AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
142 paragraphs · 3,165 wordsLok Pal Singh, J
1) This writ petition, under Article 226 of the Constitution of India, has been filed by the petitioner seeking following reliefs:
i) Issue a writ, order or direction, particularly a writ in the nature of certiorari quashing the impugned order dated 25.01.2018, passed by the office of Inspector General of Police, Headquarters, Dehradun (Annexure no. 3 to the writ petition).
ii) Issue a writ, order or direction, particularly a writ in the nature of mandamus directing the respondents to give appointment to the petitioner on the basis of marks obtained by the petitioner in the written examination and in the interview conducted by the respondents pursuant to selection process conducted on the basis of the advertisement duly advertised in the year 2001.
iii) Issue a writ, order or direction, particularly a writ in the nature of mandamus directing the respondents to give appointment to the petitioner as per his seniority with effect from the date of appointment of other successful candidates who were declared successful in the selection process.
iv) to pass an order to the effect that stern action be taken in terms of a provision for appropriate compensation in favour of the petitioner as per law.
2) Brief facts giving rise to the present petition are that an advertisement was issued on the basis of letter issued from the office of the Director General (P), inviting applications for direct recruitment of Sub Inspectors Civil Police / Platoon Commander P.A.C. 2001. The petitioner belongs to General category. He is a graduate and a dependant of freedom fighter. He is fully qualified for being appointed to the post so advertised. He applied for the same well within time seeking benefit or reservation provided for the ward of freedom fighters. The petitioner was allotted roll no. 32215. In pursuance of the terms and conditions of the advertisement, petitioner appeared in a written examination held on 07.04.2002. The result was published in the daily newspaper "Dainik Jagran" on 23.04.2002. The petitioner was declared successful in the written examination and was called for physical fitness examination. He was declared successful in physical fitness examination also.
3) After the physical fitness examination, an interview Board was constituted under the Chairmanship of Additional Director General of Police. The petitioner appeared before the Interview Board.
4) After interview, the respondent declared the result without conducting the medical test of the candidates and in the said list, the name of the petitioner did not find place. It is alleged that in the list of the successful candidates many irregularities and illegalities were there. The candidates, who had not even qualified the written examination, were declared successful. Some of the candidates, who did not qualify the physical test, were also declared successful. Apart from this, there were many irregularities committed by the selection board, declaring the candidates of General category successful showing them to be 'other backward class' candidates.
5) It is further alleged that no merit list was prepared or circulated by the respondents despite the fact that there was a specific clause in the advertisement that the combined merit list shall be prepared on the basis of total marks obtained by the candidates in written examination & interview and the merit list shall be prepared on the basis of total marks obtained by the candidates.
6) Against the aforesaid act of the respondents, a bunch of writ petitions were filed before this Court by several candidates, including the petitioner. The writ petition filed by the petitioner was numbered as writ petition no. 1684 (S/S) of 2006 (old no. 718 of 2002 (M/B), Jitendra Joshi Vs State of Uttaranchal and others. The aforesaid writ petitions were dismissed by this Hon'ble Court vide judgment and order dated 23.07.2007.
7) Against the judgment and order dated 23.07.2007, the petitioner preferred a Special Appeal no. 132 of 2007, Jitendra Joshi Vs State of Uttarakhand and others. Said Special Appeal was disposed of vide judgment and order dated 14.12.2009, with liberty to the petitioner to move a representation, placing facts and material before the official respondents within two weeks, along with a certified copy of the order. The Court further directed that, in case, such a representation is made by the petitioner within the time stipulated, the respondent no. 1, i.e., the Secretary to Government, Department of Home, Government of Uttarakhand shall examine the same and take a decision thereon within two months of receipt of the said representation by passing a well reasoned and speaking order.
8) In compliance of the direction of this Court, the petitioner preferred a detailed representation dated 21.12.2009 along with relevant documents. The aforesaid representation of the petitioner was decided by the Principal Secretary, Department of Home, Government of Uttarakhand, Dehradun vide order dated 24.02.2010, whereby the representation of the petitioner was dismissed.
