Allahabad High Court
Sudhakar Pandey vs The State Of U.P. Thorugh The Principal ... on 1 February, 2013
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW Reserved (1) Case :- SERVICE SINGLE No. - 5254 of 2011 Petitioner :- Sudhakar Pandey Respondent :- The State Of U.P. Thru The Principal Secy.Home Dept. Lko. Petitioner Counsel :- Amit Bose Respondent Counsel :- C.S.C. Along With (2)Case :- SERVICE SINGLE No. - 6542 of 2011 Petitioner :- Nanhe Lal Respondent :- State Of U.P.Through Prin. Secy. (Home) Lko. & Ors. Petitioner Counsel :- Sudesh Tewari,P.S.Srivastava Respondent Counsel :- C.S.C. (3)Case :- SERVICE SINGLE No. - 5844 of 2011 Petitioner :- Head Constable Dinesh Kumar Mishra & Others Respondent :- State Of U.P., Thru. Prin. Secy., Home & Others Petitioner Counsel :- Sudhir Kumar Misra Respondent Counsel :- C.S.C. (4)Case :- SERVICE SINGLE No. - 6068 of 2011 Petitioner :- Constable Cp No.-930290061 Sanjay Singh & Others Respondent :- State Of U.P.,Thru. Prin. Secy., Home & Others Petitioner Counsel :- Sudhir Kumar Mishra,Anupam Shukla Respondent Counsel :- C.S.C. (5)Case :- SERVICE SINGLE No. - 6551 of 2011 Petitioner :- Cons. Cp Pno982710023 Kunwar Anshum Singh & Anr. Respondent :- State Of U.P.Through Prin. Secy. Home Deptt. Lko.And Ors. Petitioner Counsel :- Sudhir Kumar Misra,Sekhar Misra Respondent Counsel :- C.S.C. (6)Case :- SERVICE SINGLE No. - 7785 of 2011 Petitioner :- HC Cp No 102 Pno 872330768 Ram Prakash Tiwari Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Sudhir Kumar Mishra,Sekhar Mishra Respondent Counsel :- C.S.C. (7)Case :- SERVICE SINGLE No. - 8312 of 2011 Petitioner :- Virendra Kumar S/O Ram Prasad & Another Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Satendra Kumar Singh Respondent Counsel :- C.S.C. (8)Case :- SERVICE SINGLE No. - 7612 of 2011 Petitioner :- Const. Cp No. 952620253 Harikesh Bharti Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Sudhir Kumar Mishra,Ashutosh Mishra, Respondent Counsel :- C.S.C. (9)Case :- SERVICE SINGLE No. - 5420 of 2011 Petitioner :- Brijendra Nath Mishra And Ors. Respondent :- State Of U.P.Thru The Prin. Secy. Deptt. Of Home Petitioner Counsel :- S.K.Singh Respondent Counsel :- C.S.C. (10)Case :- SERVICE SINGLE No. - 8333 of 2011 Petitioner :- Const. Ratnesh Kumar Tripathi & 3 Ors. Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Rajesh Singh Chauhan,Vikramaditya Gupta Respondent Counsel :- C.S.C. (11)Case :- SERVICE SINGLE No. - 5160 of 2011 Petitioner :- Bharat Singh Respondent :- State Of U.P. Thru Prin. Secy. Home Deptt. Petitioner Counsel :- Amit Bose Respondent Counsel :- C.S.C. (12)Case :- SERVICE SINGLE No. - 5163 of 2011 Petitioner :- Hari Saran Singh Respondent :- State Of U.P. Thru Prin.Secy. Home Govt. Of U.P. A Petitioner Counsel :- Amit Bose Respondent Counsel :- C.S.C. (13)Case :- SERVICE SINGLE No. - 5167 of 2011 Petitioner :- Kundan Kumar Singh Respondent :- State Of U.P. Thru Prin. Secy. Home Govt. Of U.P. Petitioner Counsel :- Amit Bose Respondent Counsel :- C.S.C. (14)Case :- SERVICE SINGLE No. - 5259 of 2011 Petitioner :- Anand Kumar Maurya Respondent :- State Of U.P. Thru Principal Secy. Home Lko & Ors. Petitioner Counsel :- Amit Bose Respondent Counsel :- C.S.C. (15)Case :- SERVICE SINGLE No. - 5540 of 2011 Petitioner :- Madhur Shyam Ojha Respondent :- State Of U.P., Thru. Prin. Secy.,Home & Others Petitioner Counsel :- Amit Bose (16)Case :- SERVICE SINGLE No. - 7831 of 2011 Petitioner :- Balwant Chand S/O I.P.Chand Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Shamsher Yadav Jagrana Respondent Counsel :- C.S.C. (17)Case :- SERVICE SINGLE No. - 3933 of 2012 Petitioner :- H.C. 59 C.P. Akhilesh Kuamr Rai & 7 Others Respondent :- State Of U.P. Thru Prin. Secy. Home Deptt. & Others Petitioner Counsel :- Anupam Shukla Respondent Counsel :- C.S.C. (18)Case :- SERVICE SINGLE No. - 2641 of 2012 Petitioner :- Constable Ap Arvind Kumar Respondent :- State Of U.P. Thru Prin. Secy. Home Deptt. & Others Petitioner Counsel :- Sudhir Kumar Misra Respondent Counsel :- C.S.C. (19)Case :- SERVICE SINGLE No. - 4415 of 2012 Petitioner :- Head Const. 