Allahabad High Court
State Of U.P. And 2 Ors. vs Vijay Yadav And 10 Ors. on 23 December, 2014
Bench: Vineet Saran, Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on : 10.10.2014 Delivered on : 23.12.2014 Court No. - 37 Case :- SPECIAL APPEAL No. - 654 of 2014 Appellant :- State Of U.P. And 2 Ors. Respondent :- Vijay Yadav And 10 Ors. Counsel for Appellant :- Piyush Shukla, S.C. Counsel for Respondent :- Siddharth Khare AND Case :- SPECIAL APPEAL No. - 655 of 2014 Appellant :- State Of U.P. And 3 Ors. Respondent :- Vijay Shankar Yadav Counsel for Appellant :- Piyush Shukla, S.C. Counsel for Respondent :- Siddharth Khare Hon'ble Vineet Saran,J.
Hon'ble Vivek Kumar Birla,J.
(Delivered by Hon'ble Vivek Kumar Birla,J.) These two special appeals, being Special Appeal Nos. 654 of 2014 and 655 of 2014, involving identical controversy were heard together and are being disposed of by a common judgement.
A bunch of petitions was allowed by the learned Single Judge vide order dated 28 January 2014 on the ground that more or less identical set of facts and controversy was involved in the said petitions. The learned Single Judge allowed the writ petitions filed challenging the result of the Physical Efficiency Test declaring the petitioners unqualified by an order dated 2 November 2011 of the Deputy Superintendent of Police, Establishment passed on behalf of the Deputy Inspector General of Police (Establishment), U.P on the ground that the select committee, which had undertaken the selection process, was not constituted in accordance with the U.P. Sub Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter referred to as the Rules). Declaration of the result of the petitioners, by which they were declared as having been failed to clear the Physical Efficiency Test, was set aside and it was further directed that the petitioners shall be allowed to undergo Physical Efficiency Test afresh in accordance with the Rules through a team consisting of members as provided in the Rules.
For the purpose of deciding the appeals, the facts of the Special Appeal No. 654 of 2014 are being taken into consideration as there is no dispute between the parties that a common judgment will apply in the appeals.
The writ petitioners/respondents filed Civil Misc. Writ Petition No. 49356 of 2011 (Vijay Shankar Yadav and others Vs. State of U.P. and others) seeking a writ of certiorari for quashing the result of the Physical Efficiency Test of the petitioners conducted by the respondent-Authorities after directing them to bring the same on record. A further prayer was also made that a writ of suitable nature be issued commanding the respondent-Authorities to re-conduct the physical examination of the petitioners for compassionate appointment on the post of Sub-Inspector.
Shorn of details, the facts in brief are that father of each of the petitioners were posted either on the post of Constable, Head Constable, Sub Inspector or Inspector in U.P. Police Department in different districts of State and expired while in service. The petitioners applied for compassionate appointment on the post of Sub-Inspector and when no final orders were passed, they filed Writ Petition No. 29997 of 2011 before this Court, which was disposed of by an order dated 23 May 2011 directing the Deputy Inspector General of Police (Establishment), U.P. at Allahabad to see and ensure that proceeding in reference to the petitioner, is finalized in accordance with law. It has been stated that call letters dated 4 July 2011 were issued to the petitioners to appear on 25, 26 and 27 July 2011 at Reserved Police Lines, Lucknow for Physical Efficiency Test. The petitioners, accordingly, appeared on 25 July 2011 for Physical Efficiency Test and it was asserted that the result of the aforesaid test was not declared and it is only on inquiry they found that they have been declared failed. The petition was filed on the ground that no procedure as envisaged in Rule 15 (e) of the Rules was followed. It was further stated in the petition that the appropriate electronic gadget was not attached to the legs of candidates which would have recorded the number of rounds completed by a candidate correctly and instead rounds were sought to be counted by a few persons present though number of candidates running was quite large.
The writ petition was allowed holding that the respondents have conducted the Physical Efficiency Test through the Selection Committee which was not duly constituted in accordance with Rules. It was held that there cannot be any estoppel against law. When something has been done by a body, not legally constituted, such action would be void ab initio. It was further held that in such a case, principle that once who has participated in the selection, he cannot challenge rules of the game, will not apply.
