Tarun Kumar vs State Of H.P. & Others

Vivek Singh Thakur, J

Petitioner has approached this Court for quashing of selection of private respondent No. 5 for appointment to the post of driver under Scheduled

Caste category in Police Department in District Kullu, H.P. and for directions to respondent-Department to conduct fresh interview to the said post by

calling eligible qualified candidates including the petitioner to select a genuine candidate to the said post.

Undisputed facts in present case are that vide Compulsory Notification dated 12.7.2017, (Annexure R-1 to the reply of respondents-Department),

Police Department had notified for recruitment 50 posts of General Duty Constables (Male), 13 posts of General Duty Constables (Female) and 6

posts of Constables (Male) (Driver), in accordance with roster point applicable to the said vacancies, as per vertical and horizontal reservation. In this

notification, eligibility condition with respect to age, educational qualification, height and chest, criteria of awarding marks in Physical Standard Tests,

minimum qualifying standard in qualifying Physical Efficiency Test and scheme of marks in Written Test was also notified with note that cut of date,

for calculation of upper and lower age and reserved category certification limit, was 1.7.2017. Upper age limit for General Category Candidate was 23

years, whereas the same for SC, ST, OBC and Gorkhas was 25 years and for candidates from Home Guards it was 28 years.

In present case issue with respect to appointment to the post of Constable (Driver) from SC Category is in question. Therefore, breakup of the

posts of Constables (Driver) is relevant to be reproduced. At the first instance on 12.7.2019, 6 posts of Constables (Driver) were notified and out of

these 6, 3 posts were available for general category and one post each was available for SC (Ex. Servicemen), ST (Antodaya/IRDP) and OBC

(Antodaya/IRDP). There was no post available under the SC (General) Category; rather post was available only under its sub-category i.e. SC (Ex.

Servicemen).

On 14.7.2017 vide Annexure R-3 to the reply of respondents-Department, Police Department, District Kullu had notified left out 16 posts of

Constables General Duty (Male), 3 posts of Constables General Duty (Female) and 3 left out posts of Constables (Male) (Driver). Out of these 3

posts of Constables (Male) (Driver), 2 posts were available under general sub categories i.e. one each for general (ex servicemen) and general

(wards of freedom fighters) and 3rd post was available in sub category of SC i.e. SC (Antodaya/IRDP).

As observed herein above, for the post of Constables (Driver), total 9 posts were notified and breakup of these 9 available posts is as under:-

General                                   =3 posts

General (ex servicemen)Â Â Â Â Â Â Â Â Â Â =1 post

General (WFF) Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â =1 post

SC (Ex servicemen) Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â =1 post

SC (Antodaya/IRDP) Â Â Â Â Â Â Â Â Â Â Â Â Â Â =1 post

ST (Antodaya/IRDP)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â =1 post

OBC (Antodaya/IRDP) Â Â Â Â Â Â Â Â Â Â Â =1 post

As evident from breakup, there was no post of Constable (Driver) (Male) notified in the SC (General) category.

Last date for submission of applications was 21.7.2017 and the said applications had to reach in the office of Superintendent of Police, District Kullu

by 5:00 P.M. through any mode, including by post. It was notified that any application form not received by last date fixed for receipt of applications,

will not be entertained.

Petitioner and respondent No. 5 belong to SC (General) category. On 17.7.2017, petitioner had submitted an application, Annexure R-2 to the reply

of respondent-Department, with prayer to consider his candidature against the post notified for Constable (Driver) in General category for the reason

that there was no post available in SC (General) category. His application was accepted by the authorities and he was permitted to participate in the

selection process.

Respondent No. 5 had applied to the post of Constable (General Duty) in the category of SC (General) category. Respondent No. 5 had completed

his age of 23 years on 1.7.2017 and, therefore, he was not eligible to be considered against the post notified in the General category. Whereas,

petitioner was below 23 years and thus was having right to be considered against General category on the basis of his merit.

On finding petitioner and respondent No. 5 eligible, they were called for physical efficiency test. In pursuance to the said call, they had appeared in

physical efficiency test, conducted in August, 2017 on respective dates fixed for the said purposes and on qualifying physical efficiency test, they were

called for written examination and in the written examination, petitioner as well as respondent No. 5 had scored 37 marks each.