62 Tp. Sanjai Kumar Singh & 3 Ors. Respondent :- State Of U.P. Thru Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Sudhir Kumar Mishra,Shekhar Mishra Respondent Counsel :- C.S.C. (20)Case :- SERVICE SINGLE No. - 4395 of 2012 Petitioner :- Constable 2029 C.P. Mahendra Pratap Pathak & Another Respondent :- State Of U.P. Thru Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Sudhir Kumar Mishra,Anupam Shukla Respondent Counsel :- C.S.C. (21)Case :- SERVICE SINGLE No. - 1597 of 2012 Petitioner :- Const.Shree Prakash Singh Respondent :- The State Of U.P. Thru Principal Secy.Home & Others Petitioner Counsel :- Dr. V.K. Singh,Manoj Kumar Singh Respondent Counsel :- C.S.C. (22)Case :- SERVICE SINGLE No. - 3484 of 2012 Petitioner :- Constable Cp 2336 Brij Lal Respondent :- State Of U.P. Thru Prin. Secy. Home & 3 Others Petitioner Counsel :- Anupam Shukla,Sudhir Kumar M8ishra Respondent Counsel :- C.S.C. (23)Case :- SERVICE SINGLE No. - 4528 of 2012 Petitioner :- Const. 623 Cp Shailendra Kumar Mishra Respondent :- State Of U.P.,Thru. Prin. Secy., Home & Others Petitioner Counsel :- Sudhir Kumar Misra Respondent Counsel :- C.S.C. (24)Case :- SERVICE SINGLE No. - 8472 of 2011 Petitioner :- Head Const. 34 Cp Pno. 982220058 Pratibha Singh Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Sudhir Kumar Mishra Respondent Counsel :- C.S.C. (25)Case :- SERVICE SINGLE No. - 8946 of 2011 Petitioner :- Head Constable Cp Rajendra Kumar Misra And Ors. Respondent :- State Of U.P.Through Prin. Secy. Home Lko.And Ors. Petitioner Counsel :- Sudhir Kumar Misra,Anupam Shukla Respondent Counsel :- C.S.C. (26)Case :- SERVICE SINGLE No. - 9140 of 2011 Petitioner :- Constable Charan Singh And Ors. Respondent :- State Of U.P.Through Prin. Secy. Home Lko.And Ors. Petitioner Counsel :- S. K. Misra,Anupam Shukla,Dr.L.P.Mishra Respondent Counsel :- C.S.C. (27)Case :- SERVICE SINGLE No. - 6672 of 2011 Petitioner :- Harish Chand S/O Late Asharam & 22 Ors. Respondent :- State Of U P Thr.Prin.Secy.Home & 5 Ors. Petitioner Counsel :- H G S Parihar,Krishna Kanahaya Pal,L.P.Misra Respondent Counsel :- C.S.C. (28)Case :- SERVICE SINGLE No. - 5548 of 2011 Petitioner :- Anjani Tripathi And Others Respondent :- State Of U.P.Thru.Prin Secy.Home And Others Petitioner Counsel :- Gaurav Mehrotra Respondent Counsel :- C.S.C. (29)Case :- SERVICE SINGLE No. - 4765 of 2012 Petitioner :- Shrawan Kumar Singh & 9 Ors. Respondent :- State Of U.P. Through Prin. Secy. Home Deptt. Lko. & Ors. Petitioner Counsel :- Dr. Lalta Prasad Mishra Respondent Counsel :- C.S.C. (30)Case :- SERVICE SINGLE No. - 7294 of 2011 Petitioner :- Balram Pandey S/O B.P.Pandey Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- P.S.Srivastava,P.S. Srivastava,Sudesh Tiwari Respondent Counsel :- C.S.C. (31)Case :- SERVICE SINGLE No. - 6517 of 2011 Petitioner :- Pradeep Kumar Singh S/O Shitala Bux Singh Respondent :- State Of U P Thr.Prin.Secy.Home & 2 Ors Petitioner Counsel :- D C Misra,Sajjad Husain Respondent Counsel :- C.S.C. (32)Case :- SERVICE SINGLE No. - 4793 of 2012 Petitioner :- Const. 1116 C.P. Mukesh Kumar & Another Respondent :- State Of U.P. Thru Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Sudhir Kumar Mishra Respondent Counsel :- C.S.C. (33)Case :- SERVICE SINGLE No. - 4847 of 2012 Petitioner :- Constable Vinod Kumar & 15 Ors. Respondent :- State Of U.P. Thru Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Sajjad Husain Respondent Counsel :- C.S.C. (34)Case :- SERVICE SINGLE No. - 4854 of 2012 Petitioner :- Jai Prakash Pandey & 2 Ors. Respondent :- State Of U.P. Through Secy. Home Lko. & Ors. Petitioner Counsel :- Ved Prakash Nag,Shashank Omar Respondent Counsel :- C.S.C. (35)Case :- SERVICE SINGLE No. - 6957 of 2011 Petitioner :- Sanjay Kumar Shukla S/O L.S.Shukla & 6 Ors. Respondent :- State Of U.P. Through Secy. Home Lko. & Ors. Petitioner Counsel :- Ved Prakash Nag Respondent Counsel :- C.S.C. (36)Case :- SERVICE SINGLE No. - 3789 of 2012 Petitioner :- Hc Manoj Kumar Singh & Another Respondent :- State Of U.P. Through Secy. of Home Lko. & Ors. Petitioner Counsel :- Sanjai Kumar Pandey,Saurabh K. Srivastava Respondent Counsel :- C.S.C. (37)Case :- SERVICE SINGLE No. - 49 of 2012 Petitioner :- Cons. Cp No. 892031449 Pawan Kumar Tripathi & Anr Respondent :- State Of U.P. Thru Prin. Secy. Home Lko. & Ors. 