D. Issac vs The Chairman, Tamil Nadu Uniformed Services Recruitment Board, The Director General of Police, The District Collector and A.K. Jain, Chairman, Tamil Nadu Uniformed Services Recruitment Board

M. Venugopal, J.—The Petitioner has filed this writ petition seeking a Writ of Certiorarified Mandamus, to call for the records pertaining to

the order passed by the first Respondent in his proceedings Rc. No. A1/2626/2006 dated 09.10.2007 and quash the same and further direct the

first Respondent to recount the correct answers and award mark accordingly for the Written Test held on 05.10.2007 in respect of Code No.

2801096 of the Petitioner.

The Petitioner is an Ex-service man. He joined as a Gun Operator in the military in the year 1990. After completion of 15 years of service, he

has been relieved in the year 2005. He has been conferred with all benefits available to the Ex-service man. He has acquired M.A. degree

qualification.

The second Respondent/Director General of Police, Chennai - 4, has called for applications in regard to the post of Sub Inspector of Police in

the year 2006 and he has applied for the same. He appeared before the first Respondent/Chairman, Tamil Nadu Uniformed Services Recruitment

Board, Chennai and his certificates have been verified. His chest measurement has been taken and his height has been measured as 167.9 cm

which is short of the required height of 168 cm. In fact, his actual height is 168.5 cm.

The Petitioner''s height in the Army certificate is shown as 168 cm. The first Respondent/Board has not taken his height measurement properly.

He has made a request to take his height measurement again. As per Army code, whenever any military personnel or Ex-service men have any

grievance, only a representation is to be made to the District Collector. As such, he has made a representation to the third Respondent/District

Collector, Tirunelveli, on 02.04.2007.

The Petitioner has also applied for the Police Constable Selection for which the minimum eligible height is 168 cm. He has appeared for the said

selection on 30.05.2007 and the first Respondent/Board has measured his height as 168.5 cm. He has been asked to appear for written test on

29.07.2007.

The stand of the Petitioner is that the first Respondent/Board has found his height as 168.5 cm for the Police Constable Selection and he has

filed a writ petition in W.P. No. 20987 of 2007 before this Court since his proper height measurement has not been taken and this Court on

11.07.2007 has directed the first Respondent/Board to allow him to take part in the process of selection, such as, written test, oral test and

medical test to consider him for the post of Sub Inspector of Police. Also, it has been made clear in the said order passed by this Court that no

vindictive action shall be taken as against the Petitioner during his written test, etc.

The learned Counsel for the Petitioner submits that the Petitioner has been directed by the first Respondent/Board to appear for the written test

on 05.10.2007 and in the written test, he has attended all the 70 objective type questions which have been answered correctly, but the Petitioner

has been surprised to receive the impugned communication from the first Respondent/Board dated 09.10.2007 that he has secured 30 marks out

of 70 marks in the written test held on 05.10.2007 and that he has failed to secure the minimum qualifying marks in the written test which is 35

marks.

It is the case of the Petitioner that the first Respondent/Board deliberately has failed him in the written test. Also, when this Court has been

pleased to pass an order, the Dhinakaran Daily (Tamil Newspaper) exposes the conduct of the selection in the title ""Malpractice in Sub Inspector

of Police Selection"". Because of the inconsistent measurements in height for the Police Constable Selection as 168.5 cm and for the Sub Inspector

of Police Selection as 167.9 cm, this Court has directed to measure his height in the presence of an Advocate Commissioner duly appointed by

this Court, the first Respondent/Board felt it as an insult and indictness to it.

According to the Petitioner, before entering to the written examination hall where he has taken the examination, four persons have taken him to a

room and threatened him. In the hall where he has taken the examination, a lady member and another have been in mufti (whose names the

Petitioner is not able to know) and that he understands that they are holding higher office and they threatened him with dire consequences as to

how he will get through the examination and even if the Petitioner gets through the examination, there are other tests like, viva voce and medical

test.

The contention of the learned Counsel for the Petitioner is that the impugned order dated 09.10.2007 of the first Respondent has been passed

deliberately with a mala fide intention to see that the Petitioner is failed.

In response, the learned Government Advocate for the Respondents submits that the Petitioner filed W.P. No. 20987 of 2007 praying for re-

measurement of his height as he is said to have possessed of 168.5 cm and Thiru.G. Bala, Advocate Commissioner appointed by this Court along

with his Junior Advocate and the Petitioner have come to the Tamil Nadu Uniformed Services Recruitment Board about 01.30 p.m on 06.07.2007

and measured the height of the Petitioner in the presence of the Inspector General of Police/Member Secretary, Tamil Nadu Uniformed Services

Recruitment Board, Chennai and the said Advocate Commissioner, Thiru.G. Bala, has found the height measurement of the Petitioner as 167.9

cm. However, the Advocate Commissioner has filed a report to this Court that the height measurement of the Petitioner is 168 cm. Furthermore, in

view of the conflicting versions of the actual height of the Petitioner, re-measurement has been done as per the orders of this Court and the

measurement has been recorded as 168.2 cm and that this Court has pleased to direct to allow the Petitioner to write the written test.

