Allahabad High Court
Abhishek Kumar Singh & 3 Ors. vs State Of U.P. Through Prin. Secy. Deptt. ... on 24 August, 2016
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on:26.05.2016 Delivered on:24.08.2016 Court No. - 10 (1) Case :- SERVICE SINGLE No. - 5158 of 2015 Petitioner :- Abhishek Kumar Singh & 3 Ors. Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Home Lko. & Ors. Counsel for Petitioner :- Vidhu Bhushan Kalia,Ankit Pande,Birendra Pratap Singh,Laxmi Kant Pathak,Rajat Rajan Singh,Ravi Pratap Singh Counsel for Respondent :- C.S.C.,Abhishek Bose,Amit Bose,Dr L P Mishra,P.D.Verma,Pushkar Baghel,Vijay Kumar & (2) Case :- SERVICE SINGLE No. - 6395 of 2015 Petitioner :- Atul Verma & 7 Ors. Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Home Lko. & Ors. Counsel for Petitioner :- Vishu Bhushan Kalia Counsel for Respondent :- C.S.C. & (3) Case :- SERVICE SINGLE No. - 3239 of 2016 Petitioner :- Ajay Sinha And 24 Ors. Respondent :- State Of U.P.Thru Prin.Secy.Deptt.Of Home Govt.Of Up & Ors. Counsel for Petitioner :- Vidhu Bhushan Kalia,Rajat Rajan Singh Counsel for Respondent :- C.S.C. Hon'ble Rajan Roy,J.
This is a bunch of writ petitions involving similar facts and issues relating to a challenge to the select list dated 25.06.2015 pertaining to selection to the post of Sub Inspector Civil Police and Platoon Commander held in pursuance to an advertisement issued on 19.05.2011 and also a challenge to paragraph 4 of the Government order dated 24.03.1994.
For convenience writ petition no. 5158 (SS) of 2015 has been treated as the leading writ petition and the facts mentioned hereinafter are based on its records.
Learned Advocate General initially contended that hearing of the matter be deferred on account of the reference made by a Division Bench of this Court in Writ-A No. 40695 of 2005 (Ajay Kumar vs. State of U.P. And others) as to what should be the mechanism for application of horizontal reservation in respect of various categories provided therein namely women, dependents of freedom fighter /physically handicapped etc. in the State of U.P. noticing a conflict in the ratio of Rajeev Kumar vs State of U.P. reported in (2010) 7 SCC 708. As this pleas was negatived by a Coordinate Bench while deciding the case of Writ-A 37599 of 2015 (Ashish Kumar Pandey and others vs. State of U.P. and others) which has been upheld in Special Appeal and the mechanism for horizontal reservation is already mentioned in rule 3(3) of the Act, 1993 and clause 2.5 of the Instructions Manual as also the Government orders on the subject, including women reservation, and as the grounds of challenge in these petitions go beyond the question of application of horizontal reservation, therefore, this Court does not find any reason to defer the hearing of these writ petitions.
The selection in question was regulated by the Rules known as U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter referred to as the 'Service Rules of 2008). As per the said Rules the selection was to comprise of a Physical Standard test [Rule 15(c)]; Preliminary Written test [(Rule 15(d)]; Physical Efficiency Test [Rule 15(e)], Main written examination [Rule 15 (f); Group Discussion (Rule 15(g); Tentative Select List [Rule 15(h)]; Medical Test [Rule 15(i)]; and Character verification [Rule15(j)]. Thereafter the appointment orders were to be issued. The physical standard test, preliminary written test, physical efficiency test, were to be of a qualifying nature and their marks were not to be added in the final merit.
Preliminary written test was to comprise of 200 marks. The candidate was required to secure 50% marks in the said test in order to be successful and for being called for the Physical Efficiency Test. In the physical efficiency test the male candidates were required to complete a run of 4.8 kilometers in 35 minutes female candidates were required to complete a run of 2.4 kilometers in 20 minutes. The main written examination was to comprise of 400 marks in various subjects and minimum fifty percent marks in each subject was necessary for being eligible for consideration for further selection. Having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and others under Rule 6, the Board was to prepare a list of successful candidates on the basis of marks obtained by them in the main written examination. The number of candidates selected in the main written examination as aforesaid were to appear in Group discussion to the extent of three times of the number of vacancies. The marks obtained by each candidate in main examination were to be added to the marks obtained by him in the Group discussion and on the basis of total marks obtained by each candidate as aforesaid, keeping in view the reservation policy, a tentative select list of each category of candidates in respect of vacancies was to be prepared and sent to the head of the department with recommendation, subject to medical test and verification of Testimonials/character, who was to undertake further action.
In the instant case the advertisement for the aforesaid selection was issued on 19.05.2011. The preliminary test was held on 11.12.2011. Its result was declared on 01.12.2013. The physical efficiency test was held between 05.02.2014 to 17.02.2014. On 14.09.2014 the main examination was held. Its result was declared on 23.04.2014 in which the petitioners were declared successful. Thereafter group discussion was held on different dates and the select list was issued wherein the names of the petitioners did not figure.
One writ petition was filed at Allahabad by Ashish Kumar Pandey and others (supra) challenging the same selection on the ground of erroneous application of horizontal reservation, wherein an interim order was passed staying the selection which was subsequently modified. The said writ petition was allowed on 16.03.2016 and the selection in question was quashed on the aforesaid ground. The opposite parties were directed to re-determine the merit list in terms of the direction issued therein. The aforesaid judgment was put to challenge by the State in Special Appeal No. 310 of 2015 wherein judgment was reserved. Subsequently it has been pronounced and the judgment of Hon'ble Single Judge has been upheld except to the extent, certain observations made therein unrelated to merits of the controversy, have been expunged. This development has taken place after the judgment was reserved in this case. As, in this writ petition the selection has been challenged on a number of grounds including those which were not raised in the aforesaid proceedings at Allahabad, therefore, it is necessary to decide these petitions on merits.
The total number of posts of Sub Inspector Civil police which were advertised for selection were 3698 out of which 777 were reserved for Scheduled caste, 74 were reserved for Scheduled Tribe, 998 were reserved for other backward class category and 1849 were for open/unreserved/general category. Total number of posts of Platoon Commander for selection were 312 out of which 66 were reserved for Scheduled caste, 6 were reserved for Scheduled tribe, 84 were reserved for other backward class category and 156 were for open/unreserved/general category. Thus the total number of posts advertised were 4010 out of which 843 were reserved for Scheduled caste, 80 for Scheduled tribe, 1082 for other backward class category and 2005 were for open/unreserved/general category.
Horizontal reservation for dependents of freedom fighter and ex-servicemen was 2% and 5% respectively. Under the Government orders such reservation for women was 20%.
The compartmentalized breakup of horizontal reservation provided for, in each social category, as worked out by the Board was as under:-
Open Category:
1. Women 370
2. Dependent of Freedom Fighter 37
3. Ex-Servicemen 92 OBC Category:
1. Women. 200
2. Dependent of Freedom Fighter 20
3. Ex-Servicemen 50 Scheduled Caste Category:
1. Women 155
2. Dependent of Freedom Fighter 16
3. Ex-Servicemen 39 Scheduled Tribe Category:
1. Women 15
2. Dependent of Freedom Fighter 1
3. Ex-Servicemen 5 The cut off marks of the respective categories at the final selection i.e. OC/OBC/SC/ST was as follows:-
1. Open category - 328.5
2. OBC category -316.0833
3. Scheduled Caste -271.5
4. Scheduled Tribe -235.4167.
19 women candidates ( 9-General Category and 10-OBC) having obtained marks above the cut off marks for the open category were selected on open merit. Out of a total quota of 740 posts for women only 261 candidates could be selected, therefore, they were to be adjusted horizontally under the women quota. Likewise, candidates belonging to dependent of freedom fighter and ex-servicemen were to be adjusted horizontally.
As against 740 posts/vacancies reserved for women only 261 female successful candidates were available. As, except one all of them were, according to opposite parties, meritorious enough for appointment in the unreserved category and the 370 seats meant for the said category all of them were placed in the said category. Out of 200 seats for dependents of ex-servicemen based on horizontal reservation only 17 were available. Out of 200 posts 100 such posts fell for reserved category candidates whereas remaining 100 for unreserved category. As all 17 were meritorious enough to be appointed in General category, therefore, they were put in the said category. Similarly 37 dependents of Freedom Fighter were successful in the Sub-Inspector merit list against total seats of 80 (40 for unreserved and 40 for Scheduled Caste/Scheduled Tribe & Other Backward Class category), therefore, as all these were meritorious enough to be placed in unreserved category they were placed accordingly in the said category. Thus, all the candidates selected on the basis of horizontal reservation were adjusted against unreserved/open/general category and equal number of general candidates were ousted as a consequence thereof from the said category.
This Court on 04.11.2015 had recorded the points/questions which fell for consideration in these writ petitions, they are as under:-
1. Locus standi of the petitioners to maintain this writ petition challenging the criteria of recruitment after having participated in the selection process, specially the challenge to the government order dated 25.3.1994.
