Krishna Mohan Misra and Others vs State of U.P.and Others

Rakesh Sharma, J.—The abovenoted writ petitions involve common questions of law, hence they have been heard together and are being disposed of by a common judgment.

Heard Sri D.R.Misra, learned counsel for the petitioners and learned Standing counsel appearing for the opposite parties.

It has been brought in the notice of the court that in Writ Petition No.4281 of 1998 (S/S), petitioners 1, 2, 3, 4, 5, 7 and 9 only are contesting the writ petition and no one is holding brief for petitioners 6, 8 and 10.

The petitioners have challenged the selection of Provincial Armed Constabulary (hereinafter referred to as PAC) constables, which was held in district Gonda by a Selection Board for recruiting PAC constables. The petitioners have sought their appointment as constables highlighting the fact that all of them were duly selected candidates and were found medically fit for being sent for training and thereafter deserved to be appointed on regular basis.

The brief facts of the case are as under:

In PAC department, 375 vacancies of the posts of constables were advertised. Out of those 175 vacancies, 88 posts were allocated for general category candidates, 101 for Other Backward Classes (O.B.Cs.), 78 for Scheduled Castes (S.Cs.) candidates and 8 for Scheduled Tribes (S.Ts.) candidates. A Selection Board was constituted and selection process was held in district Gonda and at other places. The physical test of all category candidates including the petitioners was held from 25.7.1998 to 8.8.1998 and after making scrutiny, all the candidates, who had passed physical test, were allotted chest numbers. The petitioners had also passed physical test with highest marks. The Selection Board fixed the criteria for appointment/selection under the Police Regulations. 100 marks were allotted for physical test; written test was allotted for 80 marks and interview for 20 marks. According to the opposite parties, the total marks were 200. The physical test marks were divided in five parts, as under:

The Cricket ball throw 20 marks

The long jump 20 marks

Beam/chinning up 20 marks

Dand Baithak 20 marks

Running 20 marks

The abovenoted physical test was further divided in subparts for providing the marks, as under:

Cricket ball through marks 10 12 15 18 20

Cricket ball through length in metre 61 65 70 75 81

Long Jump marks 10 12 15 18 20

Long Jump (in feet) 14 15 16 17 18

Beam/chining up marks 10 12 15 18 20

7 9 11 13 14

Dand Baithak marks 10 12 14 18 20

Number and timing (2.5 minute) 50 70 80 90 100 60

Running marks (the running

distance was the 5 km. 10 14 16 18 20

Running timing in minutes 28 26 25 24 21 30

Learned counsel for the petitioners has further submitted that the opposite parties provided marks of physical test to the petitioners on the basis of prescribed form in the presence of the petitioners. The petitioners obtained the highest marks in physical test by the Selection Board. The candidates, who had passed physical test including the petitioners, had appeared in the written test, which was held on 20.8.1998 and its result was declared on 28.8.1998. All the petitioners had passed the written test with the highest marks. Thereafter they appeared in the interview. The petitioners qualified in the interview and they were sent for medical examination. All the petitioners were declared medically fit and the result was declared on 6.9.1998. According to the petitioners, separate selectlists of general category candidates and candidates belonging to OBCs and S.Cs and S.Ts. were prepared. Out of 180 posts of the general category, 77 were filled by candidates belonging to general category, 90 by candidates of OBCs, 19 by candidates of SCs and 2 by the candidates of STs. Another select list of OBCs was declared, in which 101 candidates of the category of OBCs were enlisted.

Yet another select list of SC/ST candidates was declared, in which 27 candidates of SCs and 6 candidates of STs were declared selected. As per petitioners'' counsel, there were 78 posts of reserved category meant for SC candidates and 8 posts for STs but only 46 candidates of SCs and 8 Candidates of STs appeared in the said selection and 27 candiates of SCs out of 46 have been taken in the reserve category of SCs. According to the learned counsel for the petitioners, from reserve category of SCs, the candidates cannot be selected in general category.