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(42)Case :- SERVICE SINGLE No. - 7325 of 2011 Petitioner :- Ajay Bahadur Singh S/O Dev Bux Singh & 3 Ors. Respondent :- State Of U P Thr.Pirn.Secy.Home & 2 Ors. Petitioner Counsel :- M N Rai Respondent Counsel :- C.S.C. (43)Case :- SERVICE SINGLE No. - 3000 of 2012 Petitioner :- Aarkshi Gulab Singh Respondent :- State Of U.P.Thru Prin. Secy. Home. & 2 Others Petitioner Counsel :- M.N. Rai Respondent Counsel :- C.S.C. (44)Case :- SERVICE SINGLE No. - 8696 of 2011 Petitioner :- Radhey Shyam Dwivedi Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Shamsher Yadav Jagrana Respondent Counsel :- C.S.C. (45)Case :- SERVICE SINGLE No. - 5791 of 2012 Petitioner :- Ram Janam Pandey Respondent :- State Of U.P. Through Prin. Secy. Home Deptt. Lko. & Ors. Petitioner Counsel :- Brijendra Mani Pandey Respondent Counsel :- C.S.C. (46)Case :- SERVICE SINGLE No. - 4070 of 2012 Petitioner :- Ashraf Ali Khan Respondent :- State Of U.P.Thru Prin. Secy. Deptt. Of Home & Another Petitioner Counsel :- M.P. Raju Respondent Counsel :- C.S.C. (47)Case :- SERVICE SINGLE No. - 6199 of 2012 Petitioner :- Constable Ravindra Singh & 13 Ors. Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Sajjad Hussain Respondent Counsel :- C.S.C. (48)Case :- SERVICE SINGLE No. - 6295 of 2011 Petitioner :- Dinesh Kumar Saroj And Another Respondent :- State Of U.P. Thru. Prin. Secy. Home And Others Petitioner Counsel :- M.P. Raju Respondent Counsel :- C.S.C. (49)Case :- SERVICE SINGLE No. - 6294 of 2011 Petitioner :- Navdeep Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Home And Others Petitioner Counsel :- M.P. Raju Respondent Counsel :- C.S.C. AND (50)Case :- SERVICE SINGLE No. - 5381 of 2012 Petitioner :- Sachidanand Pathak & 3 Ors. Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors. Petitioner Counsel :- Vijay Kumar Tripathi Respondent Counsel :- C.S.C. *********************** Hon'ble Ritu Raj Awasthi,J.
Since all these writ petitions involve the same controversy based on similar facts and circumstances, as such, they have been connected and heard together and are being decided by a common judgment.
Heard Dr. L.P. Misra, Mr. Amit Bose, Mr. Gaurav Mehrotra, Mr. Rajesh Singh Chauhan, Dr. V.K. Singh, Mr. Sudhir Kumar Misra, Mr. M.N. Rai & other learned counsel for petitioners as well as learned Chief Standing Counsel Mr. Mohd. Mansoor for the opposite parties and perused the records.
Petitioners are aggrieved against the alleged faulty manner adopted by the authorities in holding the Physical Efficiency Test which is either violative of circulars issued by the selecting authority or the manner of holding it is either unconscionable or is such that is against the very common sense in view of the circumstances prevalent on the track/field on the dates of holding of Physical Efficiency Test. Some of the petitioners have also challenged the orders rejecting their representations for holding the Physical Efficiency Test afresh.
The aforesaid writ petitions can be broadly categorized in five categories:
Category I Writ petitions of candidates whose Physical Efficiency Test was held on 20.7.2011 at Police Lines Ground, Azamgarh when heavy rain started shortly after the start of the Physical Efficiency Test, which comprised of a run of 10 kms to be completed within 75 minutes (male candidates) and a run of 5 kms to be completed within 45 minutes (female candidates). The rain had resulted in water logging and submerging of Track with water and further resulted in creation of pits, pit-holes and creation of muddy conditions all over the field on one hand and on the other hand adversely affecting the physical efficiency of the candidates in running while rains were pouring in and their body, clothes and shoes were wet and became heavier.
Category II Writ petitions of candidates whose Physical Efficiency Test was held on the same ground at Azamgarh on 21.7.2011 and 22.7.2011 instead of holding the test at some other alternate ground in spite of the fact that the soil of the Track was muddy and sand was put on the Track to soak water which had made the conditions unfavourable for the candidates to complete the run within time.
Category III Writ petitions of candidates who were sick, as there was no provision for giving any option for postponement of Physical Efficiency Test to some other date, they were made to appear in the Physical Efficiency Test during sickness and ailment. Some of the candidates had fell unconscious and were hospitalized by the concerning authorities themselves. However, in regard to some persons Physical Efficiency Test was postponed and and was held on a subsequent date on the basis of subsequent circular making provision for giving options to the candidates suffering from ailment or sickness to opt for some other date but these candidates whose test was held before issuance of the said circular were not extended the said benefit and, as such, were highly discriminated.
