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Judgment
Sharad Kumar Sharma, J.
With the consent of the parties, both the writ petitions as are involving common facts and law, they are taken together and are being decided by this common judgment.
The petitioners claim that they are the permanent resident of State of Uttarakhand. The respondents had released a Notification dated 29th September, 2018 for conducting an open selection for Army Soldiers, the selection process which is nomenclatured as "Army Bharti Rally" was to be conducted at Haldwani from 24th November to 30th November, 2018 at military station, for the youths, who were the resident of district Bageshwar, Nainital, Udham Singh Nagar and Almora and they were supposed to submit their applications online. The procedure as prescribed for the said selection for "Soldier General Duty" was that, at the first stage, the candidate who thus applies has to undergo physical test, which particularly as per the Notification has to be held at the Rally site, i.e. Haldwani, herein for the present selection. The second stage i.e. after physical examination it entails conduct of "Medical Test", which according to Sub Clause (c)(1) of Clause 3 of the Notification dated 29th September, 2018, has to be conducted at the rally site by the Medical Board constituted at the rally site for the said purpose. Thereafter, under Sub-clause (c)(ii) of Clause 3 of the said Notification, a review medical is to be held for the candidates if needed who have been referred for second review after the medical test under Sub-clause (i) clause (c) of Clause 3, and who have to present themselves to the nominated MH / CH / BH on fifth day of the referral and report back to Medical Review Officer. It is this clause, which the petitioners press upon to invoke, submitting that since according to the statement made by the petitioner though without there being any material on record that since, the review medical is scheduled to be held on 22nd December, 2018, as such, they could be permitted to undergo the medical examination as per sub-clause (c)(i) of Clause 3, at the stage of review medical as per Sub-clause (c)(ii) of Clause 3 and, on conclusion of the said process of medical examination thereafter, the process of examination provides for holding of the written test, which would be conducted in relation to those candidates who have been found medically and physically fit, may be conducted for them.
The petitioners and such other candidates, who participated in the selection for physical examination, had produced their testimonials and as per clause of educational qualification, it was to be SSLC/Metric with 45% marks in aggregate and 33% in each subject. No aggregate percentage required for higher qualification i.e. 10+2 and above, however minimum 33% in each subject required in SSLC/Metric. In the testimonials, thus produced by the petitioners, the respondents have interpreted the High School certificate in the manner that they were supposed to secure 33% marks in all the subjects in which they have taken their high school examination and in an event if they have not secured 33% minimum marks in all the subjects, their candidature has to be rejected and thus accordingly it stood rejected by the communication dated 27th November, 2018. Alleging the rejection to be arbitrary and contrary to the notification dated 29.09.2018, some of the candidates had filed writ petitions even without challenging the order of rejection of their candidature. The Coordinate Bench of this Court in some of writ petitioners had passed an interim order, whereby, provisionally petitioners/candidates have been permitted to take the medical examination. One of such orders passed by the Coordinate Bench is quoted hereunder :-
"Mr. M.S. Rawat, Advocate, present for the petitioner.
Mr. Pankaj Chaturvedi, Advocate, present for the respondent nos. 1 & 2.
The petitioner has physically qualified the recruitment test but on the verification of the documents of the petitioner, though the petitioner has passed the requisite qualification, it was found that in one subject he passed with grace marks, and therefore, his case is not forwarded and he has not been permitted to appear in the medical examination.
Prima facie, the petitioner has a case.
Let the petitioner be provisionally permitted to appear in the medical test and written examination. However, the result of the petitioner shall not be declared till the next date of listing.
Issue notice to the respondent no.3.
Steps to be taken within a week.
Three weeks' time is granted to the respondents to file counter affidavit.
List this matter on 03.01.2019 in the daily cause list. Interim relief application (CLMA No.18584 of 2018) stands disposed.
Let a certified copy of this order be supplied today itself on payment of usual charges."
The reliance which has been placed by the learned counsel for the petitioner on the interim order passed by the coordinate Bench of this Court, it may not have a binding precedent for the reason being it is not laying down a ratio, and the interim orders would not bind the another coordinate Bench, until and unless there is an adjudication on merits by the coordinate Bench. Hence, the order of the coordinate Bench of this Court since not being a precedent, this Court declines to accept the argument of the learned counsel of the petitioner.
Thereafter, number of writ petitions came in for consideration before this Court, in which, identical interim orders have been passed. In the subsequent writ petitions and, in particular, the writ petitions which were filed or taken up after 3rd December, 2018, the stand has been taken by the counsel for the respondent that since the process of selection stands concluded, any interference by the High Court by way of interim order would entail holding of the physical examination under clause 3(c)(i) of notification would have to be taken afresh for those candidates who also have obtained interim order in their favour and that medical test after conclusion of medical examination under clause 3(c)(i) cannot be conducted at the centre which is contemplated in the notification i.e. to be at the Rally Centre and, consequently, to comply the order passed by the Court, the respondents would have to make altogether a new arrangement for physical examinations by constituting Medical Boards at other places, other than the centers which was otherwise supposed to take their medical examinations where selection process has concluded now as per the notification dated 29th September, 2018.
Considering the argument of the learned counsel for the respondents this Court is of the view that though there may be a certain similarity in the cause raised here, but, there is practical aspect of the matter which too cannot be ignored to be considered by this Court, to the effect that once the notification dated 29th September, 2018 contemplates holding of a medical examination at a particular center, it entails constitution of a medical board at that particular centre making all arrangement for that particular time period when selection is going and if that be so, under the shelter of the interim order, where respondents have been directed to take their medical examination, in fact, it has to be conducted in other centre other than one from which they were supposed to take their medical examination, otherwise, this is resulting into the difficulty in holding the selection process, and in disrupting the coordinated selection process.