2. The permissibility of rounding off the percentage of marks for the purpose of eligibility for the main written examination, based on the marks secured in the preliminary examination, in the light of the pronouncement of the Supreme Court reported in (2011) 8 SCC 108.
3. Applicability of horizontal reservation for women dependents of Freedom Fighters and Ex-servicemen in the selection.
4. The calling of more than three times candidates for the purposes of group-discussion in alleged contravention of U.P. Sub-Inspector and Inspector (Civil Police) Service Rules 2008 as well as the instructions issued in this regard, for the O.B.C. Category.
5. The alleged inclusion of candidates who had used Whitener in the O.M.R. Sheets, allegedly in contravention of the judgment of this court in the Case of Saket Kumar & ors. v. State of U.P.
6. The number of O.B.C. and other reserved category candidates who were called for recruitment under the unreserved category based on their merit, bereft of reservation, and its effect on the application of reservation, to the recruitment in the light of the dictum of a Constitution Bench of the supreme court in the case of R.K. Sabbarwal v. State of Punjab, 1995 SCC (2) 745.
7. Whether any prejudice is being caused to the petitioners assuming the aforesaid infractions, apart from the alleged illegalities.
8. Subject to the locus standi of petitioners, as referred above, the validity of the G.O. Dated 25.3.1994 and the application of the judgment of the Supreme Court rendered in the case of Jitendra Kumar v. State of U.P., 2010 3 SCC 119.
The parties have exchanged their pleadings which have been perused. They have also filed written arguments which have also been perused. The parties were heard at length. Interveners and those seeking impleadment have also been heard through their counsel. As the stand of applicants seeking intervention or impleadment is the same as that of the official opposite parties, therefore, all such applications are disposed of with such right of hearing.
Point No. 1:
Locus standi of the petitioners to maintain this writ petition challenging the criteria of recruitment after having participated in the selection process, specially the challenge to the government order dated 25.3.1994.
The contention of the respondents herein is that the petitioners having participated in the selection in question unsuccessfully cannot turn around and challenge the same in view of the law declared by the Supreme Court in the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla reported in 1986 (suppl) SCC 285; Chandra Prakash Tiwari vs. Shakuntala Shukla reported in (2002) 6 SCC 127; H.C. Pradeep Kumar Rai and others vs. Dinesh Kumar Pandey and others, (Civil Appeal No. 6549 of 2014) nor can they challenge the Government order dated 25.03.1994 as the same was in existence and was applicable to the recruitment in question prior to their appearing in the same but was not challenged by them earlier. In this regard they also relied upon the judgment of the Supreme Court in the case of Jitendra Kumar Singh and another vs. State of U.P. and others reported in (2010) 3 SCC 119 as far as validity of paragraph 4 of the said Government order was concerned.
The petitioners on the other hand contend that considering the grounds on which the select list is being challenged, as, they relate to the manner in which the selection had been held in violation of the relevant Service Rules namely; U.P. Sub Inspectors and Inspectors (Civil Police) Service Rules, 2008 and the terms and conditions of recruitment contained in the Instructions Manual, as also other statutory provisions applicable to the selection, even a participant can challenge the same.
Having heard the parties and perused the record, the court finds that the petitioners have not challenged the criteria of selection as mentioned in the Service Rules, 2008 nor the terms and conditions of recruitment mentioned therein or in the Instructions Manual or in the advertisement. The petitioners have challenged the manner in which the selection has been held allegedly in violation of the said Service Rules, 2008, Instructions Manual as also the law declared by the Courts.
The decisions relied upon by the respondents to assail the maintainability of these writ petitions to assert absence of locus standi of the petitioners in this regard apply in cases where participants raise a challenge to a rule, criteria or procedure known to them prior to appearing in such selection and where the selection, based thereon, is challenged. This is not the case here. To illustrate, the petitioners inter-alia are aggrieved by the manner in which horizontal reservation has been applied while preparing the select list contrary to the Service Rules, 2008, clause 3.3(3) of the Instructions Manual and the law laid down by the courts. They are aggrieved by the application of rounding off marks without there being any provision for the same in the Service Rules, 2008 or in the Instructions Manual. They are aggrieved by selection of unqualified and ineligible persons contrary to the Rules. They are aggrieved by calling of more than three-times candidates for the purpose of Group-discussion in violation of Rule 15(f) of the Service Rules, 2008 and Clause 2.7 of the Instructions Manual. They are aggrieved by lack of transparency and fairness in the selection. They have also challenged the correctness of answers to questions. They have alleged violation of Articles 14 and 16 of the Constitution as well as Service Rules, 2008 etc. Many of the illegalities are alleged to have come to their knowledge only after the result of the selection was declared such as, those relating to application of horizontal reservation, rounding off the marks, manner of preparation of selection list etc. These are the grounds on which even a participant to a selection can challenge the same and there is no question of estoppel or acquiescence as there is no challenge to the procedure or criteria already prescribed. The challenge in fact is to the manner in which the selection has been held in violation of settled criteria or procedure.
In this regard reference may be made to the judgment of the Supreme Court in the case of Raj Kumar and another vs. Shakti Raj and others reported in (1997) 9 SCC 527 wherein after considering the earlier decision of the Supreme Court in the case of Madan Lal vs. State of Jammu & Kashmir reported in (1985) 3 SCC 486 and other decisions referred therein including some of those relied by the respondents, the Supreme Court observed that the Government had committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, so also in the method of selection and exercise of power in taking out from the purview of the Board and also conduct of selection in accordance with the Rules, therefore, the principle of estoppel by conduct and acquiescence had no application to the facts in the said case.
As far as the challenge to the Government order dated 25.03.1994 is concerned the maintainability of the writ petition at the behest of petitioners in this respect shall be considered while considering point no.8.
For the reasons aforesaid point no.1 (excluding challenge to Govt. order dated 25.03.1994) is decided in favour of petitioners and against the respondents.
Point No.2 The permissibility of rounding off the percentage of marks for the purpose of eligibility for the main written examination, based on the marks secured in the preliminary examination, in the light of the pronouncement of the Supreme Court reported in (2011) 8 SCC 108.
In this regard contention of the petitioners was that under Rule 15(f) of the Service Rules, 2008 and clause 2.5 of the Instructions Manual 50% minimum marks were prescribed as a benchmark for being successful in the preliminary written examination and there was no provision for rounding off such marks, therefore, the Board exceeded its authority in doing so and acted in violation of statutory provisions.
The contention of the official respondents on the other hand was that there was no provision in the Rules to the contrary thereby prohibiting such rounding off, secondly, as has been mentioned in the written arguments, a minimum of eighteen-times candidates vis-a-vis number of vacancies were to be selected on the basis of the preliminary written examination whereas without rounding off, the said number was only about nine-times, therefore, considering the aforesaid, the Board vide its resolution dated 28.12.2012 and 15.01.2013 decided to round off the marks to two decimal points and based on such rounding off declared the candidates successful. This decision was not taken before holding of the selection but after holding the said examination when it was found that total successful candidates were only nine times of the vacancies, whereas, required minimum was eighteen-times of vacancies. It was also contended that in the case of some of the petitioners also, the marks were rounded off. The petitioners never raised this objection when the result of the said examination was declared. The said examination was only of a preliminary qualifying nature. Benefit of rounding off marks was extended to all the candidates unanimously and not to only few. No prejudice was caused to the petitioners.
The recruitment Board admittedly resorted to rounding off the marks obtained in the pre-qualifying examination. The question is whether such rounding off was permissible and is it sustainable in law.
As already mentioned the terms of recruitment were contained in the Service Rules, 2008 and the Instructions Manual, a copy of which is annexed as part-II of Annexure No.2 to the writ petition. Rule 15(d) of the Service Rules, 2008 reads as under:-
"15(d). Preliminary Written Test:-
The candidates who are declared successful in the Physical Standard Test under Clause (c) shall be required to appear an objective type/Preliminary Written Test of qualifying nature. This test shall carry 200 marks.
It shall comprise three sections, namely General Knowledge (Current Affairs, History, Geography, Constitution of India, Freedom Struggle etc.) of 100 marks, Numerical Ability Test of 50 marks and Reasoning of 50 marks. The candidates who secure a minimum fifty percent marks in the said test shall be declared successful."
In view of the above Rule, out of 200 marks prescribed for preliminary written examination, a candidate had to secure minimum 50% marks in order to be successful and to be eligible for appearing at the next stage of selection i.e. Physical Efficiency Test.
