contended before us and that
controversy is settled by prior litigation. Thus,
eventually it appears that total vacancies for people who
were to be promoted after the selection process was 1176.
5. The preliminary test was held on 05.09.1999 and the
result was announced on 05.11.1999 and those who qualified
the preliminary test were permitted to appear in IT/PT
which was held in December 1999. The result of IT/PT test
was declared on 11.02.2000, which was challenged before the
High Court of Allahabad in Writ Petition No.9694/2000:
Triloki Nath Pandey and others Vs. State of Uttar Pradesh,
and the entire process was stayed till the conclusion of
litigation. Thus, at the end of that round of litigationPage 5
5
the State of Uttar Pradesh was directed to go ahead with
the selection procedure. Government Notification for the
main written examination was issued on 9.12.2004 and the
main written examination was conducted on 25.12.2005.
Result of the main written test was declared on 24.01.2006
and pursuant thereto, 9671 candidates were called for
interview. The interviews were held at four centres between
15.05.2006 to 20.07.2006. The results of the interviews
were made available on 11.11.2006.
6. It was after the declaration of the result of interview
that the present round of litigation began, whereby the
unsuccessful candidates challenged the interview process on
several grounds. Initially the writ petition was filed
before the Allahabad High Court, Lucknow Bench, which
allowed the petition and directed the State to conduct
fresh interview for the 1176 vacancies of the rank of
Sub-Inspectors. The Division Bench of the Allahabad High
Court allowed the appeal filed by the State Government,
thus, reversing the judgment of the learned Single Judge.
The Division Bench directed the State to appoint thePage 6
6
candidates who were selected after the interview already
held, for the rank of Sub-Inspectors.
7. The learned Single Judge decision weighed on the
following points:
(i) There was substantial departure from the Police
Regulations as amended upto 1977 in the entire
process of selection and promotion.
(ii) The number of candidates called for interview was
much higher than the required four times the
number of vacancies available. The four time the
vacancies rule is found in paragraph 445 of Uttar
Pradesh Police Regulations, 1976.
The sealed cover procedure was not followed for
the candidates against whom any disciplinary or
criminal proceedings are pending. The names of
such persons were also displayed on the tentative
list of selected candidates.
(iii) The members of the Interview committee who
conducted the interviews did not give separate
marks individually but a single collective markingPage 7
7
for each candidate was done by the committee.
The names of the persons who are already dead or are
under training in some other Wing of Police Department
like PAC, were also included in the tentative list of
selected candidates after the interview.
8. The Division Bench found that the learned Single Judge
had made findings on three basic points. The Division Bench
upturned those three findings and reversed the judgment on
following grounds:
(i) The Division Bench found that the rule of number
of candidates being called for interview be not
more than four times the number of vacancies was
found in 1977 UP Police Regulations and same was
superseded by the Government Order of 27.02.1999.
The 27.02.1999 order provided that all candidates
securing 50% marks in main written exam shall be
called for the interview.
(ii) It further held that once the candidates had
participated in the process of selection without
raising objections; they could not be allowed toPage 8
8
challenge the process at a later stage.
(iii) With respect to sealed cover procedure, the
Division Bench noted that this procedure was a
requirement under the order dated 23.01.1999 but
not under order dated 27.02.1999. Since the latter
specifically superseded the former order, the
sealed cover procedure was not requirement as
such.
(iv) The Division Bench, with respect to composite
marking in the interview, found that it is for the
examining body to decide as to how marking should
be done. Separate marking or consolidated marking
are two methods of assessment and it is for the
examining body to decide, not the Court, which
method is preferable.
(v) Division Bench further refused to accept the
argument that the later government order of
27.02.1999 was not to govern the selection for
vacancies which were announced by order dated
23.01.1999 and 03.02.1999. It found that this was
a mischievous argument and very clearly thePage 9
9
procedure set out under order dated 27.02.1999 was
followed throughout the selection process.
9. We have heard the learned counsels appearing for the
parties. We find that the Division Bench of the High Court
was very lucid and correct in its findings and conclusion
reached thereupon. Nevertheless, we will discuss all the
points raised before us and give our findings.