As per reply of respondents-Department, minimum qualifying marks for general (unreserved) category were 50% of the total i.e. 40 marks, out of

total 80 marks. As the petitioner had applied under general (unreserved) category, therefore, he was considered unqualified. It would be apt to notice

at this stage that no such minimum qualifying marks in the written examination have been notified in compulsory notifications dated 12.7.2017 and

14.7.2017. It is also not clarified in the reply that what were minimum qualifying marks for reserved categories.

After written examination, suitability-cum-personality test was conducted by District Recruitment Committee (for short ‘DRC’) w.e.f.

7.5.2018 to 10.5.2018.

DRC had completed selection process on 10.5.2018 and proceedings of DRC, dated 10.5.2018 have also been placed on record as Annexure R-5

by respondents-Department. On conclusion of recruitment process, respondent No. 5 was declared to have been selected to the post of Constable

(Driver) in SC (General) category.

It is case of the respondents-Department, as also stated in proceedings of DRC, that interview for the post of Constables (Driver) reserved for SC

(Ex-servicemen) was not conducted as name for the post reserved for SC (Ex-servicemen) was to be sponsored by the State Selection Committee,

Sub Regional Employment Office, Ex-servicemen Cell, Hamirpur. Against 3 posts of constables (driver) of general (unreserved) category, only 2

candidate were available for interview and no candidate was available for the one post of Constables (Driver) reserved for SC (IRDP) and, therefore,

the said post was de-reserved to SC (General) category and only one candidate of SC (General) category, who had qualified the written test was

interviewed against the said post. For purpose of clarity it would be apt to mention here that this candidate was respondent No. 5 who had applied to

the post of Constable (General Duty).

For justifying the action of respondents-Department, appointing respondent No. 5 against the post of Constable (Driver) under SC (General)

Category, reliance has been placed on a communication dated 20.11.2013, Annexure R-4 to the reply of respondents-Department, issued by Additional

Chief Secretary (Home) to the Government of Himachal Pradesh to Director General of Police, wherein it has been clarified that in case of non-

availability of BPL/IRDP candidate against the post reserved for such candidate, such, post will be automatically de-reserved in the first recruitment

year itself and be filled up from the candidates of respective residuary category to which the point belongs. There is no dispute with respect to

clarification conveyed vide aforesaid letter dated 20.11.2013, but in the facts and circumstances of the present case, the procedure adopted by the

respondents-Department is not sustainable in the eye of law for the discussions hereinafter.

In Compulsory Notifications dated 12.7.2014 and 14.7.2014, no post of Constables (Driver) was notified to be filled from the SC (General)

category. Therefore, there was no occasion for anybody belonging to the said category, including the petitioner as well as respondent No. 5, to apply

to the post of Constables (Driver) under SC (General) category. The post was available only for the category of SC (IRDP) and, therefore, on the last

date of submissions of application, i.e. 21.7.2017, there was no application in the residuary category i.e. SC (General). Admittedly, neither petitioner

nor respondent No. 5 belongs to sub category of SC (IRDP).

Petitioner had applied to the post of Constable (Driver), available for General (unreserved) category, for the reasons that there was no post

available under the SC (General) category. Whereas, respondent No. 5 had applied to the post of Constables (General Duty) available of SC

(General) category.

No application after 21.7.2017 was to be entertained. Till last date, respondent No. 5 had not applied to the post of Constable (Driver) and in fact

he could not have applied, for the reasons that he was not belonging to the sub category IRDP in residue SC category for which the post of Constable

(Driver) was available and he was not eligible to be considered to the post of Constable (Driver) notified under General (unreserved) category, as he

had crossed the maximum age limit provided for the said category whereas petitioner was within age limit prescribed for General category candidates.

Therefore, on the last date of submission of applications, petitioner was competing for the post of Constable (Driver) notified for General (unreserved)

category, whereas respondent No. 5 was competing to the post of Constable General Duty. Thus consideration of candidature of respondent No. 5 for

the post of Constable (Driver) against SC (General) category, which became available after 21.7.2017, i.e. after last date for submitting applications, is

an act which is not permissible under law as well as in terms of conditions notified in Compulsory Notifications dated 12.7.2017 and 14.7.2017.