Clause 2.5 of the Instructions Manual reads as under:-
"प्रारंभिक लिखित परीक्षा - प्रारंभिक लिखित परीक्षा अहर्कारी होगी न्यूनतम ५० प्रतिशत अंक प्राप्त करने वाले अभ्यर्थी ही इस परीक्षा में सफल घोषित किये जाएंगे 1इन सफल अभ्यर्थियों में से प्राप्तांकों की श्रेष्ठता के आधार पर रिक्तियों की संख्या के अधिकतम 18 गुना अभ्यर्थी ही शारीरिक दक्षता परीक्षा में सम्मलित होने के लिए अहर्य होंगे1 प्रारंभिक लिखित परीक्षा का पाठ्यक्रम (निर्देश पुस्तिका बिंदु ४.१) निर्देश पुस्तिका में अंकित है1 यह परीक्षा वस्तुनिष्ठ प्रकार की २०० अंकों की होगी जिसमे निम्नलिखित तीन खंड होंगे1 (१) सामान्य ज्ञान -१०० अंक (२) संख्यात्मक योग्यता परीक्षा - ५० अंक (३) तार्किक परीक्षा -५० अंक "
Clause 2.5 of the Instructions Manual also speaks of a minimum 50% marks being the cut off for qualifying the preliminary written examination. It also states that a maximum number of successful candidate to the extent of eighteen times the number of vacancies alone shall be eligible for appearing in the physical efficiency test based on merit obtained in the preliminary examination.
On a bare reading of the aforesaid provisions it is evident that rule 15(f) and clause 2.5 of the Instructions Manual prescribe a minimum of 50% marks, out of 200, as the benchmark. The provisions of the Rules and the Instructions Manual in this regard are unambiguous. The Service Rules, 2008 having been made under Section 46 (3) read with Section 2 of the Police Act, 1861, ergo, they have statutory character and are binding upon the respondents also. The rules do not contain any provision of rounding off the marks. They do not confer any power on the recruitment Board to round off the marks nor does the Instruction Manual.
In view of the aforesaid factual scenario the decision of the Board to round off the marks is apparently in the teeth of the statutory provisions and is not sustainable in law. Reference may be made in this regard to the decisions of the Supreme Court in the case of Orrisa Public Service Commission vs. Roopashree Chowdhary reported in (2011) 8 SCC 108 and Registrar, Rajeev Gandhi University of Health Sciences, Bangalore vs. G. Hemlatha reported in (2012) 8 SCC 568 and the West Bengal Joint Entrance Examination Board & others vs. Sarit Chakraborty reported in J.T. 2015(2) SC 220 which support the view being taken by the court herein. In Roopashri Chowdhary (supra), after distinguishing the earlier judgments pertaining to rounding off on the ground that those decisions related to rounding off of posts which obviously could not exist in a fraction, their Lordships in paragraph 10 and 13 of the report held that when statutory rule itself prescribed the minimum marks to be obtained there cannot be a question of relaxing or rounding off in the absence of any rule permitting the same. In the instant case the respondents have not referred to any rule permitting such relaxation or rounding off.
In G. Hemlatha (supra) the examination in question was of a qualifying nature, as in this case, and their Lordships in paragraph 12 of the judgment held as under:
"No provision of any statute or any rules framed thereunder have been shown to us, which permit rounding-off of eligibility criteria prescribed for the qualifying examination for admission to the PG course in M.Sc. (Nursing). When the eligibility criteria is prescribed in a qualifying examination, it must be strictly adhered to. Any dilution or tampering with it will work injustice on other candidates. The Division Bench of the High Court erred in holding that the learned Single Judge was right in rounding-off 54.71% to 55% so as to make Respondent 1 eligible for admission to the PG course. Such rounding-off is impermissible."
In view of above, the contention of respondents that the examination was only of a qualifying nature and the petitioners, all of whom had qualified, they were not prejudiced in any manner, is misconceived. what is the relevant is the im-permissibility of such action in law. The opposite parties have missed the woods for the trees. As a consequence of rounding off by the Board in the teeth of statutory rules ineligible persons were allowed to appear in the selection, many of whom are said to have been selected finally, as is mentioned in the rejoinder affidavit of the petitioners dated 13.12.2015, Annexure No. R.A.1 thereto. As observed in G. Hemlatha (supra) any dilution or tampering with respect to eligibility criteria/cut of marks will work injustice on other candidates. When an eligibility criteria is prescribed it must be strictly adhered. The Board acted in excess of its jurisdiction.
The justification for such action as put forward in the counter affidavit and the written arguments of the respondents is quite misleading and false as there is no such requirement either in rule 15(d) or in clause 2.5 of the Instruction Manual that a minimum of candidates eighteen-times the vacancies are required for further consideration, based on the preliminary written examination. The word used in Clause 2.5 is 'maximum' of eighteen-times and not 'minimum', that too, from those selected on the basis of the cut off percentage of marks of 50%, not otherwise. Thus, the successful candidates who were nine-times the number of vacancies were sufficient as per Rule 15(d) read with clause 2.5 of the Instructions Manual and there was no valid justification for rounding off marks, based on such reasoning.
The prescription of minimum marks in Rule 15(d) of the Service Rules, 2008 and clause 2.5 of the Instructions Manual clearly prohibited rounding off, therefore, assertion to the contrary is again misleading and false.
As far as rounding of the marks of some of the petitioners is concerned, all of them had secured minimum 50% of the marks and the total number of successful candidates being less than eighteen times (9 times) the vacancies, all of them were entitled to appear in the next selection, therefore, the rounding off, in their case, was superfluous and inconsequential. Rounding off marks in the case of others who had secured less than 50% marks allowed ineligible person to appear at the next stage of selection contrary to Rules thereby vitiating the selection. Those who had secured less than 50% marks in the Preliminary Written Test are liable to be excluded from consideration for selection/appointment.
Point No.3 Applicability of horizontal reservation for women, dependents of Freedom Fighters and Ex-servicemen in the selection.
In this regard the petitioners contention was that instead of applying horizontal reservation category-wise (unreserved category, scheduled caste, scheduled tribes and other backward classes) the respondents put all the candidates selected on the basis of horizontal reservation in the unreserved category. None of them were placed in the reserved categories, which was clearly in violation of Section 3(3) of the U.P. Public Services (Reservation of Dependents of Freedom Fighter, Physically handicapped and Ex-Servicemen) Act, 1993 as also Articles 14 and 16(1) of the Constitution of India and the law declared by the Supreme Court in the case of Indira Shahney vs. Union of India and others reported in AIR 1993 (3) 427 (paragraphs 430,513,514,733 and 742) and para 3.3 of the Instructions Manual.
In this regard they have also stated that this issue, pertaining to this very selection, has already been considered by a Coordinate Bench of this Court in Writ-A No. 37599 of 2015 (Ashish Kumar Pandey and others vs. State of U.P. And others) and connected writ petitions wherein, the manner in which horizontal reservation was applied in the selection in question, has been held to be illegal and the selection has been quashed on this ground alone. In the said case it has also been held that women reservation which is also a horizontal reservation had also been applied illegally. As noted earlier, the judgment in Ashish Kumar Pandey (supra) has been upheld by the Division Bench on the issue aforesaid.
On the other hand respondents' contention is that the application of horizontal reservation to the selection in question does not suffer from any illegality. Unreserved category seats for horizontal reservation were required to be first saturated before filling seats of scheduled caste, scheduled tribes and other backward classes, as, if this was not done, then the candidates of scheduled caste, scheduled tribes and other backward classes obtaining higher marks than unreserved category candidates claiming horizontal reservation may not be selected, as had happened in Constable Recruitment of 2013. The merit list prepared for horizontal reservation applies to the unreserved category also, as much as it applies to the other categories. As in the matter of vertical reservation, so also in the case of horizontal reservation, meritorious candidates, even if, belonging to reserved category are entitled to be included in the merit list of unreserved category if they fulfill the benchmark. The respondents have placed reliance upon the judgment of the Supreme Court in the case of Anil Kumar Gupta vs. State of U.P. reported in (1995) 5 SCC 173, especially on paragraphs 18 and 20 thereof. It was also contended that open competition category i.e. unreserved category, even in the matter of horizontal reservation, is not meant for upper caste alone but all candidates who have applied are to be considered in this category, therefore, it includes scheduled caste, scheduled tribes and other backward classes candidates also. In this regard the respondents placed reliance on paragraph 20 of the judgment in the case of Anil Kumar Gupta (supra) as also the judgment of the Supreme Court in the case of R.K. Subbarwal vs. State of Punjab reported in (1995) 2 SCC 745 It was contended that first of all the candidates successful on the basis of horizontal reservation were put in unreserved category and as their percentage was less than the maximum permissible limit under the said category, therefore, they were all included in the select list of unreserved category and the occasion to shift them or adjust them under other categories did not arise. It was denied that women, ex-servicemen etc. had been placed in the unreserved category/open category en-mass. Out of 740 posts reserved for women, 370 fell in the open/unreserved category, 165 in scheduled castes category, 15 in scheduled tribes and 200 in other backward classes category. According to them the State filled up only 260 vacancies under women quota out of 370 available vacancies in open/unreserved category. It was also contended that horizontal reservation, after Division Bench judgment in the case of Rajeev Kumar again which [Special Leave Petition (Civil) No. 32344 of 2014] which was dismissed by the Supreme Court in the year 2015, is compartmentalized application of horizontal reservation and not an over all reservation. The application of horizontal reservation does not lead to 50% limit in vertical reservation being exceeded.