A counter affidavit has been filed on behalf of the writ petitioners/respondents whereby a copy of the judgement dated 31 October 2012 of Writ Petition No. 54365 of 2012 (Ajay Kumar Yadav Vs. State of U.P.) has been placed on record. In the aforesaid writ petition it was contended that time provided to the petitioners for preparing themselves for physical efficiency test was too short as the male candidates were required to complete the run of 10 kms. in 60 minutes and the female candidates a run of 5 kms. in 35 minutes and therefore another opportunity was sought for Physical Efficiency Test. The petition was dismissed by the learned Single Judge, against which Special Appeal Defective No. 1068 of 2012 (Ajay Kumar Yadav Vs. State of U.P. and others) was filed, which was allowed by judgement dated 10 December 2012 holding that the first opportunity of Physical Efficiency Test was illusory for want of notice and as such another opportunity to the appellant to face physical efficiency test was directed to be given. Against the judgement dated 10 December 2012 the State of U.P. filed S.L.P. before the Apex Court which was dismissed by an order dated 5 July 2013, a copy whereof is Annexure-3 to the counter affidavit.
Heard Sri Bhola Nath Yadav learned Standing Counsel and Sri Siddharth Khare learned counsel for the writ petitioners/respondents.
The contention of the learned counsel for the appellant-State is that compassionate appointment cannot be claimed as a matter of right, however keeping in view the spirit and object of the compassionate appointment, all the petitioners were offered alternative appointment on the post of Constable, which only few petitioners have accepted and joined. It has been stated that the writ petitioners/respondent nos. 1, 2, 4, 9 and 11 have accepted the appointment on the post of Constable and are presently working in the Police Department. The writ petitioners/respondent nos. 3, 5, 6, 7, 8 and 10 have not accepted the same.
Attention was drawn to Rule 8 (2) of the U.P. Recruitment of Dependants of Government Servants Dying and Harness Rules, 1974 by the counsel for the appellant to assert that even an applicant under the Dying and Harness Rules has to satisfy the authority that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post. The Rule 8 (2) of the Dying in Harness Rules, 1974 is extracted hereinunder:-
"(2) The procedural requirements for selection, such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post."
He further asserted that Rule 5 of the Rules provides for source of recruitment and recruitment of dependants of those persons who died during their service is also made in accordance with the Dying in Harness Rules, 1974 and that recruitment has to be made under these Rules. It was submitted that the Physical Efficiency Test was conducted absolutely in accordance with Rule 15 (e) of the Rules and the writ petitioners/respondents having been declared disqualified in the said Physical Efficiency Test have no right to challenge the selection proceedings. It was further submitted that the claim for appointment on a particular post, as a matter of right, is not open to them. It was also submitted that the petitioners after having failed, cannot challenge the result on the ground that the selection committee was not constituted in accordance with the Rules. It was further asserted that at best the writ petitioners could have challenged the constitution of the selection committee before appearing in the selection and after having failed in the selection proceedings, it is not open to the writ petitioners/respondents to challenge the same.
Learned counsel for the appellant has relied on a judgement of the Apex Court in the case of State of U.P. Vs. Pankaj Kumar Vishnoi JT 2013 (11) SC 408 connected with judgement in Civil Appeal No. 2366 and 2367 of 2011. The aforesaid judgement is also related to State of U.P. regarding recruitment under the Dying in Harness Rules for compassionate appointment in Police Department. The Apex Court held that once the respondents appeared in the test and did not qualify in the Physical Efficiency Test, the High Court could not have asked the department to give them an opportunity to hold another test to extend him the benefit of compassionate appointment on the post of Sub-Inspector, solely on the ground that there has been efflux of time. The respondent, after having been disqualified in the physical test, could not have claimed as a matter of right and demand for an appointment in respect of a particular post and the High Court could not have granted further opportunity after the crisis was over.
