Central Administrative Tribunal - Delhi
Uttam Kumar vs Delhi Police on 7 July, 2025
1
Item No. 31 (C-4) O.A No. 463/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 463/2024
Reserved on : 01.07.2025
Pronounced on : 07.07.2025
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Sh. Uttam Kumar
(Aged about 26 years)
S/o Kunwar Bahadur Chaursia
R/o. H. No. 183, Old H. No. 51,
Rajendra Park Extn. Nangloi,
West Delhi, Delhi - 110 041 ....Applicant
(By Advocate : Mr. Shivanshu Bhardwaj and Mr. Archit Mudgal)
Versus
1. Commissioner, Delhi Police,
Delhi Police Headquarters,
Jai Singh Road,
New Delhi 110001.
2. Add. Commissioner of Police,
(Recruitment),
Delhi Police, New Police Lines,
Kingsway Camp, Delhi - 110 009. ...Respondents
(By Advocate : Ms. Gauraan)
2 OA No. 463/2024
Item 31 (C-4)
ORDER
Hon'ble Dr. Sumeet Jerath, Member (A):
The instant OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"i) To allow the Applicant to appear for Physical Endurance and Measurement Test for the post of Constable (Executive) Male in Delhi Police Examination-2023;
ii) To pass any other order as this Hon'ble Tribunal deem fit and proper in view of facts and circumstances of the case;
iii) To allow the O.A. with cost."
2. The factual matrix of the case as per the counsel of the applicant is that the applicant an aspirant for the post of Constable had applied under OBC category in response to the notification issued by the respondents for the post of Constable (Executive) Male. He appeared in the Tier-I exam held on 15.11.2023 wherein he scored 67.88 marks after normalisation. Thereafter he was shortlisted for Physical Endurance and Measurement Test (PE&MT) scheduled for 14.01.2024 at G-3, DPA Wazirabad, Delhi. However, due to his illness on 12.01.2024 and consequent bed rest of four days, he could not attend the said test scheduled for 14.01.2024. In this regard the applicant preferred a representation to the concerned authority on 13.01.2024 seeking another date for his Physical Endurance and Measurement Test however, his request was not acceded to by the respondents.
3 OA No. 463/2024Item 31 (C-4) Subsequently, he made two more representations on 14.01.2024 and 25.01.2024 but to no avail. Hence, the present OA.
3. The counsel of the applicant argued vociferously using the following grounds :-
1. The concerned Respondents have acting whimsically and arbitrarily in not permitting the Applicant to attend the Physical Endurance and Measurement Test on any of the other days, especially when the same was being conducted continuously from 13.01.2024 to 20.01.2024.
2. The PE&MT is purely of qualifying nature and no prejudice would have been caused if the Applicant was permitted to attend the PE&MT on any of the other days.
3. The concerned Respondents have failed to appreciate that the Applicant could not attend the PE&MT owing to the genuine cause of deteriorated health for which he had all the necessary medical documents.
4. The concerned Respondents had failed to appreciate that the Applicant had scored above the cut off the PE&MT, this coupled with fact that the concerned selection is the Applicant's last attempt, hence, he should at least have been allowed to showcase his merit by attending the PE&MT on any of the other days.
5. The practice of the RESERVE DAYS is well known to the selection process like the one in question, where an additional day is prescribed and kept for such eventualities where a candidate is unable to attend the endurance test owing to a genuine reason. Hence, such facility of reserve day should also have been extended to the Applicant owing to his special circumstances. Copy of the notifications prescribing such reserve days is enclosed herewith as Annexure A-10 (Colly.).
6. The Hon'ble Delhi High Court on 09.05.2023 in the case of Vishesh v. Commissioner of Police and Ors.. W.P.(C) No. 6085 of 2023 whose case pertained to the facts similar to the present case, has held that:
"9. Having heard the learned counsel for the parties and perusing the medical prescriptions enclosed alongwith the Writ Petition, we find that the petitioner could not appear in the Physical Endurance Test (PET) on March 15, 2023 because of the injury. Immediately on the same day, a request has been made by the mother of the petitioner. It is not disputed that a further date of April 28, 2023, was also fixed. for PET, but the petitioner could not appear as his request was not acceded to by the respondents, for the reasons already stated above. According to us, the Tribunal should have in the earlier round of litigation, knowing well 4 OA No. 463/2024 Item 31 (C-4) that the next date of Physical Endurance Test (PET) is April 28, 2023, allowed the petitioner to participate in the same. Having not done that and the order which has been passed by the respondents rejecting the request of the petitioner to participate in the Physical Endurance Test (PET) on the ground that the date is final is prima facie not appealing. In the facts of this case, the respondents do not deny that the petitioner has suffered an injury. They also do not contest the medical prescriptions attached alongwith the Writ Petition. This Court is of the view that the respondents should be directed to allow the petitioner to participate in the Physical Endurance Test (PET) on the date when the Physical Endurance Test (PET) is to be held for departmental candidates, but in the manner required under the rules for the post to which the petitioner had applied, to enable the petitioner participate in the Physical Endurance Test (PET). This we say so, any delay may cause prejudice to the petitioner. We are told the dates are 9. 10 and 11th of May. 2023. We accordingly, fix the date for participation of the petitioner in PET as May 11, 2023 at 6:00 am. The said Physical Endurance Test (PET) shall be supervised by the same Medical Board as is entitled to be supervised for the post concerned. The petitioner shall report to the concerned officer at 6:00 AM on May 11, 2023."