This question has already been considered by a Coordinate Bench in Ashish Pandey's case (supra) decided on 16.03.2016 wherein application of horizontal reservation has already been held to be in contravention of the Act, 1993, Government order dated 26.02.1999( Women reservation) and 09.01.2007, as also the pronouncements of the Supreme Court and this Court. Based thereon the selection in question has already been quashed with a direction to the State to re-draw the select list in the light of the observations/directions contained therein. Against the said judgment a Special Appeal had been preferred by the State which has been dismissed, as noted earlier.
As already stated above, the terms of recruitment in question were to be regulated by the Service Rules, 2008. Rule 6 thereof, inter-alia, provides that horizontal reservation shall be in accordance with the Act, 1993 as amended from time to time and the orders of the Government at the time of recruitment in force. Rule 29 provides that nothing in this rule shall effect reservation and other concessions required to be provided for the candidates belonging to scheduled castes, scheduled tribes and other special categories of person in accordance with the orders of the Government issued from time to time in this regard. Section 3 of the Act, 1993 reads as under:-
"3. Reservation of vacancies in favour of physically handicapped etc. [(1) There shall be reserved at the stage of direct recruitment.--
(i) in public services and post two per cent of vacancies for dependents of freedom fighter and one per cent of vacancies for ex-servicemen;
(ii) in such public services and posts as the State Government may, by notification, identify one per cent of vacancies each for the persons suffering from.--
(a) blindness or low vision;
(b) hearing impairment; and
(c) loco-motor disability or cerebral palsy] (2) Omitted 31.07.1997.
(3) The persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments; if he belongs to other Backward Classes of citizens category, he will be placed in that quota by making necessary adjustments. If be belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustment; if he belongs to (other Backward Classes of Citizens), category, he will be placed in that quota by making necessary adjustment. Similarly, if he belongs to open competition category he will be placed in that category by making necessary adjustments.
(4) Omitted 31.07.1997.
(5) Where, due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled it shall be carried over to the next recruitment."] Sub section 3 of Section 3 of the Act, 1993 clearly indicates that horizontal (special) reservation shall be made for the aforesaid three categories of candidates namely dependents of freedom fighter, physically disabled and Ex-servicemen category, by placing them in the appropriate categories to which they belong i.e. other backward classes category, scheduled castes and scheduled tribe and open competition category (General category).
As far as women reservation is concerned, the same is governed by the Government orders dated 26.02.1999 and Government order dated 09.01.2007. Women reservation is also horizontal/special reservation.
In the case of Public Service Commission vs. Mamta Bishth and others reported in AIR 2010 SC 2613 the Supreme Court repelled the contention that a women candidate belonging to Uttranchal, as she had secured higher marks than the last women candidates in the unreserved/open competition category, was entitled to be placed in the latter category, even though she had been selected by horizontal reservation for Uttranchal women. It also observed that the High Court erred in allowing the writ petition only on the ground that horizontal reservation is also to be applied as vertical reservation in favour of reserved category candidate. It reiterated the law laid down in Rejesh Kumar Daria vs Rajasthan Public Service Commission reported in AIR 2010 SC 3127 wherein it was observed as under:-
"Para.(13)..........The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non- reserved posts and if they are appointed to the non- reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney(AIR 1993 SC 477: 1992 aIRSCW 3682); R.K. Sabharwal v. State of Punjab (AIR 1995 SC 1371: 1995 AIR SCW1371); Union of India v. Virpal Singh Chauhan (AIR 1996 SC 448:1995 AIR SCW 4309) and Ritesh R. Sah vs. Dr. Y.L. Yamul, (AIR1996 SC 1378:1996 AIR SCW 986). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women."
Considering the aforesaid enunciation of law by the Supreme Court a Coordinate Bench of this Court in the case of Ashish Kumar Pandey held as under:-
"It was, therefore, mandated that upon adjustment/accommodation if the special category candidate belonging to OBC category scored higher marks than his/her counterpart adjusted in open category, cannot be shifted to open category. Shifting would tantamount to vertical reservation which is impermissible and alien to the concept of horizontal reservation. Horizontal reservation cut across vertical reservation, therefore, there is no concept of 'merit' while making adjustment/accommodation."
The decision in Ashish Pandey's case (supra) has been affirmed by a Division Bench of this Court in Special Appeal, relevant extract of its judgment is quoted hereinbelow:-
"While applying the principle of Horizontal Reservation, category has a role to play as at the point of time when Horizontal Reservation is to be pressed, then based on merit candidates in question are to be adjusted in their respective category and the male candidates, who are at the bottom of the list as per the merit, will have to make place for women candidate. A candidate, who has proceeded to make an application for the purposes of Horizontal Reservation under the OBC/SC/ST category, cannot be permitted to change his/her category, whereas in Vertical Reservation once your are selected, on merit, such a change is permissible by operation of law and in view of this, once such is the factual situation that is so emerging that all the candidates once they have specified their category in reference of Special Reservation, then they have to be adjusted in their respective categories and the reserve category candidate cannot ask for placement against open category by claiming that they have higher merit, inasmuch as, only in the matter of Vertical Reservation, merit has a role to play wherein the list is finalized but at the point of time when for providing Horizontal Reservation adjustment is to be made, then various adjustments is required to be done as per the formula that has been approved and ratified by the Apex Court that in the matter of horizontal reservation, adjustment would be made by making appropriate placement in appropriate categories. Apex Court was conscious of this fact, that such a provision may be subjected to misuse and accordingly, position was sought to be clarified by giving examples and then providing that if horizontal reservation is not satisfied, the requisite number of special reservation candidate has to be taken and accommodated/adjusted against their respective social reservation categories. Sub-section (3) of Section 3 of U.P. Act No.4 of 1993 provides for horizontal reservation to be applied accordingly, Application of horizontal reservation in this prescribed manner maintains the merit of special reservation quota candidate alongwith their representation in service, in view of this, the Learned Single Judge is absolutely right at the point of time when he has proceeded to criticise the State Government for taking such a stand and for adhering to a procedure that was not at all prescribed in law and thus crossing the limit of reservation of 50%, in view of this, the order passed by Learned Single Judge does not deserve interference on this aspect of the matter. "
In view of dictum of the Supreme court in the case of Mamta Bishth (supra) and the Coordinate Bench judgment as delivered by the Division Bench referred to hereinabove, apparently the respondents have wrongly applied horizontal reservation in the selection in question. They have applied it in the same manner as vertical reservation by shifting the reserved category candidates selected on the basis of horizontal reservation to open category which is impermissible.
Section 3(3) of Act, 1993 and clause 2.5(ii) very categorically provide that each candidate selected on the basis of horizontal/special reservation is to be placed in the category of vertical reservation to which he belongs i.e. open/unreserved category, OBC, SC, ST. In the instant case it was not open to the Board to place all such candidates en mass in one category i.e. open/unreserved category, ignoring their respective categories, as, the principle of merit as applicable in vertical reservation is not applicable to horizontal reservation as held in Mamta Bishth case (supra). It was also impermissible in view of sub-Section 3 of Section 3 of the Act, 1993.
Thus, in nut shell the Supreme Court in Mamta Bisht (supra) held that the principle of adjustment of candidates belonging to category of OBC, SC, ST selected on their own merit to the open/unreserved category shall not apply to horizontal reservation. Therefore,dependents of freedom fighter, ex-servicemen, physically disabled belonging to OBC, SC, ST selected on their own merit within the vertical reservation, will not be counted in the open/unreserved category for purpose of special/horizontal reservation but will be counted against their category of horizontal reservation. In view of this dictum the very edifice of the argument advanced by the respondents on this issue as has been noted hereinabove, falls to the ground.
Reference may also be made in this regard to the case of Indira Sawhney etc.etc. vs. Union of India and others reported in AIR 1993(1) SC 477, paragraph 95 of the judgment which reads as under:-
"There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservation in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4) may be called vertical reservations whereas reservations in favour of physically handicapped (under clause (1) of Article 16) can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations-what is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. Category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains-and should remain-the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure."
As far as reliance placed by the respondents on the judgment of the Supreme Court in the case of Anil Kumar Gupta (supra) is concerned specially paragraph 18 thereof, a perusal of the said para reveals that the observation that "proper and correct course is to first fill up open category quota of 50% on the basis of merit (vertical reservation) then fill up candidates of social reserved quota, scheduled caste, scheduled tribes and other backward classes (vertical reservation), thereafter to find out how many candidates belonging to special reservation have been selected on the above basis and if quota fixed for horizontal reservation is already satisfied, in case it is over all horizontal reservation, no further question arises, but, if it is not so satisfied the requisite number of special reserved candidates shall have to be taken and adjusted/accommodated against their respective social reserved category by deleting corresponding number of candidates therefrom. If however, it is a case of compartmentalized horizontal reservation the process of verification and adjustment/accommodation as stated above should be applied separately to each reservation," it is the latter part of the above quoted para which applies in this case and not the former, as, horizontal reservation in this case, is to be applied compartmentally.