This Court is in agreement with the stand taken by the respondents from the two view points, firstly, that when selection process once it happens to be of a higher level or magnitude involving massive arrangement, it has to be conducted strictly in terms of the norms, and candidate should be examined medically at the center only from where they have applied, because the Board constituted at other places may not be treated as to be a board for the other centre from where the candidate has applied and are to be permitted to take medical exams under the interim orders of this Court.
The arguments of the learned counsel for the petitioners is that even if it is presumed that the process of holding of the medical examination as contemplated under sub-clause (i) of clause (c) of Clause 3 at the rally site has exhausted and is over, but still since the review medical under sub clause (ii) of Clause (C) of Clause 3 is still open to be held under sub-clause (ii) of clause (c) of Clause 3 on 22nd December, 2018, onwards by way of review medical, hence, if the interim order is granted by this Court, the petitioners too can avail the benefit of participation in the medical examination for the stage as contemplated under sub-clause (i) of clause (c) of Clause 3, at the stage of review medical examination as contemplated under sub-clause (ii) of clause (c) of Clause 3. This latitude, at least, in the opinion of this Court, cannot be granted for couple of reasons. Clause 3(c)(i) and (ii) of the Rally Notification is extracted hereunder:
"3. Candidates will be tested as stated below :
(a) Physical Fitness Test (At Rally Site)...................
(b) Physical Measurement (At Rally Site) ................................
(c) Medical Test
(i) As per laid down medical standards at the Rally Site.
(ii) Unfit candidates will be referred to MH/CH/BH for specialist review. Candidates referred for specialist review should present themselves to the nominated MH/CH/BH on fifth day of the referral and report back to ARO for issue of Admit Card for CEE, in case declared FIT."
(d) Written Test through Common Entrance Examination (CEE).
There are reasons behind it. The parameters for permitting the candidates to take the review medical under sub-clause (ii) of clause (c) of Clause 3 is altogether contemplated a different act of permission for those candidates only who suffer from certain minor deficiencies in the first stage of the medical examination provided under sub-clause (i) of clause (c) of Clause 3. Hence, the conditions of sub-clause (ii) of clause (c) of Clause 3 cannot be diluted and interpreted as if it intended to meet the intention of sub-clause (i) of clause (c) of Clause 3. Thus, this Court is of the view that this cannot be permitted.
Secondly, under the Notification of 29.09.2018, which provided stages of selection under Clause 3, it had provided Clause (a) Physical Fitness Test, Clause (B) Physical Measurement, Clause (C) Medical Test (with which this Court is concerned) and thereafter Written Test under Clause 3(d). If Clause 3(c) is considered it was further divided in two stages of medical examination that is under clause (i) and (ii), both the clauses are the medical examinations contemplated at different stages of examination, its only after candidates undertakes medical examination under clause (c)(i) of Clause 3, which is general mandatory examination, its thereafter only that to meet a particular contingency medical examination under clause (ii) clause (c) of Clause 3 has to resorted to, for those candidates who have already undertaken medical examination under sub clause (i) of clause (c) of Clause 3. Clause 3(c)(ii) is altogether a different independent clause to be applied under different set of conditions and at different stage of selection.
Another argument of the learned counsel for the petitioners is that most of the petitioners who are appearing in the writ petitions, they have attained the age on the upper limit and would not be able to avail another opportunity of selection, and this selection process may be last opportunity available to them. Be that as it may. This opportunity being the last opportunity for the petitioners cannot be a reason to deviate from the specified process of selection and, in particular, in accordance with the norms of the notification dated 29th September, 2018. Being overage or being rendered incapacitated to participate in the selection, nowhere under law contemplates could be a valid reason to dilute the conditions of the selection process and that too on the request of such candidates who have otherwise derelicted in having recourse to their remedy at an appropriate time because, in the instant case admittedly the rejection has taken place on 27th November, 2018 and the process of medical examination has completed.
The argument of the learned counsel for the petitioners is that closure of process of selection for medical may not be taken as to be an impediment in granting an interim order to the petitioners in the likeway it has been granted to the other writ petitioners who approached the court earlier because in some of the cases, where the interim order was granted later, the respondents have permitted to hold the medical examination even by sending those candidates at the other rally center, for example at Faizabad in Uttar Pradesh. Sending of the candidates at Faizabad, Uttar Pradesh for medical examination is rather an argument which has been extended by the petitioners against themselves. This amounts to be an admission of the fact that the selection of the candidates who were otherwise under the purview of the interim order, in this rally centre has closed and that is why, the respondents in order to honour the order of the Court had to make alternative arrangement by sending them to other distant centers. If this is permitted to continue, invariably in all the petitions, in relation to those candidates who approached the Court belatedly, it would be creating absolutely a chaotic situation which will prevail for the respondents, who would be forced to adhere to the order passed by this Court by sending the candidates to the other centre which is contrary to the terms of the notification dated 29th September, 2018. .
Hence, this Court is of the considered view that any such a latitude at this stage after the closure of the stage of medical examination at the centre from which they were otherwise suppose to take examination, if it is permitted by the Writ Courts under the interim orders, in its exercises of equitable jurisdiction in the given circumstances would create chaos and disturb the entire selection process. This Court is of the view that equity has to be considered in the light of the administrative difficulty of the respondents also who have to undertake the selection process at various centers at a large scale throughout the country.
Consequently, this Court is of the view that the writ petitions lack merit and are accordingly dismissed.
There will be no order as to costs.