10. Regulation 445 of the said Regulations of UP Government
(as amended upto 31.08.1977) provides for qualifications
and procedure for promotion from rank of Constable and Head
Constables to Sub Inspectors. The procedure therein
consists of Notice, pre-examination (essay type written
exam), examination of character roll, main written
examination and finally interview. The Regulation provides
that the number of candidates called for interview, on the
basis of the merit of the main written examination, shall
be four times the number of vacancies. In the interview,
40% marks are to be allocated to the service record. It has
been submitted and clarified to us that these regulationsPage 10
10
are actually a compilation of Government Orders issued from
time to time. Therefore, we find that the Regulations are
not a superior law as compared to the Government Orders and
it may be amiss to suggest that Regulations would prevail
over the Government Orders by virtue of being called
Regulations. Having said that, we go on to examine the
Government Orders issued by the UP Government in 1999.
11. Government Order dated 23.01.1999 is worded as “His
Excellency the Governor hereby orders to adopt the
following procedures for selection of departmental
candidates as Sub Inspectors, Civil Police of UP Police.”
The said Order provides for preliminary examination
(objective type), main written examination and the
personality test (or the interview). It provided that the
panelists conducting personality test must give marks to
each candidate separately and the head of the Recruitment
Board must aggregate the marks given by all panelist and
thereafter the final result would be declared. The Order
also provided for character roll and service record shall
also be assessed. The Order was addressed to the Secretary,Page 11
11
Police/P.A.C. Recruitment Board, Headquarters, Director
General of U.P. Police and directed the Secretary to make
arrangements in terms of the procedure set out in the said
Order.
12. Then comes the Government Letter dated 03.02.1999,
addressed to the Secretary, Police/P.A.C. Recruitment
Board, Headquarters, Director General of U.P. Police. This
Order directed the Secretary of Recruitment Board to begin
the Selection procedure for the 1478 seats of the rank of
Sub-Inspectors in Civil Police. We have already mentioned
that the number of seats was later reduced to 1176 (for
reasons already discussed) and there is no controversy on
that.
13. Then comes the Government Order dated 27.02.1999, again
addressed to the Secretary, Police/P.A.C. Recruitment
Board, Headquarters, Director General of U.P. Police. This
order very categorically provided that the Order dated
23.01.1999 is superseded by this Order and it set out a new
procedure for selection of the departmental candidates. ThePage 12
12
procedure provided by this order included a Preliminary
Written Examination (objective type), Physical Test and
Infantry Test for those who qualify the preliminary
examination, main written examination and then the
interview. It provided that all those who secured 40% marks
separately in each subject and 50% aggregate in the main
written examination would be called for the interview.
Further the Order provided that for the purpose of
interview/Personality Test and assessment of character
roll/service record, a selection panel shall be constituted
as per the requirement and its members shall be determined
keeping in mind the reservation policy of the Government.
It may be noted that the Order did not say that the
interview panel was to be constituted or was to function as
per the Regulation 445 discussed above. The order also did
not mention that the members of selection panel were to
give separate marks for each candidate.
14. Now analysing all these government orders and
regulations, we find that the procedure for selection of
departmental candidates for the promotion to the rank ofPage 13
13
Sub-inspectors was changed and was amended by every
Government Order. Learned counsel appearing for the
appellants cited the case of State of Rajasthan and Ors.
Vs. Basant Agrotech (India) Limited, (2013) 15 SCC 1,
contending the scope of delegated legislation vis-à-vis
parent legislation. However, in the present case, as
already mentioned, the regulations cannot be said to
prevail over the Government orders. Thus, the above cited
judgment is not relevant for our purpose, because
Regulations are merely compilation of previous G.Os.
Herein, the argument of implied repeal has been forwarded.
It is contended by the learned counsel for the State that
the prior Government Order was impliedly repealed every
time the new procedure was laid down. To examine this
argument, it will be expedient to set out the relevant
clauses from Regulation 445 and the Government Order dated
27.02.1999. Regulation 445(B)(4) reads as follows: “About 4
time candidates to the number of vacancies, in the marker
cadet should be called for interview according to the merit
from the aforesaid list.” The ‘aforesaid list’ mentioned in
Regulation 445(B)(4) refers to the merit list of the mainPage 14
14
written examination. Clause 8 in the Government Order dated
27.02.1999 reads: “The candidates securing 40% marks
separately in each subject and an aggregate 50% in all
subjects of main written examination shall be called for
interview.” On a plain reading of the above two provisions
the conflict is apparent. Both these provisions provide
different requirement for being called for the interview.
It was argued that Clause 8 of Government order did not
provide the qualification but only eligibility for a
candidate to come in the list of interview. However, this
contention cannot hold good since the word used in Clause 8
is “shall”. The rule makes it mandatory to call all those
who secure 40% marks separately in each subject and 50%
marks aggregate in the written examination to be called for
the interview. If both the above quoted rules were to
exist, it would create a contradictory situation.