In Anil Kumar Gupta (supra) also while interpreting the circular dated 17.10.1994 the Supreme court held as under:-
"Providing special reservation, Court observed that the revised notification "contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the OC quota" therefore, the Court admonished the respondents observing "the respondent will be advised to keep in mind the admonition administered by this Court and ensure that the special reservation (horizontal reservations) are kept at the minimum".
Thus, candidates selected on the basis of horizontal reservation could not be adjusted entirely in the open category. The Supreme Court admonished the concerned for contributing to the situation where entire special/horizontal reservation quota had been adjusted/accommodated almost exclusively against the open quota. Thus, the said judgment far from helping the respondents' case it helps the petitioners case. The respondents have clearly erred in applying horizontal reservation. They have to apply horizontal reservation in the light of the observations/directions contained in this judgment and in Ashish Pandey (supra).
Point No.4 The calling of more than three times candidates for the purposes of group-discussion in alleged contravention of U.P. Sub-Inspector and Inspector (Civil Police) Service Rules 2008 as well as the instructions issued in this regard, for the O.B.C. Category.
As per rule 15 (f) of the Rules 2008 number of candidates (three-times the number of vacancies) were to be selected in the main written examination for the purpose of being called for Group Discussion. The total number of vacancies being 4010 a total number of 12030 candidates were required to be selected in the main written examination, for Group Discussion. It is indisputable that as against this figure of 12030 a total number of 14243 candidates i.e. 2213 candidates in excess, were declared successful and called for Group Discussion. This, according to petitioners, was in violation of rule 15(f) of the Rules, 2008. It is also contended by them that at least 191 out of the excess candidates were ultimately selected which was again de-hors the Rules.
The explanation given by the opposite parties for this transgression is that if only three-times the number of candidates vis-a-vis available vacancies were called then the last candidate of OBC category who had secured 294.6667 marks would not have been called for Group Discussion, though, marks secured by last unreserved category was only 208.25 meaning thereby even having secured higher marks, the OBC category candidates would not have been called which would have been unreasonable specially as reserved categories are also entitled to compete for open category posts. It is denied by the opposite parties that any of the excess candidates has ultimately been selected in the final select list. The opposite parties have relied upon the judgment of the Supreme court in the case of Pradeep Kumar vs. Dinesh Kumar (Special appeal No. 6549 of 2003) The opposite parties have furnished the following table giving factual details of marks at the main written examination stage:-
S.No. Category No. of vacancies The required three time no.
no. of available candidates Cut-off marks of last available candidate as per three times the required vacancies The marks of last such candidate seselected 1 Unreserved (Gen) 2005 6015 5039 208-25 208-25 2 O.B.C. Category 1082 3246 7959 294-6667 211-00 3 S.C. Category 843 2529 1220 208-00 208-00 4 S.T. Category 80 240 25 226-4167 226-4167 Total 4010 12030 14243 It is also contended by the petitioners that the policy of reservation is not applicable at this stage of selection based on main written examination under rule 15(f). It is applicable only at the stage of preparation of tentative select list under rule 15(h) of the Rules 2008.
Rule 15(f) reads as under:-
"15(f) Main Written Examination.- The candidates who are declared successful in the Physical Efficiency Test under clause (e) shall be required to appear in the main written examination which shall carry 400 marks in the following subjects-
Subject Maximum Marks
1. General Hindi Hindi Essay 75 marks 25 marks
2. Basic Law and Constitution 100 marks (objective type)
3. Numerical and Mental Ability Test 100 marks (objective type)
4. Mental Aptitude Test/I.Q.Test/Reasoning 100 marks (objective Type Note- The procedure for conducting written examination shall be such as prescribed in Appendix-3.
The candidate who fails to obtain minimum fifty percent marks in each subject shall not be eligible for recruitment. The Board shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and others under Rule 6, prepare a list of successful candidates on the basis of marks obtained by them in the Main Written Examination, the entire list along with marks obtained per subject along with answer key would be displayed on the Board's website immediately. The number of candidates to be selected in the main written examination shall be three times the number of vacancies."
A perusal of rule 15(f) shows that Board is required to prepare a list of successful candidates on the basis of marks obtained by them in the main written examination "having regard to the need for securing due representation of the candidates belonging to SC/ST and others under rule 6". Rule 6 of the Rules 2008 inter-alia provides for reservation for the candidates belonging to SC/ST/OBC. Thus, the contention of the petitioner that reservation will apply only at the stage of preparation of 'tentative select list' under section 15(h) and not at the stage of preparing the select list based on the main written examination, is incorrect. On a bare perusal of rule 15(f) it is evident that the policy of reservation is also to be applied at the stage of preparing the select list based on the main written examination.
Section 3(6) of the U.P. Public Service (Reservation for SC/ST/OBC) Act, 1994 which provides that if a person belonging to any of the categories mentioned in sub section (1) got selected on the basis of merits in open competition as general candidate he shall not be adjusted against the vacancies reserved for such category (vertical reservation) under sub section (1), will also apply at this stage. Sub section (1) provides various categories of reservation for SC/ST/OBC as also the percentage of such reservation which is 21%, 2% and 27% respectively.
The issue as to at which stage Section 3(6) will apply came up for consideration before a Division Bench of this Court in Special Appeal No. 310 of 2015 (U.P. Power Corporation Ltd. And another vs. Nitin Kumar and others). In the said case at the stage of written examination the recruiting commission prepared the select list category wise meaning thereby one who had applied in reserved category was put in the select list of that category, irrespective of the fact that based on his merit he was qualified to be in unreserved/open category in view of Section 3(6). Thus, the OBC category candidates who had secured higher marks than the lower marks secured by the last candidate from unreserved category, were not selected. Being aggrieved the OBC category candidate filed a writ petition which was allowed by a Single Judge Bench of this Court. The Single Judge opined that such candidates were entitled to compete against unreserved vacancies/posts solely by virtue of their higher merits and their consideration could not be confined to the category to which they belong. The OBC candidate who had secured lower marks than such candidates would have to be adjusted against the seats reserved for such category. In appeal the Division Bench affirmed the judgment of Single Judge. It relied upon another Division Bench Judgment in Sanjeev Kumar Singh vs. State of U.P. reported in 2007(2) ADJ 150 which was followed by another Division Bench in Shiv Prakash Yadav vs. State of U.P. reported in 2008 AWC 1391. It also relied upon the decision of the Supreme Court in the case of Andhra Pradesh Public Service Commission vs. Baloji Badhavath reported in (2006) 4 SCC 550. The Division Bench in Nitin Kumar (supra) held as under:-
"Section 3(6) is a statutory recognition of the principle that if a candidate belonging to a reserved category is selected on the basis of merit in open competition with general candidates, such a candidate is to be adjusted not against the vacancies reserved for the reserved category to which the candidate belongs but against the unreserved seats. This proceeds on the foundation that where a candidate is meritorious enough to be placed within the zone of selected candidates independent of any claim of reservation and purely on the basis of the merit of the candidate, the candidate ought not to be relegated to a seat against the reserved category. The simple reason for this principle is that reservation is a process by which a certain number of posts or seats is carved out for stipulated categories such as OBC, Scheduled Castes and Scheduled Tribes. Unreserved seats do not constitute a reservation for candidates belonging to categories other than the reserved categories. An unreserved post or seat is one in which every individual irrespective of the category to which the person belongs can compete in open merit. Hence, the principle which is embodied in Section 3 (6) is not confined in its application only at the stage when the final select list is to be drawn up. If the submission of the appellants were to be accepted, that would result in seriously absurd consequences. As the learned Single Judge noted, in the present case itself, the petitioners who belong to the OBC category had in fact secured higher marks in the written test than the last short-listed candidate from the unreserved category. However, they were sought to be excluded from short-listing for the unreserved posts only on the ground that as a candidate who had declared himself or herself to be of a reserved category, that candidate would have to be excluded from shortlisting from the unreserved category even if on the basis of the position in merit, such a candidate would otherwise fall in the list of short-listed candidates in the open or unreserved category. Such a consequence would not be permissible in law."
Thus it was held that Section 3(6) applied at the stage of written examination (shortlisting) also.
A similar view was taken by a Coordinate Bench of this Court in the case Narendra Pratap Singh & others vs. Director General of Police U.P. & others reported in [2002 (3) UPLBEC 2304], which was a case relating to Police Recruitment. It was also held that the benefit of Section 3(6) of the Act, 1994 would be available even to those who had availed concession or relaxation under Section 3(8) or had applied under the reserved category. Narendra Pratap Singh (supra) stands affirmed by the Supreme Court in Jitendra Kumar (supra).