Sri D.R. Misra, Learned counsel for the petitioners has further submitted that the entire selection was done by the selection committee with the sole mala fide intention of excluding candidates of general category. The authorities were acting in favour of the candidates, who belonged to OBC, SC and ST categories. This action was highly illegal, mala fide, arbitrary, discriminatory and violative of mandatory provisions of Articles 14 and 16 of the Constitution of India. The whole selection proceeding is vitiated and deserves to be quashed.

Learned counsel for the petitioner has submitted that the Selection Board has acted with predetermined mind and committed gross illegalities and irregularities while making selection. The Selection Board consisted of Sri Prem Chand Meena, Commandant, 30th Vahini, P.A.C. Gonda, Chairman of the Board who belongs to S.T., Sri Virendra Kumar Yadav, Assistant Commandant, 37th Vahini P.A.C., Kanpur Nagar, who belongs to O.B.Cs., Sri Gaya Lal, Assistant Commandant, 10th Vahini P.A.C., Barabani, who is also S.C. and Sri Kasi Saheb, Additional Superintendent of Police, Gorakhpur, G.R.P., who belongs to minority class. One Sri Rajendra Singh, Additional Superintendent of Police, Hardoi was kept in the Board who belongs to general category, but he did not participate in the selection proceedings. He had only signed the proceedings at last. Sri Pradeep Kumar Singh and other 12 persons obtained 136 marks. According to the record, only Lallan Yadav was the OBC candidate, rest of them were general category candidates. Sri Lallan Yadav has been selected in general category and other general category candidates were ousted. Thus the reservation has exceeded more than 50%, which is not permissible in law as per decisions of the Hon''ble Supreme Court of India.

It has been urged by the learned counsel for the petitioner that near about 50 candidates of reserve category have taken the benefit of age relaxation (as reserve category candidates) and they have been selected against the general category quota, which is not permissible under law. Once a person applies under the reserve category quota and is given the advantage as reserve category candidate, he cannot be adjusted in the general category.

The petitioners have been declared medically fit by the opposite parties and according to the U.P. Police Regulations, when the petitioners have been medically examined by the Civil Surgeon and declared fit, then it is obligatory on the part of opposite parties to send the petitioners for training and issue appointment letters to them. In this regard, the learned counsel for the petitioners has referred to paras 412, 413, 418 and 419 of the Police Regulations.

Learned Standing Counsel has opposed the writ petitions and submitted that the selection was completed in accordance with law and the relevant Government Orders issued from time to time and the executive instructions have been followed. The names of the petitioners have not been shown in the final select list because they could not obtain the requisite marks and the O.B.Cs., S.Cs. and S.Ts. candidates had obtained higher marks in comparison to the petitioners, hence they have been selected in the merit list of general category candidates.

Learned Standing Counsel has further submitted that the petitioners were medically examined and declared fit by the Medical Officer. Thereafter they appeared before the Selection Board for interview and the final select list was prepared on the basis of their merit and the petitioners'' names could not be shown in the final select list because they were below in the merit list.

It has also been submitted on behalf of the opposite parties that the executive direction had been issued and it has been specifically provided in the directions that before the interview, the candidates shall be sent for medical test and after being found fit in medical test, they may be called for interview and thereafter the final select list be issued. The copy of said executive directions has been placed before the Court alongwith record.

Learned Standing Counsel contended that the reserve category candidates had been selected in the general category quota according to the Government Order dated 25.3.1994. The version of the opposite parties has been set out in paras 8 and 14 of the counter affidavit. The relevant portion of the government Order dated 25.3.1994 is as under:

Learned Standing counsel has further submitted that the candidates of reserve category quota, who have taken the age relaxation and obtained the highest marks in the test, they cannot be adjusted under the reserve category quota and shall be treated as general category candidates on the basis of marks obtained by them and they can be accommodated in general category quota according to the Government Order dated 25.3.1994. It has also been argued on behalf of the State that if it is presumed that the petitioners are the successful candidates, even though they do not acquire indefeasible right to be appointed on the basis of the selection.

As per learned Standing Counsel, the writ petitions are misconceived and deserve to be dismissed.