4. Per contra the counsel of the respondents vehemently opposed the averments and arguments of the counsel of the applicant and raised preliminary submissions stating that in spite of clear instructions given at Point 11 of the Admit Card issued to him, the applicant did not appear in the PE&MT on the scheduled date and time. Therefore, he was marked absent in the said test which was updated on the very same day in Online Data Verification Sheet (Webtool Data).
She highlighted that at present basic training of first batch of selected candidates had already started from 04.03.2024 and the 5 OA No. 463/2024 Item 31 (C-4) second lot had also been sent for training on 01.07.2024. Consequently, the selected candidates have already been issued offer of appointment and the selection process is already over.
Answering the applicant's plea about several requests for fixing another date for PE&MT, counsel for respondents stated that to complete the selection process timely and to cut the financial burden for again conducting the PE&MT, the candidates including the applicant were not given another chance to appear in PE&MT.
To buttress her arguments counsel for respondents took the following grounds mentioned in the counter affidavit :-
1. Despite following clear instructions given at Point No. 11 of the Admit Card issued for appearing in the PE&MT that The date, time & venue of PE&MT is final and no request for change will be entertained. In case a candidate FAILS to attend the PE&MT on the scheduled date & time, he will be treated as ABSENT and no request in any form for next date through post/by-hand/email etc. will be entertained under any circumstances. The candidate is advised to reach at least one day in advance near his/her PE&MT venue", the applicant did not appear for the PE&MT on scheduled date & time, as such, he was marked ABSENT. The action of the respondent legal & justified as per norms mentioned above.
2. The directions passed by the Hon'ble High Court of Delhi in CWP No.6085/2023- Vishesh v.CP. Delhi & Ors. do not cover with the present CA as the directions of Hon'ble High Court of Delhi in the said CWP are limited and clearly mentioned under para 11 in the order that 'this order is passed in the facts of this case'.6 OA No. 463/2024
Item 31 (C-4)
5. Considered the rival submissions ; examined the documents on record and perused the relevant judgment of Hon'ble High Court of Delhi. We have observed that this case was heard during admission hearing on 09.02.2024 and inter alia the following order was passed:-
"8. In the facts and circumstances, we are of the considered view that the applicant deserves grant of some interim relief. Accordingly, as an interim measure, respondents are directed to keep one post of Constable( Executive) Male, Delhi Police, under OBC category vacant and/or to make the last appointment to the post of Constable (Executive) Male, Delhi Police, under the OBC category pursuant to the aforesaid process, provisional and subject to outcome of the O.A. till the next date of hearing. Learned counsel for the respondents seeks and is allowed 3 weeks' time to file counter reply. Applicant shall be at liberty to file rejoinder, if any, within a week thereafter. List on 18.03.2024.
9. It is further provided that if the respondents decide they may approach this Tribunal for vacation/modification of the interim order even before the next date of hearing, however, after filing of reply/short reply and by way of an Μ.Α."
6. Thus, interim protection was granted to the applicant and the respondents were also granted liberty to approach the Tribunal for vacation/modification of the interim order. However, we have observed that the respondents now approached the Tribunal for vacation/modification. Now that the counsel of the respondents pleads that the judgment of Hon'ble High Court of Delhi in WP (C) 6085/2023 - Vishesh vs. Commissioner of Police & Others delivered on 09.05.2023 (which the counsel of the applicant is relying upon) does not apply in the instant OA and is only valid for the order passed in the facts of the case :-Vishesh vs. Commissioner of Police & 7 OA No. 463/2024 Item 31 (C-4) Others does not hold any gravitas as they should have approached this Tribunal earlier and vacated / modified the interim order of the Tribunal of 09.02.2024.
7. Be that as it may, we are of the considered opinion that the applicant is otherwise meritorious having scored 67.88 marks which are higher than 66.81 marks - marks for the last selected candidates under OBC category. He deserves an empathetic view as he is from a poor family and comes from the lower strata of the society and moreover this is a question of livelihood (employment) issue for him. Therefore, he deserves to be given another opportunity to appear in the Physical Endurance and Measurement Test (PE&MT) which he sadly missed due to his illness. The respondents have been unduly harsh and grossly unsympathetic in not giving him another opportunity for the PE&MT which violates Article 14 - Right to equality and equality before Law and Article 16 - Equality of opportunity in matters of Public employment. We are of the considered opinion that ours is a 'Welfare State' and the Government and its instrumentalities must be 'model and empathetic employers'.
8. Accordingly, we are of the considered opinion that this OA has merit; deserves to be allowed and is accordingly allowed. The respondents are directed to give the applicant an opportunity to appear for Physical Endurance and Measurement Test (PE&MT) for the post of Constable (Executive) Male in Delhi Police Examination - 2023 8 OA No. 463/2024 Item 31 (C-4) (as he is already meritorious having scored 67.88 marks against the cut off marks of 66.81 of shortlisted candidates under OBC category) and if otherwise found suitable consider him appointing to the post of Constable (Executive) Male in OBC category. This exercise should be completed within a period of three months from the date of receipt of a certified copy of this order. Needless to mention that the applicant would be entitled to get all notional benefits like seniority and fixation of pay and allowances. However, there will be no payment of arrear of salary on the principle of 'No work no pay.' There will be no order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/