Viewed on the anvil of the aforesaid exposition of Section 3(6) of Act, 1994 as also the Instructions Manual the Court finds that the standard of evaluation for the SC/OBC in the physical standard test, preliminary written test, physical efficiency test, main examination and Group discussion were all along the same. However, the rules also indicate that as far as scheduled tribe(ST) candidates were concerned a lesser standard was prescribed for them in physical standard test vis-a-vis others, as, against the minimum physical standard height for male candidates belongs to General, OBC and SC, it was 168 Cms. whereas only 160 Cms. was prescribed for ST. Likewise in the measurement of chest as against 79 Cms for the former, 77 Cms and 82 Cms. were prescribed for ST. Likewise the same differential standard was prescribed in respect of female candidates of ST. Even though, physical standard test was of only qualifying nature but the fact is that ST candidates were treated differently than other categories therefore, they were not entitled to the benefit of Section 3(6) of the Act, 1994 but there is no doubt that SC and OBC candidates were considered on the same parameters as general candidates. This is evident from rule 15(c), (d), (e), (f) and (g) read with Appendix I, II, and III, therefore, based on the aforesaid analogy the SC and OBC who had secured higher marks than the last candidate of general category candidates were liable to be considered and included in the select list of said category and not the reserved category. The SC and OBC candidates who had secured lesser marks than them were liable to be included in the select list of SC/OBC category.
The use of the word three-times of number of vacancies in rule 15(f) of the Rules, 2008 by itself does not mean that reservation or section 3(6) was not to be applied at that stage. It does not prohibit the break-up of vacancies category-wise and calculating candidates three times such vacancies accordingly, subject to application of Section 3(6) as aforesaid. Had this been done there would have been no occasion to select candidates in excess of three times the number of vacancies and sufficient number of candidates would have been available for all the categories. It is trite that there is no reservation for general category and all candidates are entitled to compete against posts of general category as far as vertical reservation is concerned. This issue has also been dealt with extensively while considering point no. 8 relying upon the judgment of the Supreme Court in the Jitendra Kumar (supra).
In view of the above discussion calling of candidates in excess of three-time the vacancies for the purpose of Group Discussion was violative of Rule 15(h) and the explanation offered by the opposite parties in this regard is unacceptable. Those in excess of the maximum permissible limits referred above, after the fresh exercise as aforesaid, are to be ousted from further consideration for selection.
In the event as a result of the aforesaid it was found that considerable number of members of the reserved category were being selected against general seats/post or all the general category posts were being occupied by reserved category it would be a cause to review the application of the reservation policy as observed by the Supreme Court in the case of R.K. Subbarwal vs State of Punjab reported in (1995) 2 SCC 745 wherein the constitution Bench inter-alia observed that "the fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class".
Point no.4 is decided accordingly.
Issue No.5:
The alleged inclusion of candidates who had used Whitener in the O.M.R. Sheets, allegedly in contravention of the judgment of this court in the Case of Saket Kumar & ors. v. State of U.P. This issue has been concluded by the decision of the Supreme Court dated 19.01.2016 rendered in Civil Appeal No. 587-588 of 2016 whereby the judgment of a Coordinate Bench of this Court ousting those who had used whitener/blade from the select list, which had been affirmed by the Division Bench, has been impliedly set aside with the observation that the advisory note given by the Selection Board cannot be treated as a rule to declare such candidate who have used whitener/blade in the relevant block in the OMR/Answer sheet as ineligible for evaluating their answer sheets, and finding this proposition to be in conformity with the Recruitment rules disposed of the appeals in terms of the statement of the learned Advocate General representing the respondent-State of U.P. on the basis of instructions received from the Principal Secretary Home and the legal submissions referred by him in the judgment.
Needless to say that such candidates who used whitener/blade would be eligible for consideration in terms of the judgment of the Supreme Court and there is nothing left to be considered by this Court except that the petitioners have raised the grievance that 158 candidates over and above 810 mentioned before the Supreme Court find place in the select list. It has been answered by the respondent by stating that these 158 candidates had secured less than 50% marks in the main written examination and they have not been called for Group-discussion. Out of those who had used whitener only 810 candidates qualified in Group discussion and were declared finally selected in March 2015. Thus, this issue is covered by the judgment of the Supreme Court which the State is bound to adhere. It is decided accordingly.
Issue No.6:
The number of O.B.C. and other reserved category candidates who were called for recruitment under the unreserved category based on their merit, bereft of reservation, and its effect on the application of reservation, to the recruitment in the light of the dictum of a Constitution Bench of the supreme court in the case of R.K. Sabbarwal v. State of Punjab, 1995 SCC (2) 745.
On this issue the petitioners have relied upon Section 3(6) of the Reservation Act, 1994 and stated that when a candidate applies for recruitment for selection on specific post he has to mention the category. The said category confers various privileges upon the candidate which disturbs the "level playing field" of selection. According to them 598 OBC and 47 Scheduled caste candidates have been selected against unreserved or general category. There is an obligation upon the State to ascertain that whether there is adequate representation of reserve categories on the points in question or not. If it finds that they are already adequately represented there is no need for applying reservation but no such enquiry has been conducted to show that reserve category candidates were not adequately represented in the normal course of things.
In this regard it has been submitted by the opposite parties that in the selection in question only 723 reserve category candidates were selected against unreserved post on their own merits for the post of Sub Inspector Civil Police whereas 20 O.B.C. Category candidates have qualified accordingly for the post of Platoon Commander. With regard to Scheduled Caste category about 56 candidates have been selected on the basis of merit against unreserved post of Sub Inspector Civil Police and one candidate of the post of of Platoon Commander has been selected in open competition. They have referred to the judgment of R.K. Sabbarwal (supra) to contended that reserve category candidate selected against unreserved post on merit are not to be counted against reserved post. They have also referred to the case of Anurag Patel vs. Union Public Service Commission reported in (2005) 9 SCC 742 and Jitendra Kumar Singh and another vs. State of U.P. & others reported in (2010) 3 SCC 119 as also the Division Bench judgment in Special Appeal No. 310 of 2015 (U.P. Power Corporation Ltd. vs. Nitin Kumar and others).
There can be no dispute about the proposition of law laid down in the aforesaid cases and the assertion of the petitioners to the contrary is misconceived. This aspect of the matter has already been considered at length while discussing point Nos. 4 and 8, therefore, the same need not be reiterated. However, the Court finds the State has not disclosed the data pertaining to representation of OBC, SC, ST in the cadre of Sup Inspector Civil Police and Platoon Commander nor as to how many of the reserve category were appointed on their own merit. Reference, may be made in this regard to R.K. Subbarwal (supra) wherein it has been held in paragraph 4 that "....the fact that considerable number of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class......". Had the aforesaid data been disclosed this Court would have been in a position to consider the applicability of reservation to recruitment/appointment in the cadre in the light of R.K. Subbarwal (supra). Nevertheless the State is under an obligation to keep the aforesaid enunciation of law in mind and if it finds that a particular category of reserve category is adequately represented in the cadre or adequate number of candidates of such category are being selected against unreserved seats on their own merit, including those who are being so selected after being granted concession and relaxation as contemplated in Section 3(8), then, it will be obligatory for the State to review the application of reservation policy in the light of the aforesaid proposition of law. The State shall keep this in mind.
Point No. 7:
Whether any prejudice is being caused to the petitioners assuming the aforesaid infractions, apart from the alleged illegalities.
As far as this issue is concerned as this court has already held the selection to be vitiated on account of the manner in which horizontal reservation has been erroneously applied, the candidates in excess of three-times the number of vacancies were called for Group discussion in violation of Rule 15(f) marks were illegally rounded off in violation of Rule 15(d), thereby allowing ineligible persons to participate in the main written examination, the prejudice caused to all the participants in the selection including the petitioners hardly needs to be emphasized, especially as the petitioners had appeared in the main written examination but were unsuccessful at this stage. The explanation offered by the parties in the written submission do not persuade the court to take any other view of the matter.
Point No.8:
Subject to the locus standi of petitioners, as referred above, the validity of the G.O. Dated 25.3.1994 and the application of the judgment of the Supreme Court rendered in the case of Jitendra Kumar v. State of U.P., 2010 3 SCC 119.
As far as locus of the petitioners to maintain this writ petition challenging the vires of the Government order dated 25.03.1994 is concerned no doubt the said Government order existed prior to petitioners appearing in the selection and remaining unsuccessful but the ground of challenge is violative of the Fundamental Rights under Article 16(1) read with Article 14 of the Constitution. The fundamental right of equality of opportunity in public employment is available to an individual whereas Article 16(4) by itself does not confer any Right of reservation. It is only an enabling provisions permitting certain benefits subject to satisfaction of certain prerequisites. As there can be no application of principle of estoppel and acquiescence with regard to enforcement of fundamental rights, therefore, it is difficult to hold that the vires cannot be challenged by the petitioners. To what extent interference is to be made, if at all, is a separate matter. In this regard reference may be made of the case of Raj Kumar and others vs. Shakti Raj and others reported in (1997) 2 SCC 527. Reference may also be made to the Division Bench of this Court in the case of Rajesh Kumar Srivastava and others vs. State of U.P. And others reported in (2009) 2 AWC (suppl.) 239 wherein the exceptions to the normal rule prohibiting the unsuccessful candidates from challenging a selection has been discussed.