Replying to the submissions of the learned counsel for the appellant, Sri Siddharth Khare learned counsel appearing for the writ petitioners/respondents has drawn our attention to Appendix-2 [Rule 15 (e)] of the Rules and contended that with reference to Rule 15 (e), three member team is required to be constituted as provided in Appendix-2. The relevant clause of Appendix-2 is extract below:-
"Physical Efficiency Test- The Physical Efficiency Test is conducted by a three member team comprising following members:
1. Sub-Division Magistrate/Deputy Collector.
2. Doctor / Sports Officer / National Cadet Corps Officer;
3. Deputy Superintendent of Police."
He submitted that since the team which has conducted the Test was not constituted as provided under the Rules, the entire Test is illegal as the Selection Committee was constituted de-hors the Rules and any exercise of selection (Physical Efficiency Test) is thus, illegal and is liable to be quashed. He submitted that the petitioners had no occasion to know about the Constitution of Selection Committee before hand and they came to know about the same only when they appeared for Physical Efficiency Test. As such, there was no opportunity available to them to challenge the same. He pointed out that the Committee which had undertaken the exercise of Physical Efficiency Test consisted of only the police officials / officers whereas, apart from Deputy Superintendent of Police who belongs to the Police Department, the presence of Sub Divisional Magistrate / Deputy Collector and Doctor / Sports Officer / National Cadet Corps Officer was also required.
Drawing our attention to Annexure 1 to the rejoinder affidavit filed in the writ petition, he pointed out that indisputably the Selection Committee so constituted included Deputy Inspector General of Police, Platoon Commander 35 P.A.C., Additional Superintendent of Police C.B.C.I.D., Additional Superintendent of Police S.T.F. and Assistant Platoon Commander 35 P.A.C. Thus, it was in clear violation of the Rule 15 (e) (Appendix-2) applicable in the present case. It was submitted that the Selection Committee must consist of officials not only from the Police Department but from the other departments also, so that there may be lessor scope of bias, and independent and objective consideration is undertaken by the members of the Selection Committee coming from the different departments. It was submitted that under the law when something is required to be done in a particular manner, the respondent cannot do in any other manner.
Learned counsel for the writ petitioners/respondents sought to distinguish the judgment in Pankaj Kumar Vishnoi's case (supra) on the ground that in the aforesaid case the Constitution of the Selection Committee was not under challenge and it was not under consideration that the Selection Committee was not constituted in accordance with Rule 15 (e) Appendix-2 of the Rules. He submitted that the ratio of law as laid down in Pankaj Kumar Vishnoi's case (supra) would not apply in the present case, as it is settled law that something which is required to be done in a particular manner has to be done in that manner alone.
He further submitted that apart from this, the grant of short time for preparation was taken into consideration by this Court in Special Appeal Defective No. 1068 of 2012, which was affirmed by the Apex Court by dismissing the special leave petition against the aforesaid judgement.
Therefore, under the circumstances, it cannot be said that the present case is covered by the judgement in Pankaj Kumar Vishnoi's case (supra).
Apart from the aforesaid, on the strength of the judgment of this Court in Ajay Kumar Yadav's case as affirmed by the Apex Court, it was further submitted that the short time granted for preparation for the Physical Efficiency Test is yet another ground on which the result of the petitioners was liable to be set aside and they are entitled for another Physical Efficiency Test by a Committee validly constituted in accordance with Rules.
We have considered the rival submissions of the parties and have perused the record.
From the record it appears that there is no dispute with regard to the fact that the Selection Committee consisted of Officers from the Police Department only and no Officer from the executive i.e. Sub Divisional Magistrate / Deputy Collector or any Doctor / Sports Officer / National Cadet Corps Officer was taken in the Selection Committee. The law laid down by the Hon'ble Apex Court in State of U.P. Vs. Pankaj Kumar Vishnoi (supra) was heavily relied upon by the counsel for the appellant to assert that no second opportunity could have been granted to the petitioners in the present case. We are of the opinion that the petitioners have challenged the test already conducted by the State on the ground that the same has been conducted by a Selection Committee which was constituted de-hors the Rules and as such any selection, so made by such Selection Committee, which was not validly constituted, was illegal and void ab initio and would not get validated, merely because the petitioners have appeared in such test.