9) Before proceeding further, it is relevant to mention here the chart, supplied by the petitioner, which will help this Court in appreciating the controversy involved in the present writ petition:
Sl.
No.
Roll No.
Name of the candidate
Marks Obtained
20
32990
Naresh Chandra Durgapal
555
102
29390
Mahendra Pal Singh
530
384
24891
Rajiv Rawat
492
385
33074
Manish Sharma
492
463
16283
Sushil Rawat
484
137
36674
Sweta Mahra
445
473
32215
Jitendra Joshi
483
10) The present writ petition has a chequered history. Since the case of the petitioner was not considered, then the petitioner was constrained to file these writ petitions, viz., WPSS 1684 of 2006 [old no. 718 of 2002 (M/B)] and WPSS no. 442 of 2010. A coordinate Bench of this Court finally disposed of the writ petition no. 442 of 2010 (S/S) vide judgment and order dated 14.12.2017 with the following directions:
"Respondents are directed to consider the candidature of the present writ petitioner, provided he was next in the list (as shown in the chart herein above), the persons between Naresh Chandra and present writ petitioner have already been given appointment and the vacancy of Naresh Chandra Durgapal has not been carried forward to any subsequent year."
11) Despite the directions issued by this Court, when the case of the petitioner was not considered, then the petitioner was constrained to institute a contempt petition against the respondents. The petitioner belongs to General category, a dependant of freedom fighter and had sought his appointment under category of dependants of freedom fighters (horizontal reservation). Against a total 253 posts advertised, 06 posts of Sub Inspector of Police ought to be filed under the horizontal reservation.
12) Indisputably, 07 candidates under horizontal category secured the marks as under:
Sl. no.
Roll no.
Name
Marks of written exams (600)
35 Marks
Personality
40
Total marks obtained
675
Result / Note
Education 10
Sports
10
NCC
10
1
29390
Mahendra
Pal Singh
492
4
3
-
31
530
Selected
2
32215
Jitendra Joshi
464
2
-
10
23
499
Unsuccessful (applicant)
4
24891
Rajiv Rawat
456
4
-
6
26
492
Selected
5
33074
Manish Sharma
450
4
-
-
38
492
Selected
6
16283
Sushil Rawat
452
4
-
-
22
478
Selected
7
36674
Km. Sweta Mahar
416
4
-
-
25
445
Selected
13) The petitioner has been awarded 07 marks towards personality test out of 40 marks which comes to 17% marks. Though the petitioner has secured second position out of 07 candidates in written examination, but he has been awarded only 07 marks towards personality test. Earlier Naresh Chandra Durgapal was shown to be selected having considered his higher merit and petitioner was next to him in the merit / selection list, but on information received under the Right to Information Act, it has been stated that Naresh Chandra Durgapal was not selected.
14) Besides the allegations made by the petitioner that the Interview Board has awarded lesser marks to him i.e. only 07 towards personality test out of 40 marks, whereof other candidates namely, Mahendra Pal Singh, Rajiv Rawat, Manish Sharma, Sushil Rawat and Km. Sweta Mehar were granted 31, 26, 38, 22 and 25 marks respectively. Last male candidate under horizontal reservation was Sushil Rawat, who secured 484 marks, whereof petitioner secured 483 marks. So far as Km. Sweta Mehar is concerned she secured only 445 marks and she has been selected, whereof the petitioner who has secured 483 marks under horizontal reservation has been declared unsuccessful.