In rejoinder, learned counsel for the petitioners has submitted that the opposite parties have admitted the fact that the petitioners were medically examined and declared fit by the Civil Surgeon. The opposite parties also admitted that several persons of reserve category, who had taken the benefit of age relaxation, had been adjusted in the general category quota on the basis of marks obtained by them. According to learned counsel for the petitioners, the law regarding the reservation is very clear and the directions of the Government have been misinterpreted by the opposite parties in making the impugned selection and appointments.

Learned counsel for the petitioners Sri D.R. Misra has further submitted that the petitioners are the selected candidates as per admitted facts of the opposite parties. They had been medically examined and were declared successful. Acording to the learned counsel, paras 412, 413, 418 and 419 of the Police Regulations are clear on this point. The relevant portions of said paras 412, 413, 418 and 419 of the Police Regulations are quoted below:

�Para 412 Because a candidate for recruitment is sent to the Civil Surgeon for medical examination his height and chest be accurately taken before the reserve inspector. The candidate must be measured round his bare chest with his arms raised.

No candidate shall be enlisted without a health certificate in form No.29 signed by the Civil Surgeon of the district. Every candidate must also before he is enlisted sign an agreement in the following form:

I�����son of�����..of village���.thana����.enlisted as a constable in the Uttar Pradesh Force I will serve for two years in the said Uttar Pradesh Police from the date of joining the force, unless I am discharged or certified by a Civil Surgeon to be unfit for such service. If I resign before the expiry of the said two years I undertake and agree to forfeit a sum to be calculated according to the following rates:

(a) Up to three months'' service Re.1 for each completed month of service.

(b) Over three months not exceeding six months'' service Rs.2 for each completed month of service subject to a maximum of Rs.10.

(c) Over six months'' but not exceeding one years'' service Rs.3 for each completed month of service subject to a maximum of Rs.25.

(d) After one year''s but within two years'' service Rs.4 for each completed month of service subject of a maximum of Rs.50.

Para 413 A register of candidates for recruitment shall be kept in every district (Form No.355). Whenever a candidate is sent for examination to the Civil Surgeon the register will be sent with him, all the columns having been filled up except columns 8, 13, 14, 15, 16 and 17. The Civil Surgeon will fill up columns 8 and 13. If the candidate is declared to be unfit the entry should be struck out with red ink.

Para 418 As soon as a man''s name is entered in the register of candidates and he is passed by the Civil Surgeon or immediately after enlistment in the case of a man recruited without being first registered as a candidate, his character, antecedents and age must be certified in Form No.92. This form must be written up for dispatch by the lines muharrir in the presence of the reserve inspector or other officer not below the rank of subinspector and must be signed by these officers and by the recruit before the recruit is enlisted. The recruit should be warned that if the account be gives of himself is found to be false, in any particular, he will render himself liable to prosecution under Section 182 of the Indian Penal Code. Superintendent should carefully ascertain whether the man has ever been in Government service before, and verify his statement on this point, as far as possible noting the result in this form in English.

Para 419 As soon as a candidate is passed by the Civil Surgeon a form of exhortation will be read out to him in the presence of the senior gazetted officer at headquarters or, in the absence of all gazetted officer from headquarters, in the presence of the officerincharge of the office of the Superintendent of Police. Subsequently an oath will be taken by the candidate as specified in Police Form No.90 and he will be given a copy of police Form No.91 in which the duties and aims of police constable, are set forth. The ceremony of administering the oath should be made as impressive as possible in order to enhance its value.�

Learned counsel for the petitioners has further submitted that the Government Order dated 25.3.1994 is against the U.P. Public Service (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1994 and it is also against the verdict of the Hon''ble Supreme Court. The said Act and the Police Regulations will prevail on the Government order. The petitioners are the selected candidates in view of the Police Regulations and the selection of the reserve category candidates who have taken the benefit of age relaxation but were recruited against general category quota is bad in eye of law; they can be adjusted aganst the reserve category quota. This action of the opposite parties is wholly arbitrary. In support of his submissions, learned counsel for the petitioners has relied on the judgment of this Court as reported in 2005 (23) LCD 433, U.P. Public Service Commission and others v. Rajeev Kumar Bansal. The relevant portion of the said judgment is as under:

�According to the eminent jurist Kelsen, in the legal system of every country there is a hierarchy in laws. In India, this hierarchy is as follows:

(i) The Constitution of India,

(ii) Statutory law, which may be either parliamentary or law made by the State Legislature,

(iii) Delegated legislation which maybe in various forms e.g. Rules made under an Act, regulations made under the Act, notification under an Act etc.