The learned Government Advocate contends that the written test has been conducted on 05.10.2007 at 11.00 a.m at the Tamil Nadu

Uniformed Services Recruitment Board, Chennai, in respect of the Petitioner Code No. 2801096 for recruitment of Sub Inspector of Police

(MandW) 2006 as per the order passed by this Court in W.P. No. 20987 of 2007 and that the Petitioner has secured 30 marks out of 70 marks

in the written test held on 05.10.2007.

The prime contention of the learned Government Advocate for the Respondents is that the Petitioner has failed to qualify for further process of

selection in regard to the recruitment of the Sub Inspector of Police (MandW) 2006, since he has failed to secure the minimum qualifying marks in

the written test which is 35 marks and further that, the answer sheets of the Petitioner along with the question paper and key answers have been

handed over to this Court which will point out that the Petitioner has failed in the written test and only with a view to cover up his miserable failure

to secure the minimum marks, the Petitioner has made baseless allegations in the affidavit.

Earlier, this Court in M.P.(MD) No. 1 of 2008 in W.P(MD) No. 552 of 2008, has directed the first Respondent/the Chairman, Tamil Nadu

Uniformed Services Recruitment Board, Chennai, to produce the answer book of the Petitioner in the written test held on 05.10.2007 in respect of

Code No. 2801096 on 31.01.2008 and directed the matter to be listed on 31.01.2008.

Subsequently, the Petitioner filed a Contempt Petition(MD) No. 184 of 2010 and this Court on 19.11.2010 has recorded the statement of the

learned Government Advocate that ''he has brought the answer book of the Petitioner in the written test held on 05.10.2007 in respect of Code

No. 2801096 in a sealed cover and further, he has undertaken to produce the same before the Registry on that day itself and accordingly, this

Court closed the contempt petition.

At this juncture, it is to be pointed out that this Court has pertinently perused (i) Question Paper, (ii) Key Answers and (iii) OMR Answer

Sheet in respect of the Petitioner. On perusal of the same, it transpires that the Petitioner has secured only 30 marks out of 70 marks, whereas the

minimum qualifying marks to be secured in the written test by a candidate in regard to the recruitment of the Sub Inspector of Police (MandW)

2006, is 35 marks. Therefore, the Petitioner has not secured the minimum qualifying marks viz., 35 marks, in the written test held on 05.10.2007.

As such, the Petitioner has failed to qualify himself for further process of selection in regard to the recruitment of the Sub Inspector of Police

(MandW) 2006.

As far as the measurement of height of the Petitioner is concerned, the same has been conclusively recorded as 168.2 cm as per the orders of

this Court.

Coming to the averments/allegations of the Petitioner that ''the moment, he entered the written examination hall, before entering to the hall, four

persons have taken him to a room and threatened him and in the said hall, where he has taken the examination, a lady member and another person

have been in mufti and that he is not able to get their names, but they are holding higher office and they have instructed to see that the Petitioner is

made fail by the Chairman of the Tamil Nadu Uniformed Services Recruitment Board, Chennai, etc., this Court points out that the same have not

been established to the subjective satisfaction/judicial conscience of this Court and as such, this Court negatives the plea of the Petitioner in this

regard.

At this stage, it is not out of place for this Court to point out that mere allegations/averments raising suspicions in the affidavit filed by the

Petitioner will not partake the form of proof as required by law.

It is an axiomatic principle in law that the burden of proving a fact rests on a party who substantially and materially asserts the affirmative of the

issue and not upon the party who denies it; for a negative is usually incapable of proof. This rule is derived from Roman law which is supportable

not only on the basis of fairness, but also upon that of a greater practicable difficulty which is involved in proving a negative than in proving an

affirmative as per Halsbury 3rd Edition, Vol.15, para 488. However, there is a distinction between a ''Burden of Proof'' and ''Onus of Proof''. The

''Burden of Proof'' lies on a person who is to prove the fact and which never shifts. But, the ''Onus of Proof'' shifts. Such shifting of the ''Onus of

Proof'' is a continuous process in the evaluation of evidence, in the considered opinion of this Court. No wonder, a presumption is not evidence or

proof, as opined by this Court.

Also, no one prevented the Petitioner from answering the questions with correct answers and as such, the plea of the Petitioner that the

Respondents have deliberately made him to fail in the written test held on 05.10.2007 is unworthy of acceptance and the same is outrightly

rejected.

Suffice it for this Court to point out that the Petitioner has only secured 30 marks out of 70 marks in the written test held on 05.10.2007 in

regard to the recruitment of the Sub Inspector of Police (MandW) 2006, and indeed, has failed to secure the minimum qualifying marks of 35 in

the written test.

On a careful consideration of respective contentions and also on a careful scrutiny/perusal of the (i) Question Paper, (ii) Key Answers and (iii)

OMR Answer Sheet in respect of the Petitioner and moreover, this Court taking note of the overall assessment of the facts and circumstances of

the present case in a conspectus fashion, comes to an inevitable conclusion that the impugned order dated 09.10.2007 passed by the first

Respondent/the Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai, does not suffer from any material irregularity or patent

illegality warranting any interference in the hands of this Court. Consequently, the writ petition fails.

In the result, this writ petition is dismissed leaving the parties to bear their own costs. Connected Miscellaneous Petition is also dismissed.