15) This Court in earlier round of litigation has considered all the illegalities / irregularities and directed the respondent authorities to take a decision on the representation, but the respondent authorities did not consider the representation of the petitioner in proper perspective and dismissed the same by impugned order dated 25.01.2018 on the ground that Km. Sweta Mehar is a dependant of freedom fighter; she secured 455 marks and for women category, 25 posts were reserved, and against 01 post of women category & dependant of freedom fighter Km. Sweta Mehar has been selected. It was further stated that the petitioner has no concern with the appointment of Km. Sweta Mehar. It is also stated in the rejection order that while dismissing the representation of the petitioner the respondents have placed reliance on the judgment rendered by Hon'ble Apex Court in Rakhi Ray and others Vs High Court of Delhi and others, (2010) 2 SCC 637, wherein it has been held that it will not be in the interest of justice to appoint a person on the other vacancies compared to the vacancies advertised. Thus, it is not possible to give appointment to the petitioner.
16) Perusal of the impugned order dated 25.01.2018 would reveal that Km. Sweta Mehar has been appointed under the horizontal category. A horizontal reservation is a reservation available for the dependants of freedom fighters and is a special category reservation. The benefit of horizontal reservation has to be provided to the dependants of freedom fighters irrespective of their caste, religion and gender. Thus a dependant of freedom fighter ought to have been considered as a candidate covered under the said reservation, but the respondent authorities have given appointment to Km. Sweta Mehar under horizontal reservation who secured 445 marks, whereof the petitioner secured 483 marks.
17) A Division Bench of this Court on 02.09.2019 having considered a catena of judgments dismissed the review application no. 50 of 2019 in Writ Petition no. 392 of 2017 (S/B) in the case of Sudhir Kumar Vs State of Uttarakhand and others. Relevant paragraphs of said judgment are excerpted hereunder:
Review literally, and even judicially, means re-examination or reconsideration. The basic philosophy inherent in it is the universal acceptance of human fallibility. Yet, in the realm of law, Courts lean strongly in favour of the finality of a decision - legally and properly made. Exceptions have been carved out to judicially correct errors which result in miscarriage of justice. (P. Neelakanteswaramma & others vs. Uppari Muthamma & others, 1998 (1) ALD 234 ; Shivdeo vs. State of Punjab, AIR 1963 SC 1909). An application for review would lie, inter alia, when the order suffers from an error apparent on the face of the record, and permitting the same to continue would lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. The review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that, once a judgment is signed or pronounced, it should not be altered. Review is not an appeal in disguise. (Inderchand Jain vs. Motilal, (2009) 14 SCC 663; Rajendra Kumar vs. Rambai (2007) 15 SCC 513 and Lily Thomas, AIR 2000 SC 1650).
An error, which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court exercising its power of review. In the exercise of the review jurisdiction, it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter alone can be corrected by the exercise of the review jurisdiction. (Parsion Devi vs. Sumitri Devi, (1997) 8 SCC 715; Mudiki Bhimesh Nanda, [2005 (5) ALT 41 (D.B.)]. An error which is not self evident, and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying exercise of the power of review. A review petition, it must be remembered, has a limited purpose. (Haridas Das vs. Usha Rani Banik, (2006) 4 SCC 78).
A review lies only for correction of a patent error. (Thungabhadra Industries vs. Govt. of A.P. AIR 1964 SC 1372; Mudiki Bhimesh Nanda; Delhi Administration v. Gurdip Singh Uban, (2000) 7 SCC 296). The error contemplated under the rule is not an error which is to be fished out and searched. It must be an error of inadvertence. (Lily Thomas). It must be an error which must strike one merely on looking at the record and not one which requires a long drawn process of reasoning on points where there may conceivably be two opinions. (Meera Bhanja (1995) 1 SCC 170; Mudiki Bhimesh Nanda; Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137). There can be no review unless the Court is satisfied that there exists a material error manifest on the face of the earlier order resulting in miscarriage of justice. (Avtar Singh v. Union of India AIR 1980 SC 2041; P. Neelakanteswaramma).