Category IV Writ petitions of candidates who could not appear in the Physical Efficiency Test on the dates refixed by the respondents i.e. on 20.8.2011 due to serious injuries/illness or were not advised by the Doctors to undergo the Physical Efficiency Test due to their physical condition.
Category V Writ petitions of candidates complaining against the faulty manner adopted in holding the Physical Efficiency Test by formation of lines on the Track and overcrowding resulting in the increase of distance to be covered by the candidates and also resulting in overlapping and colliding of the candidates with each other subjected to the Physical Efficiency Test. They could not complete the run in time as in some cases the candidates were overtime by fraction of second.
For convenience certain writ petitions have been taken as leading cases in each category and their facts have been considered to adjudicate the controversy involved in all the cases.
Category I Writ Petition No. 6672 (SS) of 2011; Harish Chandra and others Vs. State of U.P. and others.
The petitioners have challenged the order dated 08.09.2011 passed by the Additional Secretary of the Uttar Pradesh Police Recruitment and Promotion Board, Lucknow (for short 'the Board') rejecting their representation (Annexure No. 1 to the Writ Petition No. 6672 (SS) of 2012) on the solitary ground that since some other candidates have qualified in the Physical Efficiency Test, their representation was not acceptable.
The case of petitioners is that shortly after the start of the Test on 20.7.2011 rains had started and heavy rains took place resultantly the track/field was water logged, the pit falls and pit holes were created, the field got muddy and the body of the candidates, shoes and clothes born by them got wet and while running during rains their efficiency was adversely affected because of these conditions and because of the test being not stopped during rains.
Petitioners had made representations and considering the same, Superintendent of Police, Azamgarh had sent a report dated 23.7.2011 inter alia stating that on 20.7.2011 shortly after the start of the Physical Efficiency Test (run) at Police Lines Ground, Azamgarh rains had started and heavy rains took place. It further stated that as there was no instructions/guidelines for stopping the Physical Efficiency Test if rains take place, the Test was held while rains were pouring in. Furthermore, a similar report dated 28.7.2011 was sent by the Superintendent of Police, Azamgarh in regard to the representations made by some other candidates including some of the petitioners. A similar report was also sent by the Deputy Inspector General of Police, Azamgarh Region vide letter dated 26.7.2011. Thereafter, the Board vide letter dated 09.08.2011 addressed to Superintendent of Police, Azamgarh had sought certain information as to whether the rains had started before the start of Physical Efficiency Test or had started during the Physical Efficiency Test and if so then after what duration of the start of the test. Superintendent of Police, Azamgarh had also sent a report dated 10.8.2011 to the Board stating therein that approximately the rain had started within 10 to 15 minutes of the start of the Test. However, on receipt of the Board's aforesaid letter, Superintendent of Police, Azamgarh sent another letter dated 04.09.2011 stating therein that requisite information was already sent through report dated 10.8.2011.
It is submitted by learned counsel for petitioners that existence of these documents/reports has not been disputed by the opposite parties. Thus, there can be no doubt at all that on 20.7.2011 shortly after the start of Physical Efficiency Test, the rains had started and heavy rains took place at Azamgarh resulting into the field being water logged. It is a matter of common knowledge and also of common prudence that efficiency of a person running on a field when the rains are pouring in shall definitely be marred as the body, clothes and shoes borne by a person would be wet and the physical efficiency of a person would certainly go down in such a situation than in the normal circumstances. Furthermore, the efficiency of a person running on a field which is water logged and uneven due to creation of pitfalls, holes and pits and muddy is also to be adversely affected.
Submission is that the rejection of the representation of petitioners on the ground that some persons have been successful in the Physical Efficiency Test under the same condition could not be a valid ground to hold that petitioners were not physically fit as this test was held for determining the minimum physical efficiency for further participation in the selection process. A group of persons, being put in under the same situation, may perform differently as there may be persons who are much more physically efficient than the required standard and they may perform better than others. However, it does not stand to reason that merely because that some persons have qualified the Physical Efficiency Test being more physically efficient, the other candidates were not physically fit to qualify the Physical Efficiency Test. The petitioners were not required to qualify the Physical Efficiency Test in such adverse conditions which were created by an act of God or by an act of nature.
It is also submitted by learned counsel for petitioners that there was no guidelines/instructions from the Board to meet such a situation as was created on 20.7.2011 due to heavy rains occurring after the start of the Physical Efficiency Test. It was a peculiar situation created on 20.7.2011 due to heavy rains and the Board thereafter had issued a circular dated 20.7.2011 which inter alia provides as under:
(i)In the event of rains taking place during Physical Efficiency Test (run) then a long whistle should be given and in that situation those who want to run on their own and who felt that they could complete the Physical Efficiency Test were to indicate as such and those who feel that they did not wish to run, such candidates should indicate on the format "kha" and for such candidates the information about holding of the Physical Efficiency Test again on a specified date shall be given on format "ka".
(ii)If the water logging conditions are created on the field due to rains then for Physical Efficiency Test alternate place for holding the test be located in the city such as College grounds or Stadium where there may not be any possibility of water logging.
(iii)On the alternative field being arranged the necessary information be given to the Agency conducting the Physical Efficiency Test.