(iv) Administrative instruction or executive orders.

The settled principle is that if there is any conflict between a higher law in the hierarchy and a lower law, then the higher law will prevail. The rules/statutory notifications are in the third layer in the hierarchy of laws as stated above. An advertisement is in the fourth layer because it is in substance merely an executive or administrative order. Hence, if there is conflict between third layer and fourth layer in the hierarchy of law, then the third layer of law will prevail. Logically it follows that if there is conflict between the essential qualification prescribed by the rules/statutory notification and the advertisement prescribing the qualifications, then the qualifications prescribed by the advertisement has to be declared invalid. Hence even if the advertisement for the post required five years working experience that will not help the appellant as the statutory notification of 1989 prescribed only oneyear experience.�

Learned counsel for the petitioners has fortified his submissions by relying on a decision of the Hon''ble Supreme Court of India as reported in (1997) 6 SCC 283, Post Graduate Institute of Medical Education & Research, Chandigarh and others v. K.L. Narasimhan and another. The relevant portion of the said judgment is as under:

�It was decided that no relaxation in respect of qualifications or experience would be recommended by Scrutiny Committee for any of the applications including candidates belonging to Dalits and Tribes. In furtherance thereof, the faculty posts should be reserved without mentioning the specialty; if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If no Dalit and Tribe candidates; otherwise the reserved post would be carried forward to the next year/advertisement. It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate.�

Learned Standing Counsel has reiterated the same submissions again. The counter affidavit on behalf of opposite parties was filed by Sri P.C. Meena, Commandant, 30th Vahuini, P.A.C., Gonda denying the averments made in the writ petitions. According to learned counsel for the opposite parties, the selection for recruiting PAC constables was held on 28.7.1998 in accordance with law. There was no illegality or irregularity in the selection proceedings. There were 188 vacancies, which were available for unreserved category candidates. The result was declared indicating the merit of all the candidates for the said vacancies. The petitioners being below in the merit list of 188 candidates could not be selected. There was no restriction for selection of O.B.Cs. candidates against the vacancies meant for general category candidates. The opposite parties had rightly filled up 101 posts meant for candidates of O.B.Cs. category and had accommodated the O.B.Cs. candidates in unreserved category. There were total 79 posts reserved for S.Cs and 7 for S.T. candidates. Out of the eligible candidates, 25 were selected against S.Cs and 5 against S.Ts. seats. The S.C. and S.T. candidates having higher marks were allocated general category seats. Some of the S.C. and S.T. candidates were declared unfit on medical examination hence they could not be finally selected for recruitment.

The opposite parties have admitted in their counter affidavit that candidates of O.B.Cs and S.Cs. category were appointed in general category leaving several posts vacant in reserve category. It has further been admitted by the opposite parties that 56 posts were left unfilled and the same were returned to the Government as no appointments were made on these posts.

Learned Standing counsel has strenuously argued that there was no illegality or irregularity in the selection process. There was no legal impediment in appointing O.B.Cs or S.C. candidates against unreserved posts. The Government has a right to keep the posts unfilled and accordingly after completing the quota of O.B.Cs. S.C. and S.T. candidates, remaining 56 posts were returned. The petitioners cannot impose their employment on the opposite parties.

I have heard learned counsel for the parties and perused the record.

It is evident from the record that there were glaring infirmities in the selection. The Selection Board had not followed the hierarchy of law. The Selection Board and the concerned authorities had acted arbitrarily and mala fidely in not selecting the petitioners and returning 56 posts back to the Government. Under the exigencies of services, these posts could have been filled by the petitioners who were duly selected by the selection committee and were found fit and suitable for employment after their medical examination as per provisions of the Police Regulations.