Therefore, we find that Regulation 445 cannot be said to
prevail over or co-exist with the Government Order dated
27.02.1999, in respect of the number of candidates to be
called for interview. Page 15
15
15. Furthermore, we find that there is no rule of law as to
the ratio of number of vacancies to the number of
candidates for being called for interview; although it may
be a rule of prudence. This Court has found in Mohinder
Sain Garg Vs. State of Punjab and Ors., (1991) 1 SCC 662,
as also in Ashok Kumar Yadav Vs. State of Haryana, (1985) 4
SCC 417, that although it may be improper for the Selection
Committee to call such large number of candidates for
interview, but selection cannot be vitiated merely on this
ground if such an action is not tainted by mala fide or
oblique motive. In Mohinder Sain Garg (supra), this Court
gave one more reason not to accept this argument which
squarely applies to this case as well; this Court found
that the Respondents stood no chance of being called for
interview if candidates upto three times the number of
posts were called for interview. In the case on hand, on
this score, learned counsel for the State of Uttar Pradesh
has made a similar contention. Even the appellants herein
have not presented a case that had they been called for
interview, being only four times the number of vacancies,
they would have been short listed in that list. Thus, we
find this argument as a misplaced one.
16. Moreover, we would concur with the Division Bench on
one more point that the appellants had participated in the
process of interview and not challenged it till the results
were declared. There was a gap of almost four months
between the interview and declaration of result. However,
the appellants did not challenge it at that time. Thus, it
appears that only when the appellants found themselves to
be unsuccessful, they challenged the interview. This cannot
be allowed. The candidates cannot approbate and reprobate
at the same time. Either the candidates should not have
participated in the interview and challenged the procedure
or they should have challenged immediately after the
interviews were conducted. (See Vijendra Kumar Verma Vs.
Public Service Commission, Uttarakhand and Ors., (2011) 1
SCC 150, and K.H. Siraz Vs. High Court of Kerala and Ors.
(2006) 6 SCC 395)
17. Further, in our view, the Division Bench has correctly
dealt with the issue of sealed cover procedure. The processPage 17
17
of sealed cover procedure was devised to prevent any
prejudice being caused to the persons against whom the
disciplinary or criminal proceedings are pending. In the
present case, it is nobody's case that such persons are
prejudiced. Therefore, this contention does not hold any
merit in the present case.
18. Now, so far as the question of awarding consolidated
marks by all the panelists in the interview is concerned,
we are in agreement with the finding of the learned Single
Judge. The purpose of constituting multi member interview
panel is to remove the arbitrariness and ensure
objectivity. It is required by each member of the interview
panel to apply his/her own mind in giving marks to the
candidates. The best evidence of independent application of
mind by each panelist is that they awarded separate marks.
However, if only consolidated marks are awarded at the
interview, it becomes questionable, though not conclusive,
whether each panelist applied his/her own mind
independently. Having said that, we note that this Court
cautioned in Lila Dhar Vs. State of Rajasthan and Ors.,Page 18
18
(1981) 4 SCC 159, that it is not for the Courts to
re-determine the appropriate method of selection unless
obvious oblique motives are proved in a particular case.
Even in Lila Dhar's case (supra), the issue was regarding
the marks awarded by the Selection Committee as one
consolidated marks; the Court refused to interfere with the
appointment process on this ground. Only because the
panelists on the interview committee did not award separate
marks, cannot be a ground to quash the entire process.
Also, with respect to the legal argument that the
Government Order dated 03.02.1999 provided that the marks
must be separately awarded by interview panelists, we hold
that the Government Order dated 3.02.1999 was in
continuation of the Government Order dated 23.01.1999,
which was superseded expressly by Government Order dated
27.02.1999. The Government Order dated 27.02.1999 did not
provide any condition that the marks were to be separately
awarded by each interview panelist. Thus, it cannot be
argued that the Government did not follow the rules framed
by itself.Page 19
19
19. Further, it is a settled law that in cases like the
present one, where an Executive action of the State is
challenged, Court must tread with caution and not overstep
its limits. The interference by Court is warranted only
when there are oblique motives or there is miscarriage of
justice. In the present case, there is no oblique motive or
any miscarriage of justice warranting interference by this
Court. Hence, the appeals and the writ petition are
dismissed.
….....…..…………………..J
(Ranjan Gogoi)
….....…..……………………J
(Pinaki Chandra Ghose)
New Delhi;
May 11, 2015.
No comments:
Post a Comment