It is submitted that there is one more circumstance which is not in dispute at all, that on 20.7.2011 itself the Deputy Commandant, 20th Battalion, P.A.C., Azamgarh conducting the Physical Efficiency Test had informed the Board that after the start of the Physical Efficiency Test the rains had started and there was water logging on the ground.
Learned counsel for petitioners emphasized that it does not appeal to reason as to why the benefit of the Board's circular dated 20.7.2011 could not be available to those candidates who were made to run on 20.7.2011 while heavy rains were pouring in and which itself resulted into the issuance of the circular dated 20.7.2011.
Submission is that once the authorities had accepted that if the water logging are created on the field due to rains then for holding Physical Efficiency Test alternative places shall be located in the city such as College ground or Stadium where there may not be any possibility of water logging. Ultimately, there was water logging on the Track and the soil had become muddy, however, no fresh Physical Efficiency Test was held for these candidates.
It is vehemently submitted by learned counsel for petitioners that asking the candidates to run for minimum Physical Efficiency Test in such adverse raining conditions and not stopping the Test due to lack of instructions is wholly unreasonable and arbitrary. In such a scenario it cannot be legitimately concluded that Test was objectively held. The unforeseen circumstances were to be met according to the exigency which was not done in the case in hand.
Category II Writ Petition No. 4765 (SS) of 2012; Sharvan Kumar and others Vs. State of U.P. and Others.
The writ petition has been filed by the candidates participating in Physical Efficiency Test held at Azamgarh on 21.7.2011 on the same field where the Physical Efficiency Test was held on 20.7.2011 i.e. the ground of Police Lines, Azamgarh which was allegedly water logged due to heavy rains which had taken place on 20.7.2011. The run was organized on the field which was having muddy conditions. The rains occurred on 20.7.2011 had resulted in water logging and which further caused pits, pots, pit holes and muddy conditions on the Track. Despite circular dated 20.7.2011 for choosing alternate field where there was no possibility of water logging, the Physical Efficiency Test was held on 21.7.2011/22.7.2011 on the same field where it was held on 20.7.2011. No efforts were made to find out alternate ground/field.
It is submitted by learned counsel for petitioners that in the counter affidavit the opposite parties have taken a stand that the water logged portions and muddy portions of the Track were filled up by sand and field was levlled for holding Physical Efficiency Test. Further, in this regard as per expert opinion of Divisional Railway Manager and Chairman of Technical committee, U.P. Athletics Association when a race is run on either muddy track or sand spread over the muddy track, there will be lot of difference in timing than normal track specifically if a race is run within fixed time period. It is further opined that it is better not to conduct the race on an unplayable condition/track. If the race is run in this condition then more time than normal will be required to finish the race.
Learned counsel for petitioners further submits that as per the Enquiry Report dated 23.7.2011 of Circle Officer, City, Azamgarh the candidates were required to make themselves available at the Reserve Police Lines Ground, Azamgarh at 5.00 AM on 21.7.2011 and the Physical Efficiency Test was to start at 6.00 AM, however, it was started with a delay of 1 hour 31 minutes and 59 seconds. Curiously enough, this enquiry report clearly indicates that on 21.7.2011 by 6.00 AM there was water logging on the Track. This enquiry report further indicates that as per circular dated 20.7.2011 issued by the Board alternative field which ought to have been chosen for holding the test but on the instructions of the then Reserve Inspector, Police Lines, Azamgarh the recruit constable candidates were required to put sand on the field of water logging portions and then Physical Efficiency Test had taken place with a delay as aforesaid.
It is submitted that from the aforesaid enquiry report three things clearly emerge out:
(i)The recruit candidates for a period of more than one and half hours were required to put sand on the water logged portions on the Tack/field.
(ii)The Board's circular dated 20.7.2011 regarding choosing of alternative filed of of College/Stadium where there was no possibility of water logging at all, was not followed.
(iii)Water logged portions or muddy portions were attempted to be repaired by putting sand, however, that had altered the normal condition of Track which had adversely affected the candidates who were required to run 10 kms in 75 minutes (male candidates) and 5 kms in 45 minutes (female candidates).
It is submitted that vide impugned order dated 21.2.2012, the Member of the Board had rejected the request of petitioners for holding the Physical Efficiency Test a fresh on the ground that there is no provision for second Physical Efficiency Test after a candidate is declared unsuccessful. Moreover, on the same date and on the same field several candidates had successfully undergone their Physical Efficiency Test. The reason to deny to hold Physical Efficiency Test a fresh was totally arbitrary and contrary to the instructions issued vide circular dated 20.7.2011 of the Board.
Further, it is a matter of common knowledge and common sense that a person running in water logged field/track repaired by putting sand shall be less efficient than on normal track and every step of a run will take comparatively more time and force or physical power than on a normal track. Obviously, for this purpose circular dated 20.7.2011 issued by the Board clearly provided for selecting the alternate field and not for holding the Physical Efficiency Test on a repaired field. However, the authorities conducting the Physical Efficiency Test had failed to act as per circular dated 20.7.2011 and had asked the candidates to appear for Physical Efficiency Test on the track/field which was not fit to hold the said test.
It is emphasized by learned counsel for petitioners that merely because some candidates had succeeded in the Physical Efficiency Test that does not mean that petitioners were not fit to qualify the minimum physical efficiency as the ground conditions were not such to determine the minimum physical efficiency of the candidates.