In the present case, 90 candidates belonging to O.B.Cs. category have been selected in general category. It is noteworthy that these candidates had applied in general category and some of them had sought relaxation in age on the ground of their being O.B.Cs. category candidates.

The record further reveals that there were total 375 vacancies, out of which 188 posts were meant for general category candidates, 101 for O.B.Cs. 78 for S.Cs and 8 for S.Ts. candidates. As per record, the petitioners were amongst the candidates who had obtained highest marks in physical test. In written test also, which was held on 20.8.1998, they were amongst the persons who had obtained higher marks. The petitioners had cleared the interview and the medical examination. The result was declared on 6.9.1998. When the select list was declared, separate lists of candidates of general category, O.B.Cs., S.Cs. and S.Ts. were prepared. Out of 188 posts meant for general category candidates, 77 were filled by taking candidates of general category, 90 from O.B.Cs., 19 from S.Cs. and 2 from S.Ts., 27 candidates of S.Cs. out of 46 were taken in reserve category and remaining 19 candidates were allocated against general category vacancies. Several posts belonging to reserve categories of S.Cs. and S.Ts. were deliberately kept unfilled and the candidates who had sought relaxation in age and other benefits on the ground of their being O.B.Cs. were allocated general category seats. The S.C./S.T. candidates could have been accommodated in the lists of S.C./S.T. candidates. There was no justification for keeping the posts of O.B.Cs., S.Cs. and S.Ts. categories unfilled. As indicated above, the candidates of these categories were deliberately allocated general category seats with a view to oust the general category candidates from seeking employment. The petitioners have also challenged the constitution of the selection Board and allegations of bias and unfairness have been levelled against the members of the Board.

The opposite parties have failed to explain as to why 56 posts were not filled and the same were returned to the Government. These posts were returned back as unfilled without adequate reasons. The counter affidavit and the supplementary counter affidavit are silent on this point. This action of the administrative authorities, opposite parties appears to be arbitrary. Any administrative action which is arbitrary and mala fide cannot be sustained, vide decisions of Hon''ble Supreme Court of India as reported in (1990) 3 SCC 223, Sri Sitaram Sugar Company Limited and another v. Union of India and others, (2002) 6 SCC 562, Kailash Chand Sharma v. State of Rajasthan and others, (2003) 7 SCC 1, Secretary, Ministry of Chemicals & Fertilizers, Government of India v. Cipla Ltd. and others and AIR 1998 SC 1703, State of Punjab and others v. Ram Lubhaya Bagga and others. The Hon''ble Supreme Court in these decisions has held that an administrative action can be scrutinized if it is arbitrary and violative of any provisions of the Constitution, statutory law or other laws of the land. This Court in the case of Rakesh Kumar Sharma, Advocate and others v. State of U.P. and another, reported in 2004 (22) LCD 1002 has followed the principles of law as laid down by the Hon''ble Supreme Court in the cases referred to above.

In the present case, all the petitioners were found physically fit in the first round of test. They cleared written examination and interview. They were finally selected for recruitment and were sent for medical examination, as provided under paras 412, 413, 418 and 419 of Chapter 29 of the Police Regulations framed under the provisions of the Police Act. The provisions contained in these paras have been quoted in foregoing paras of this judgment. The only thing left to be done was sending the petitioners for training. After completing the training, they had to be enlisted and made regular members of the police force. After reaching this stage, the petitioners were ousted from the arena of selected candidates. If 56 posts had not been returned back or left unfilled and O.B.Cs., S.C. and S.T. category candidates had not been allocated general category vacancies, the petitioners must have been recruited alongwith other candidates. On the principles of doctrine of legitimate expectation, the petitioners deserve to be appointed as constables. As per record placed before the court, the petitioners were finally selected for recruitment.