On this issue the contention of learned counsel for the petitioners is that once the benefit of age relaxation and concession, as contemplated in sub section 8 of Section 3 of Reservation Act, 1994 are availed and if one has applied as a reserved category candidate then he cannot be considered for appointment against an un-reserved post as, it would be contrary to the dictum of the Supreme Court in Indira Sawhney(supra) case, wherein, it was inter-alia observed that concession, exemption and other measures issued by Railway Administration and noticed by the Supreme Court in its earlier decisions are the instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective. According to them, it was contrary to the aims and object of the Reservation Act. According to them, relaxation in age is also a kind of reservation, therefore, once a person avails the benefit of reservation of any kind, he cannot be selected/appointed under the unreserved category. Any action contrary to it is violative of Articles 14 and 16 of the Constitution. Reliance placed by the opposite parties on the judgment of Supreme Court in the case of Jitendra Kumar Singh (supra) is misconceived as the said judgment was based on the Government order dated 25.03.1994, the vires of which was not under challenge before the Supreme Court. Now the vires has been challenged in this writ petition, therefore, the said judgment would not apply. The petitioners relied upon the judgments of Kerala High Court in the case of Deepa E.V. vs. Union of India reported in 2015 SCC on line Ker. 21264; Rajasthan High Court in the case of Dharamvir Kumawat vs. State of Rajasthan (2014) online Raj. 6368, Gujrat High Court in the case of Gujrat Public Service Commission through Secretary vs. Parmar Nilesh Rajendra Kumar and others (LPA No.1480 of 2013) which have been rendered after considering the judgment of the Supreme Court in the case of Jitendra Kumar Singh (supra).
On the other hand the respondents have placed reliance upon the judgment of Jitendra Kumar Singh (supra) to contend that this issue is squarely covered by the decisions of the Supreme Court, therefore, there is no occasion to reconsider the same.
On a careful perusal of the case of Jitendra Kumar Singh (supra) this Court finds that the said proceedings arose out of the proceedings in Writ Petition No. 25238 of 2011 Narendra Pratap Singh (supra) and two other similar proceedings. Narendra Pratap Singh's case was also a matter of police recruitment in the State of U.P. One of the questions which fell for consideration was application of Section 3(6) of Reservation Act, 1994 which permits the selection of reserved category candidates against an un-reserve post, on the basis of merit. The question which fell for consideration was, whether reserve category candidates who had availed the concession and relaxation under sub section 8 of Section 3 of Reservation Act, 1994 would also be entitled for the benefit of Section 3(6).
In paragraph 15 of the judgment in Narendra Pratap Singh (supra) the Coordinate Bench of this Court opined that from the Scheme of the Act 1994 it does not appear that reserve category candidates who had been granted relaxation or concession in age or fee are not entitled for the benefit provided in sub section 6 of Section 3 of the Act, 1994. By grant of relaxation and concession to reserve category candidate the general category candidates are not prejudiced in any manner in competing with such reserve category candidates. The Court opined that standard of selection of all category was the same, hence, benefit of Section 3, sub-section (6) cannot be denied to reserve category candidates. If different standard, had been applied to different categories then, of-course, they would not be entitled to the said benefit.
Two other Coordinate Benches followed the decision in Narendra Pratap Singh (supra) and ultimately atleast three Special Appeals were filed. The appellate judgment which is a common judgment is reported in [2007(2) ADJ 150 (DB (Sanjeev Kumar Singh & others vs. State of U.P. An others)]. The Division Bench of this Court framed various issues including the issue involved herein. The Division Bench affirmed the judgment of Narendra Pratap Singh (supra) after considering the provisions of the reservation Act, 1994. The matter went up to the Supreme Court and was decided in Jitendera Kumar Singh (supra). The Supreme Court affirmed the decision of the Division Bench as also the Single Judge of this Court on the question involved herein.
On a careful perusal of the case of Jitendera Kumar Singh (supra), the court finds that it is not entirely based on the Government order dated 25.03.1994 as has been alleged. It is not only based on general principles of law but also on the Scheme of the Act 1994. This would be evident from reading of paragraphs 11,13,15,17,18,19,44,45,46,48,49,50,51,65 to 68, 70 and 71.
In para 71 it has been observed that it was of considered opinion that "concession falling within Section 8 of the Act, 1994 cannot be said to be relaxation in standard prescribed for qualifying in the written examination. Section 8 clearly provides that the State Government may provide for concession in respect of fees in the competitive examination or interview and relaxation in upper age limit".
In paragraph 72 after examining the contents of the Government order dated 25.03.1994, the vires of which has been put to challenge herein, it went on to observe that "from the above it becomes quite apparent that the relaxation in age-limit is merely to enable the reserved category candidate to compete with the general category candidate, all other things being equal. The State has not treated the relaxation in age and fee as relaxation in standard for selection, based on the merit of the candidate in the selection test i.e. main written test followed by interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination. Sub-section (2) of Section 8 further provides that Government orders in force on the commencement of the Act in respect of the concessions and relaxations including relaxation in upper age-limit which are not inconsistent with the Act continue to be applicable till they are modified or revoked."
In paragraph 73 of the judgment the Supreme Court has observed that "the vires of Section 3(6) or Section 8 have not been challenged before us." The same is the case in this writ petition.
In paragraph 74 of the judgment the Supreme Court also went on to observe that relaxation in age is not only given to members of the Scheduled Castes, Scheduled Tribes, and OBCs, but also to the dependents of freedom fighters and ex-servicemen.
In paragraph 75 it opined that "relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commenced when all the candidates who fulfill the eligibility conditions namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the preliminary test as also in the physical test. It is only thereafter that successful candidates have been permitted to participate in the open competition".
In paragraph 76 of the judgment it considered the arguments of Mr. Rao that Section 3(6) ensures that there is a level playing field in open competition, however, Section 8 lowers the level playing field, by providing concession in respect of fees for any competitive examination or interview and relaxation in upper age-limit and observed that "We are unable to accept the aforesaid submission. Section 3(6) is clear and unambiguous. It clearly provides that a reserved category candidate who gets selected on the basis of merit in open competition with general category candidates shall not be adjusted against the reserved vacancies. Sections 3(1), 3(6) and Section 8 are interconnected. Expression "open competition" in Section 3(6) clearly provides that all eligible candidates have to be assessed on the same criteria".
Furthermore in paragraph 77 their Lordships of Supreme Court went on to refer that "all the candidates irrespective of the category they belong to have been subjected to the uniform selection criteria" and also went on to observe that "Such being the position, we are unable to accept the submissions of the learned counsel for the appellant-petitioners that the reserved category candidates having availed relaxation of age are disqualified to be adjusted against the open category seats. It was perhaps to avoid any future confusion that the State of Uttar Pradesh issued directions on 25.03.1994 to ensure compliance with the various provisions of the Act." The last words clinch the issue. It is beyond any pale of doubt that the ratio of the judgment is not based on the Government order dated 25.03.1994.
The Supreme Court held that the Government order was in consonance with the provisions of the Act, 1994. Moreover, while arriving at the conclusion, the Supreme Court has taken into consideration the relevant paragraph of the judgment of Indira Sawhney's case which has been relied by the petitioners in this writ petition. Reference of the same has been made in paragraph 50 wherein paragraph 743 of the case of Indira Shawhney (supra) has been quoted and it has been observed that "In our opinion, these observations are a complete answer to the submissions made by Mr. Rao and Dr. Dhavan on behalf of the petitioners"
In view of the above it cannot be said that the Government order dated 25.03.1994 is ultra vires the Scheme of the Act 1994 or Article 16(1) of the Constitution or the dictum in the case of Indira Shawhney (supra). The reserve category candidates who have availed the benefit of concession and relaxation under Section 3(8) are entitled to compete against general posts under Section 3(6). As stated by the Supreme Court the Government order dated 25.03.1994 is in consonance with the provisions of the Act, 1994 and not in derogation thereof. Nor is it violative of Article 16(1) or 14 of the Constitution. This has been the consistent view of this High Court, as is evident from Narendra Pratap Singh's case (supra), its affirmation by the Division Bench in Sanjeev Kumar Singh (supra) and ultimately by the Supreme Court in Jitendra Kumar (supra), therefore, the fact that other High Courts have taken a different view is of no relevance. Reference may also be made to the Division Bench judgment of this Court in the case of Nitin Kumar (supra) which has already been considered while discussing point no.4. Thus, paragraph-4 of the Government order dated 25.03.1994 is held to be intra-vires. This issue, except the locus part, is decided against the petitioners.
In addition to aforesaid the Court finds that as per Note-I to Rule 15(g) of the Rules, 2008 Vedio-grapy of Group-discussion and preparation of C.D. in this regard is prescribed, therefore, this should be strictly adhered to while holding the Group-discussion afresh.