Submission is that the said test was held to determine the minimum physical efficiency and not comparative efficiency of candidates. There may be a person or persons in a group more efficient than others but there could be a person who is normally efficient as per standard. This normal efficiency could not be rejected merely because a candidate or candidates more physically efficient.
It has been vehemently argued by learned counsel for petitioners that the very fact that Physical Efficiency Test on 21.7.2011 could not be held as per schedule time at 6.00 AM and had started late by 1 hour 31 minutes and 59 seconds itself clearly denotes that the condition on field were not suitable to hold the test and it was only after putting sand at several places on the track and repairing the track that the run was held. The report dated 23.7.2011 clearly shows that the recruit candidates were first subjected to physical labour by putting sand over the water logged portions before their participation in the test. Again, it is a matter of common prudence and common sense that the efficiency of a candidate participating in Physical Test at the start of the Test will be altogether different than a candidate or a person who is subjected to physical labour for one hour and more before his participation in the test. The efficiency of such candidates would definitely go down. In the circular dated 20.7.2011 nowhere it is provided that Physical Efficiency Test will be held on a water logged field after repairing the same nor did it provide that the candidates are first subjected to an unscheduled and uncalled for physical labour before start of the test. In such a situation there can be no doubt that the test held on 21.7.2011 at Police Lines, Azamgarh was not objectively held and it was even in violation of circular dated 20.7.2011. The authorities holding the Physical Efficiency Test had, in fact, violated the Board's circular and the rejection of representation of petitioners is not sustainable in the eyes of law.
In Writ Petition No. 4765 (SS) of 2012 apart from above petitioners nos. 1, 2 and 7 fell unconscious during Physical Efficiency Test and in unconscious state they were taken to District Hospital, Azamgarh by the police personnel involved in conducting the Physical Efficiency Test. After being hospitalized, they were medically treated and thereafter discharged. These petitioners have filed their discharge slip which is not disputed. The falling of these persons unconscious can also be attributed to the task assigned to them for repairing the field by putting sand which involved physical labour and also because of subjecting them to run on a repaired field, as such, the Physical Efficiency Test deserves to be held a fresh.
Category II & V Writ Petition No. 8946 (SS) of 2011; Head Constable Rajendra Kumar Misra & 15 others Vs. State of U.P. and Others and Writ Petition No. 9140 (SS) of 2011; Constable Charan Singh and others Vs. State of U.P. and others.
(1) Writ Petition No. 8946 of (SS) of 2011 - The writ petition has been filed challenging the order dated 21.10.2011 passed by a Member of the Board rejecting their representation on the ground that the other candidates have successfully completed the Physical Efficiency Test. Moreover, their representation on the ground that the test organized in a faulty manner and over the field where sand was spread was not acceptable. In the impugned order it is further stated that as there was no provision for holding the Physical Efficiency Test again, the request of the petitioners was, therefore, not acceptable. In this case the Physical Efficiency Test (run) was held on 22.7.2011 at the ground of Police Lines, Azamgarh where heavy rains, undisputedly, had taken place on 20.7.2011 as detailed hereinabove. On this field the test was further held on 21.7.2011 by getting the same repaired first by the recruit candidates by spreading sand and on the same field the test was held on 22.7.2011. Therefore, the grounds which have been agitated by the writ petitioners of aforesaid two class or category, namely, Writ Petition Nos. 6672 (SS) of 2011 and 4765 (SS) of 2012 in regard to the test held on 20.7.2011 and 21.7.2011 on the same field are also available to the petitioners of this writ petition as well.
Besides, these petitioners have given a challenge to the manner of forming of Track and placement of the candidates over the Track. It has been averred in the writ petition that 10 kms of run comprised of 25 rounds on a 400 diameters track. The petitioners had alleged that on the outer line of the 400 diameters track over which 25 rounds were to be completed, 10 candidates were made to stand side by side followed by the similar parallel line of 10 candidates one after the other and in this manner 100 persons in 10 lines, each line comprising of 10 side by side standing candidates, one after the other were simultaneously subjected to the test and that had resulted in covering of long distance by the candidates than required. The petitioners have annexed the Physical Training map relating to run in order to demonstrate that while holding the Physical Efficiency Test by running the candidates necessarily had to be made to stand in such a manner so as the 10th candidate may be standing 10 meters ahead of the first candidate on the outer line of the track and thereby internal distance between each candidate ought to have been maintained so that the candidate in the last at the 10th and the rest of the candidates including the first one on the Track of 10 persons may each have to run only 400 meters in a round and not more.
The case of the petitioners is that by adopting the faulty manner of making 10 persons to stand in one line followed by 9 lines, some of the candidates could not complete 25 rounds within the specified time of 75 minutes by fraction of seconds and in the event of the distance being not more than 400 meters in each round they could well have completed 10 kms within 75 minutes.
It is submitted that the standard manner of placement of candidates in a physical test by run has been indicated by the petitioners vide chart annexed with the writ petition as Annexure No. 5 [Writ Petition No. 8946 (SS) 2011] and the manner in which the candidates were actually placed in the test on 22.7.2011 has also been indicated in the chart annexed as Annexure No. 2 [Writ Petition No. 8946 (SS) 2011] and this question has not been denied by the opposite parties in the counter affidavit.