The law regarding claim on compassionate ground is settled that no compassionate appointment can be claimed as a matter of right. However, in our opinion, it is not a simple claim of appointment on compassionate ground but it is the validity of the Selection Committee, which have undertaken the test to satisfy itself about the physical efficiency of the petitioners, which is under challenge and therefore the question as to whether the claim of the petitioners was considered by a valid Selection Committee or not, goes to the root of the case. It is also settled law that when something is required to be done in a particular manner, the thing must be done in that manner alone and any deviation therefore would vitiate their action. Reference may be made to various judgments of the Apex Court on this settled principle of law, few of which are Nazir Ahmad Vs. King-Emperor AIR 1936 PC 253; Dhananjaya Reddy Vs. State of Karnataka 2001 (4) SCC 9; Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala 2002 (1) SCC 633; Captain Sube Singh & others Vs. Lt. Governor of Delhi & others 2004 (6) SCC 440; Competent Authority Vs. Barangore Jute Factory & others 2005 (13) SCC 477; State of Jharkhand & others Vs. Ambay Cements & another 2005 (1) SCC 368 and Daya Shankar Singh Vs. State of U.P. and others, 2008 (2) ESC 1220.
As such, if the Selection Committee was to be constituted as per Rule 15 (e) Appendix-2 of the Rules, the State was under obligation to constitute the Selection Committee accordingly and as already observed that since Committee was not in accordance with the aforesaid provision, the same was not validly constituted committee and any exercise undertaken by the said Selection Committee is illegal.
The Constitution of a valid Selection Committee assumes important so as to avoid bias of the department which is undertaking the test and also to avoid pick and choose policy and it is only for this purpose the Officers from the other departments have also been included in the Selection Committee. There may be yet another angle of the same question, for example, when selection proceeding are being undertaken for some higher post requiring higher qualification and the Selection Committee constitutes persons holding lesser qualification and, therefore, to say that it will not be open to challenge by the candidates who have appeared before such Selection Committee and comes to know about the constitution of the Selection Committee only when they have appeared before such Committee subsequently, merely on the ground that since they have appeared before such Selection Committee and having been declared failed, they cannot be allowed to challenge the constitution of such committee consisting of persons with lesser qualification, to our mind cannot be accepted. Therefore, in our opinion, there may be certain peculiar circumstances where even a challenge to Selection Committee not validly constituted, can be subsequently raised.
From the record it is clear that it was nowhere disputed in the counter affidavit filed by the State / appellant before the writ court that the Selection Committee was constituted as per Rule 15 (e) Appendix-2 and on the contrary, from the minutes of the Selection Committee Annexure 1 to the rejoinder affidavit filed in the writ petition, it is very much clear that the same was not constituted as per Rule 15 (e) Appendix-2 of the said Rules and all the five members constituting the Committee belonged to Police Department and no member from the Administrative Department namely the Sub Divisional Magistrate / Deputy Collector or Doctor / Sports Officer / National Cadet Corps Officer was included in the aforesaid Selection Committee.
Thus, we are of the considered opinion that the learned Single Judge has committed no mistake of law so as to warrant interference in the judgment and order dated 28.1.2014 passed in the writ petitions. Learned Single Judge has rightly granted an opportunity to the State to constitute a Selection Committee as per the Rules and conduct the Physical Efficiency Test afresh.
The writ petitioners/respondent nos. 1, 2, 4, 9 and 11 have exercised their option by joining on the post of Constable which was offered to them after they have failed in the selection proceedings. As such, since they have already accepted the compassionate appointment on the post of Constable, therefore, to our mind their claim in the writ petition has become infructuous. This, however, will not bar the State, in its own wisdom, from granting them any further opportunity during fresh selection proceeding.
Both the appeals are, accordingly, dismissed with the aforesaid observations.
Order Date :- 23.12.2014 Lalit Shukla (Vivek Kumar Birla,J.) (Vineet Saran,J.)