In sequel to clarification dated 20.11.2013, the post of Constable (Driver) in the sub category of SC (IRDP) was de-reserved and thus became

available in respective residuary category i.e. SC (General), during selection process but after last date of receipt of application and thus no one from

the SC (General) category was able to apply for the said post. Vide communication dated 22.12.2018, respondents-Department has disclosed to the

petitioner by supplying information under the Right to Information Act, that respondent No. 5 had submitted an application during process of Physical

Efficiency Test, requesting therein that he had valid license and wanted to fight for the post of driver. Physical Efficiency Test was conducted in

August, 2017. Entertainment of such application during process of physical efficiency test, i.e. in August, 2017, after 21.7.2017, i.e. notified last date

for receipt of applications, is an illegal act on the part of concerned authority/Department.

There is no defect in the clarification dated 20.11.2013, but the same would be applicable in the circumstances when at least one post under

residuary category has also been notified, enabling the candidates of residuary category, desirous for the said post, to apply for the said post, so that

when a post notified for sub category becomes available as an additional post to the residuary category for non-availability of candidate in the sub

category, the candidates, who apply for the post available in residuary category, are available to be considered and selected against the said additional

post falling to residuary category.

In present case, there was no post notified in residuary category, i.e. SC (General) and, therefore, there was no applicant available with the

Department to be considered under residuary category, i.e. SC (General) and, therefore, in such eventuality the post becoming available in residuary

SC (General) category was required to be notified again in the SC (General) category. The respondents-Department was not having any right to

entertain the application of respondent No. 5 after the last date notified for that and also to convert his application submitted by him for considering his

candidature for Constable (General Duty) into an application to the post of Constable (Driver) under SC (General) category, which post was not

available on the last date of submission of application form.

A course, which would perhaps had enabled the concerned authority to contend its bonafide intention, would have that immediately after

availability of post for SC (General) category on de- reservation from sub category of SC (IRDP), the said post would have, at least, notified to all

candidates of SC (Category) particularly in the process either against the post of Constable (Driver) General (unreserved) category or Constable

(General Duty) SC category or any other post but belonging to SC (Category) including petitioner and respondent No. 5 to give them a chance to

apply subject to their eligibility. Though such procedure would also have deprived those who had not applied under SC (General) category to the post

of driver for non-availability of post but to some extent it would have helped the authority to justify bonafide intention of adopting fair procedure

providing lesser probability of interference by the Court.

It was categorically stated by the petitioner in his application dated 17.7.2017 that he was applying for the post of Constable (Driver) notified for

the General Category (unreserved) for non-availability of post of Constable (Driver) in the category of SC (General), therefore, his application to

consider his candidature to the post of Constable (Driver) under the General (unreserved) category was under compulsion and in case it would have

been in the knowledge of petitioner that there was no candidate available in SC (IRDP) category and the said post was available in residuary category

i.e. SC (General ) category and the application for that available post was being entertained by the respondents-Department even after last date, i.e.

21.7.2017, then definitely petitioner would have an occasion to decide as to whether he was interested to be considered against the said post being

made available under the residuary category i.e. SC (General) or to continue competing for the post available in General (unreserved) category. The

respondents-Department has neither notified in general nor to the candidates who had participated in the selection process, with respect to availability

of post of Constable (Driver) in the residuary category i.e. SC (General). Therefore, entertainment of application of respondent No. 5, in aforesaid

facts and circumstances, is arbitrary and violative of Article 14 of the Constitution of India.

In the facts and circumstances of the present case, for discussion hereinabove, recommendation and selection of respondent No. 5 to the post of

Constable (Driver) in the category of SC (General) is quashed and set aside with direction to the respondents-Department to notify the vacancy of

Constable (Driver) in SC (General) category again and to fill up the post by adopting the procedure prescribed for that. The necessary process be

initiated on or before 31.12.2020 and be completed at the earliest, preferably within three months thereafter. It is made clear that if other posts are

also available, the process for the post in question be initiated collectively along with the process for those posts within the time stipulated herein

above.

The petition is allowed and disposed of in the aforesaid terms.