The manner adopted at the spot while holding the Physical Efficiency Test in such a manner so as to allow 10 persons to stand side by side in one line and thereafter making such 10 lines one after the other each comprising of 10 candidates or making 5 candidates to stand in one parallel line one after the other and thereafter making 20 such parallel lines, apart from resulting in the increase of the distance to be run by the candidates, have also resulted in candidates being over run or pushed by others time and again and because of this also a number of persons fell down either unconscious or resulting into serious injuries, fractures etc. as a result of which a large number of candidates reportedly also died. Subjecting 100 person in a Track of 400 diameters at one time cannot be said to be fair and objective one.
(2) Writ Petition No. 9140 (SS) of 2011; Const. Charan Singh and others Vs. State of U.P. and others - This writ petition has been filed by the candidates appearing in the Physical Efficiency Test held on 22.7.2011 at Reserve Police Lines, Meerut and on 27.7.2011 and at 2nd Battalion, P.A.C. Ground, Sitapur. The making of faulty track in holding the Physical Efficiency Test in regard to Writ Petition No. 8946 (SS) of 2011 has also been alleged by the present petitioners and the Physical Efficiency Test (run) was held in the same manner by making 10 candidates to stand from the outer line of 400 diameters area track side by side and thereafter parallel lines made as indicated in the chart annexed with Writ Petition No 8946 (SS) of 2011.
It is submitted by learned counsel for petitioners that there is no doubt that the chip was placed at the foot of every candidate but as the chip did not indicate the distance covered by a candidate and had only indicated the timing and the rounds were calculated by the installed computer showing no distance. As such, the manner in which the candidates were subjected to undergo Physical Efficiency Test of running was not fair and objective.
Category III Writ Petition No. 1597 (SS) of 2012; Shree Prakash Singh Vs. State of U.P. and others, Writ Petition No. 4528 (SS) of 2012, Writ Petition No. 5548 (SS) of 2011, Writ Petition No. 4491 (SS) of 2012 and Writ Petition No. 7325 (SS) of 2011.
While endorsing the arguments advance relating to the cases above, learned counsel for petitioners submitted that petitioners were not physically fit, however, they were asked to appear in the Physical Efficiency Test consisting of a run of 10 kms in 75 minutes for male candidates and 5 kms in 45 minutes for female candidates. The refusal to accept the request for rescheduling the date of Physical Efficiency Test by opposite parties was totally arbitrary and illegal.
It is submitted that no medical test to ascertain the physical condition of the candidates was held prior to holding of Physical Efficiency Test and the petitioners under the compelling circumstances had to appear in the Physical Efficiency Test by the opposite parties. They were not keeping good health due to one or the other reason, as such, they were either stopped from running in the mid-way or had fainted or otherwise could not complete the test and they were taken to the hospital for medical treatment. The petitioners had made oral request and in some cases in writing for rescheduling the Physical Efficiency Test but the same were turned down in the background of the notice/instructions issued on the admission slip by the authorities.
It is further submitted that the petitioners, who were under medical treatment either at Private Hospitals or in the Government Hospitals, were advised to complete rest by the Doctors, however, they were asked to appear in the Physical Efficiency Test as there was no provision to hold a fresh Physical Efficiency Test for such medically unfit candidates who had either stopped in the mid-way or could not complete the test due to medical problem.
It is further submitted that in the Physical Efficiency Test held at Azamgarh on 20.7.2011/21.7.2011 and 22.7.2011 the condition of Track/Ground was such that it had made more difficult for medically unfit candidates to complete the run in the time prescribed.
It is submitted that petitioner of Writ Petition No. 1597 (SS) of 2012 had completed 24 rounds and was in 25th round when he became unconscious and was declared unfit/unsuccessful. 24 rounds of the Track were completed by the petitioner when the ground was badly water logged and sand was put on the Track in order to dry the field which created much more difficulties to run. Had the conditions were proper for running, petitioner would have definitely completed 25 rounds within the time prescribed.
It is submitted by learned counsel for petitioners appearing in Writ Petition No. 4491 (SS) of 2012 and Writ Petition No. 7325 (SS) of 2011 that certain candidates while participating in the Physical Efficiency Test had either died or fainted. The Board after 4 days of the start of the Physical Efficiency Test took a decision that the medical examination of the candidates shall be conducted before permitting them to appear in the Physical Efficiency Test and request of rescheduling of date of candidates who could not appear in the test due to illness or sickness may be considered. However, petitioners had already appeared in the Physical Efficiency Test before the said decision was taken. They were not provided opportunity to make a request for rescheduling of date for holding of their Physical Efficiency Test. Moreover, in the admission card it was specifically mentioned that no request for change of time or examination center would be accepted. Petitioners, as such, were discriminated.
It is also submitted that no written request for rescheduling of date was entertained by the authorities before the Physical Efficiency Test of petitioners were held.
Under the similar facts and circumstances in the case of Chandra Prakash Tiwari Vs. State of U.P. and others; Writ Petition No. 81 (SS) of 2012, the Court had allowed the writ petition with direction to opposite parties to retest the petitioners in respect to running for the purpose of promotion and thereafter consider his candidature for the post of Sub Inspector. The special appeal preferred against the said order was disposed of with the observation that the direction issued by the learned Single Judge shall be followed, however, it may not be treated as a precedence. The Special Leave Petition preferred before the Apex Court was dismissed.
It is submitted that the case of petitioners is similar in nature and, as such, they are entitle to get another opportunity to appear in the Physical Efficiency Test.