The petitioners had been unnecessarily discriminated. The action of the opposite parties is clearly violative of Articles 14 and 16 of the Constitution of India. The petitioners'' case is covered by the decisions of the Hon''ble Supreme Court in the cases of Mohammad Sujat Ali v. Union of India, reported in (1975) 3 SCC 76, Indra Sawhney v. Union of India and others, reported in (1992) 3 SCC 437, PostGraduate Institute of Medical Education & Reasearch, Chandigarh and others v. K.L. Narasimhan and another, reported in (1997) 6 SCC 283, State of U.P. and Others v. Pawan Kumar Tiwari and others, reported in (2005) 2 SCC 10 and decisions of this Court as reported in 2004 (1) UPLBEC 615, Excise Commissioner, U.P. Allahabad and others v. Sanjay Kumar Yadav and another and 2005 (23) LCD 433, U.P. Public Service Commission and others v. Rajeev Kumar Bansal.

The Selection Board had not followed the hierarchy of law. The candidates belonging to the categories of O.B.Cs., S.Cs. and S.Ts. were accommodated against general category quota even though they had taken the benefit of age relaxation. The rule that reservation cannot exceed 50% has been violated by appointing the candidates of O.B.Cs., S.Cs. and S.Ts. in general category and deliberately 56 posts of reserve category were returned unfilled, which has resulted in exceeding the 50% quota of reserve category. This was not permissible according to the principles of law laid down by the Hon''ble Supreme Court of India in Indira Sawhney case (supra).

The Hon''ble Supreme Court of India has observed in the case of State of Jammu and Kashmir v. Sri Triloki Nath Khosa and others, reported in (1974) 1 SCC 19 that �the concept of equal opportunity undoubtedly permeates the whole spectrum of an individual''s employment from appointment through promotion and termination to the payment of gratuity and pension. But the concept of equality has an inherent limitation arising from that very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstances are entitled to an equal treatment.�

Thus in the present case, the principle of equality for equals has not been adopted by the opposite parties for making selection and appointment of constables in P.A.C. The opposite parties have provided much extra benefit to the reserve category candidates when they could have been easily accommodated against 56 vacancies already available and earmarked for them. There was no justification for this strange treatment given to the petitioners. It appears to have been done purposely to deprive the petitioners of seeking employment even after their final selection and clearing the medical examination.

In view of above discussion, it is held that the Selection Board and the appropriate authorities responsible for making recruitment have committed illegalities and irregularities while making selections. Now about 67 years have passed and the selected candidates have already been given appointment by the Government and they are serving the department. In the circumstances, it would not be in the interest of justice to quash their selection and appointment. The petitioners, who are contesting these petitions, shall be deemed to have been selected and recruited on the date when other similarly placed candidates were selected, recruited and appointed by the opposite parties as a result of the selection process which was initiated in 1998 for filling up 375 posts of P.A.C. constables. The petitioners shall be sent for training immediately and shall be treated as recruited and appointed since 1998 from the dates when other candidates selected by abovesaid Selection Board were selected and recruited.

It is notworthy that this Court had, while hearing the petition at admission stage on 21.9.1998, provided that the record of the selection shall not be weeded out and shall be sealed and appointments, if any, on the basis of selection shall be subject to the decision of the writ petition. This Court has taken judicial notice of the fact that about 56 vacancies on the post of PAC constables were returned unfilled and presently also I have been informed that a large number of vacancies are available (or there may be 78 vacancies available to accommodate the petitioners) and the petitioners can be recruited and appointed against these vacancies. The petitioners, after their final selection and medical examination, were prevented to undergo training due to illegal and arbitrary action of the opposite parties. They are entitled for recruitment and appointment on the post of PAC constables with effect from 1998. They shall also be entitled for consequential benefits, like seniority etc. However, under the circumstances of the case, since the petitioners have not worked during pendency of the writ petitions, they are not entitled for back wages on the principle of ''No work, no pay''. Since these petitions were filed in 19981999 and about seven years have passed in these circumstances, the opposite parties are directed to ensure the compliance of this judgment and order within six weeks from the date of presentation of a certified copy of this judgment and order before them.

The writ petitions are allowed in the manner indicated above.

(Petition allowed)