As far as the challenge raised by the petitioners to certain questions/answers i.e. nos. 2,12,16 and 26 is concerned, the contention with regard to question no.16 is incorrect. Article 28(2) refers to educational institutions which is administered by he State but has been established under any endowment or trust which requires that religious instructions shall be imparted in such institution. Option (C) refers to institution receiving aid from the State which is not referable to Article 28(2). Option (D) is the correct answer. See Article 28(1).
There is an error in the foundation of question no.26 but it is not fatal as cities can easily be related to countries.
As far as contention regarding answer to question no.12 is concerned the answer determined by the experts i.e. option no.(A), is correct as the right to self defence is available under Section 97 I.P.C. and Section 100 delineates the extent of the right.
Question No.2 was regarding situations in which a Presidential Ordinance can be promulgated. The answer options were (A) when one House is in session, (B) when both Houses are in session, (C) when neither House is in session i.e. both Houses are not in session (D) when situation referred in (A) or (C) exists.
The contention of learned counsel for petitioners was that under Article 123 of the Constitution, the Presidential Ordinance could be issued even if only one house of the Parliament is in session, or when both Houses are not in session, thus, option (D) was correct but according to Board option (C) was the correct answer. As per Article 79 the Parliament comprises of President and the two houses namely, Lok Sabha and Rajya Sabha. As per Article 107 of the Constitution except for money and financial bills which can only originate in Lok Sabha, other bills can originate in either of the houses, but, in order to become Law/Act they have to be passed by both the houses of the Parliament, subject of course to Article 108 and 109 (Clause-2 of Article 107).
Article 123 of the Constitution reads as under:-
"Article 123:- Power of President to promulgate Ordinances during recess of Parliament.-(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance-
(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation.- Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes it provision which Parliament would not under this Constitution be competent to enact, it shall be void.
(4) [omitted w.e.f. 20.06.1979]"
The words if at anytime "except when both Houses of Parliament are in session," imply that promulgation of the Ordinance is permissible when both Houses are not in session. An eventuality such as the above can arise in two ways one where Lok Sabha and Rajya Sabha both, are not in session, two, when only one house is in session, as, in such a scenario also both Houses are not in session in the sense only one is in session. The latter situation is also germane to Article 123 as the object is to bestow powers of legislative nature on the President to meet situations of immediacy where law cannot be enacted by Parliament and only one House in session does not facilitate consideration/passing of the bill as it is required to be considered/passed by both the Houses so as to become an Act, subject of course to article 108 and 109. Even for application of Article 109 both houses have to be in session as even for rejection by Council of States it has to be in session. While determining the answers/options to question no.2 the concerned failed to appreciate the aforesaid aspect.
A situation where both the houses are not in session also includes a scenario where only one house is in session because of which the law cannot be enacted as it has to be considered/passed by both the Houses, subject to Article 109 as already noted earlier and in such an eventuality promulgation of a Presidential Ordinance would be constitutionally permissible. This is in consonance with the object sought to be achieved by Article 123 of the Constitution of India.
The view taken hereinabove, is fortified by the discussions in the Constituent Assembly on the issue of legislative powers of the President proposed in the draft Constitution relating to Article 102 (now Article 123 of the Constitution of India)-Part V of Chapter III of the Constituent Assembly debates, Book No.3 Vol. No. VIII published by the Lok Sabha Secretariat, fifth print, 2009. Relevant extracts are as under:-
"Shri H. V. Kamath : Mr. President, Sir, I request permission at the outset to move this amendment in two parts. By some accident they have been lumped together in the Secretariat as one amendment.
Mr. President : Yes.
Shri H. V. Kamath : Sir, I move:
"That in clause (1) of article 102, for the words 'when both Houses', the words when one or both Houses' be substituted."
If we turn to article 69 of the Constitution, and read clause (2) thereof, we find that the President may from time to time summon the Houses or either House of Parliament. So it is not unlikely that at a particular time both Houses may not be in session but only one House may be in session. Therefore I would restrict the power of the President only to such occasions when no House will be in session. According to this article the President is empowered to promulgate ordinances when both Houses are not in session. As I have already stated, referring to article 69, an occasion may arise when one House will be in session. Therefore to make this clear, we will have to say "except when both Houses or one of the Houses of Parliament are in session."
In response to the aforesaid amendment proposed by Sri Kamath Hon'ble Dr. B.R. Ambedkar responded as under:-
"The amendment suggested by my friend, Mr. Kamath, i.e., 1793, seems to me rather purposeless. Suppose one House is in session and the other is not. If a situation as I have suggested arises, then the provisions of article 102 are necessary because according to this Constitution no law can be passed by a single House. Both Houses must participate in the legislation. Therefore the presence of one House really does not satisfy the situation at all".
In response Sri Kamath stated as under:-
"Does it mean that when one House only is in session, say, the House of the People, the President will still have this power?"
Dr. B.R. Ambedkar responded as under:-
"Yes, the power can be exercised because the framework for passing law in the ordinary process does not exist."
Whereupon Sri Kamath concluded by saying as under:-
"Shameful, I should say."
After the aforesaid discussion on the amendment, which is relevant for the purposes of this case, the amendment proposed by Sri Kamath was negatived as under:-
"The question is:
"That in clause (1) of article 102, for the words 'when both Houses', the words 'when one or both Houses' and for the words 'such Ordinances', the words 'such Ordinance or Ordinances' be substituted respectively."
The amendment was negatived."
The amendment proposed by Sri Kamath was that the power to issue a Presidential Ordinance should be restricted to such occasions when no House will be in session, meaning thereby, if, one House is in session even then such power shall not be exercised, but, this was negatived in view of the observations of the Dr. B.R. Ambedkar as quoted hereinabove, wherein, he categorically observed that the amendment was purposeless for the reason suppose one House is in session and the other is not, then the provisions of Article 102 are necessary because according to this Constitution no law can be passed by a single House. Both Houses must participate in the legislation, therefore, presence of one House really does not satisfy the situation at all.
The aforesaid discussion concludes the issue.
Thus, there is merit in the contention of the petitioners. The Board shall revisit this issue and take remedial action in accordance with past practice in consonance with law.
It was also contended on behalf of the petitioners that certain candidates who had qualified the main examination did not appear in Group-discussion yet they were declared successful finally which could not have been done in view of Rule 15(1)(g) which says that such candidate shall be required to appear in the Group-discussion. In this regard emphasis was laid on the use of word 'shall' and also on the object behind prescribing a Group-discussion. While the argument appeared to be attractive at first blush, but, when considered in the light of the Rules, the Court finds that the word 'shall' be required to appear only means that Recruiting Authority is required to call the petitioners to appear but it does not mean that if they actually do not appear in Group-discussion they would be disqualified, as, no such consequence is prescribed in the Rules. Moreover under Rule 15(1)(g) the Group-discussion is of only 20 marks. The main written examination which is of 400 marks. The marks obtained in the main written examination are to be added to the marks obtained in the Group discussion. Even if a candidate scores 'zero' marks in the Group-discussion,but, qualifies on the basis of over all aggregate of the two exams, then, there is nothing in the Rules which may persuade the Court to hold that he can not be declared successful. The Rule is not under challenge. Having said so, this Court is of the opinion that considering the importance of Group-discussion and object behind it as is evident from Rule 15(1)(g) it would be worthwhile that this aspect of the matter is re-visited by the Rule making authority but this shall not in any manner hinder the holding of selection as is being ordered herein, but, shall be kept in mind for future selections.
In view of the above discussion, the selection in question from the stage of declaration of result of the main written examination including the impugned select list is not sustainable and is quashed. The concerned opposite parties are directed to prepare the result of main written examination and declare the same afresh keeping in mind the observations made hereinabove. Based thereon the selection shall proceed and shall be finalized in accordance with the Rules and observations made in the body of this judgment as also in the case of Ashish Kumar Pandey (supra) which has been affirmed by the Division Bench in Special appeal. This exercise shall be completed within a period of four months from the date of submission of a certified copy of this judgment to the concerned opposite parties.
Consequential action of sending the selected candidates for training and their appointment shall follow as per law.
This Court on 02.09.2016 passed an interim order to the effect that pursuant to the impugned notification dated 25.06.2015 issued by the Additional Secretary, Recruitment/Examination Controller, U.P. Police Recruitment and Promotion Board Lucknow, no appointment letter shall be issued to any of the selected candidates without leave of the Court. The stay order passed in this case was neither modified nor vacated. The Court was informed that some candidates are undergoing training. If it is so, then consequent to the fresh selection as ordered hereinabove, if any of the candidates who are presently undergoing training get selected again, then, their training shall be continued from the stage where it was left, however, the appointment and other service benefit shall be available to such candidates only from the date they are made available to other selected candidates and not otherwise.
All the writ petitions are partly allowed.
Dated: August 24, 2016.
Vks. (Rajon Roy, J)