An error, which necessitates review, should be something more than a mere error and it must be one which must be manifest on the face of the record. If the error is so apparent that, without further investigation or enquiry, only one conclusion can be drawn in favour 37 of the petitioner, a review will lie. If the issue can be decided just by a perusal of the records, and if it is manifest, it can be set right by reviewing the order. If the judgment/order is vitiated by an apparent error or it is a palpable wrong, and if the error is self evident, review is permissible. (S. Bagirathi Ammal vs. Palani Roman Catholic Mission (2009) 10 SCC 464). A review proceeding cannot be equated with the original hearing of the case and the finality of the judgment will be reconsidered only where a glaring omission or patent mistake or like grave error has crept in by judicial fallibility. (Northern India Caterers vd. Lt. Governor Delhi AIR 1980 SC 674; Mudiki Bhimesh Nanda). We see no reason, therefore, to undertake the task of examining the provisions of the 1993 Act again in the present review petition, for that would amount to a rehearing of the Writ Petition itself, which is impermissible.
Viewed from any angle, the order under review does not suffer from any error, much less an error apparent on the face of the record, necessitating exercise of our review jurisdiction. The review application fails, and is, accordingly, dismissed. No costs."
18) A perusal of the record would reveal that the respondents have acted arbitrarily in awarding the marks in personality test, ignoring the fact that the petitioners has secured second highest marks in the written examination and out of 07 candidates when he was in second position in written examination has been put on the selection list just to disqualify him. It appears that the arbitrary action of the respondents in awarding only 07 marks on account of personality to the petitioner which comes to 17% per cent only, whereof other candidates have been awarded 55%, apparently seems to be discriminatory and an act just to eliminate the petitioner from the selection process. The impugned order further shows that the respondents are reluctant to appoint the petitioner and have passed the impugned order on surmises and conjectures without having considered the directions issued by this Court in its order dated 14.12.2017, as such, the respondents have committed illegality in rejecting the representation of the petitioner (by impugned order dated 25.01.2018). Therefore, the impugned order dated 25.01.2018 is unsustainable in the eyes of law.
19) In so far as awarding of 07 marks to the petitioner in the personality test out of 40 marks which comes to only 17 per cent is concerned, the same appears to be unreasonable. If this fact is ignored by this Court it is evidently clear that in the same reservation category for the dependents of freedom fighters which is a horizontal reservation, one of the candidates Km. Sweta Mehar, who has secured only 445 marks, has been given appointment under the same category whereof case of the petitioner, who had secured 483 marks, has been deliberately ignored. Since in the same category a candidate who secured only 445 marks have been given appointment, the petitioner who secured higher marks in the selection process is also entitled to get appointment. The petitioner should not have made to suffer on account of illegality committed by the respondents in giving appointment to Km. Sweta Mehar. This act on the part of the respondent authorities is a glaring example of violation of Article 14 and 16 of the Constitution of India.
20) It is settled position in law that no one should be made to suffer for the illegal acts of others. Apparently it is proved on record that the respondents have acted in arbitrary and illegal manner in giving appointment to Km. Sweta Mehar and in denying the appointment to the petitioner on the post of Sub Inspector of police. The respondents have no authority to take the benefit of the judgment of Rakhi Ray's case (supra). This case seems to be a glaring example of arrogance and highhandedness of the Government officials.
21) In view of the foregoing reasons, the impugned order dated 25.01.2018 is quashed. Mandamus is issued to the respondents to appoint the petitioner on the post of Sub Inspector of police as per his merit, as he secured 483 marks in the merit list and the candidate who secured lesser marks to the petitioner has been appointed under the horizontal category. In case, such post is not available due to the illegal appointment done by the respondents, the respondents shall either correct their marks or create a supernumerary post for the petitioner. Entire exercise has to be completed within three months from the date of receipt of certified copy of this order.
22) Though this Court is of the view that the act of the respondents is illegal & arbitrary and the petitioner has been deprived of his legal right since 23.04.2002 and wants to impose exemplary cost on the respondents, but on the request of learned counsel for the State, this Court has restrained itself with great difficulty in not doing so.