Category IV Writ Petition No. 8333 (SS) of 2011; Constable Ratnesh Kumar Tripathi and others Vs. State of U.P. and others.
These petitioners four in number are those who were unable to appear in the Physical Efficiency Test on the date fixed.
Petitioner-Constable Ratnesh Kumar Tripathi had met with a serious accident on 09.05.2011 resulting in multiple fractures. The date of Physical Efficiency Test was fixed as 03.08.2011 which on the representation made by petitioner was postpone to 16.8.2011. However, the petitioner was not fit on the date fixed to appear in the Physical Efficiency Test, as such, he could not appear to undergo Physical Efficiency Test. The Deputy Inspector General of Police, P.A.C., Lucknow vide letter dated 15.8.2011 had informed the Chairman of the Board regarding the medical report of the petitioner with request to give him a chance in the Physical Efficiency Test after being declared fit. Petitioner after being declared fit by the Doctor on 15.10.2011 had made a request to the Chairman of the Board for providing opportunity to appear in the Physical Efficiency Test. However, he was not given such opportunity.
Petitioner-Constable Satya Pal Singh was asked to appear in Physical Efficiency Test at 2nd Battalion, PAC Ground, Sitapur on 09.08.2011 although he was present on the field but as per Doctor's advice since the Blood-Pressure of petitioner was very high so he could not participate in the test and was advised for proper medical examination. Thereafter, petitioner was admitted in the Mahanagar Nursing Home, Mahanagar, Lucknow for thorough check-up. As per Doctor's advice one month's rest was required for the petitioner. Petitioner made request on 16.8.2011 through Superintendent of Police, Bahraich for permission to appear in the Physical Efficiency Test but he was not permitted.
Petitioner-Constable Anirudh Kumar Sharma petitioner could not appear in the Physical Efficiency Test as he met with serious accident on 28.5.2011 due to which couple of his ribs got fractured. Petitioner was granted sanctioned leave by the Senior Superintendent of Police, Kanpur Nagar. He preferred representation dated 20.8.2011 through Deputy Inspector General of Police-cum-Senior Superintendent of Police, Kanpur Nagar for providing a chance to appear in the Physical Efficiency Test, however, no opportunity was given.
Petitioner-Constable Sushil Kumar Yadav, at time when the date was fixed for Physical Efficiency Test, was suffering with typhoid and as per Doctor's advice he could not participate in the Physical Efficiency Test. The Dy. Commandant, 30th Battalion, P.A.C., Gonda vide letter dated 05.07.2011 had informed the Additional Secretary of the Board about the bona fide grievance of petitioner. Petitioner after becoming fit had requested for opportunity to appear in the Physical Efficiency Test but no such opportunity was provided.
It is submitted by learned counsel for petitioners that petitioners could not appear in the Physical Efficiency Test due to the serious illness and the reasons beyond their control, as such, they may not be treated to be unsuccessful/unfit in the Physical Efficiency Test and shall be provided another opportunity to appear in the Physical Efficiency Test.
It is further submitted that petitioners have cleared the written examinations and in the Physical Efficiency Test they could not appear due to the reasons beyond their control, as such, their candidature for promotion on the post of Sub Inspector (Civil Police) may not be rejected merely because they could not appear in the Physical Efficiency Test on the date fixed by the opposite parties.
Category V Writ Petition No. 5254 (SS) of 2011; Sudhakar Pandey Vs. State of U.P. and ors, Writ Petition No. 5259 (SS) of 2011; Anand Kumar Maurya Vs. State of U.P. and ors, Writ Petition No. 5167 (SS) of 2011; Kundan Kumar Singh Vs. State of U.P. and others, Writ Petition No. 5160 (SS) of 2011; Bharat Singh Vs. State of U.P. and others, Writ Petition No. 5163 (SS) of 2011; Hari Saran Singh Vs. State of U.P. and others and Writ Petition No. 5540 (SS) of 2011; Madhur Shyam Ojha Vs. State of U.P. and others.
All these writ petitions relate to the candidates who had appeared in the Physical Efficiency Test held on 04.08.2011 at 2nd Battalion, P.A.C. Ground, Sitapur. The main ground on which the writ petitions have been filed is that the Track on which petitioners were made to run a distance of 10 kms in 75 minutes was more than 400 meters and the manner in which the said test was held was not fair and objective.
Learned counsel for petitioners submits that as per circular dated 01.06.2011 issued by the Board the length of Track was required to be 400 meters whereas it was, in fact, 410 meters at Sitapur.
It is further submitted that the Court by separate interim orders had issued directions to the Board to get the Track measured by an expert person in presence of the petitioners and a report shall be placed before the Court. The Board in pursuance of the interim orders had constituted a committee comprising of Sri Bhalendra Bhushan Singh, Additional Superintendent of Police (North), Sitapur, Sri Balikaran Singh Yadav, Deputy Commandant, 2nd Battalion, P.A.C., Sitapur and Sri Neeraj Mishra, District Sports Officer, Sitapur for measuring the Track on which petitioners had run and submit a report. The said committee had measured the Track on 30.8.2011 and submitted the report dated 30.8.2011. However, the committee which had measured the Track did not have any expert as its members. The Committee only measured the inner-circle of the Track whereas none of the candidates run nor were they instructed to run in the inner-circle of the Track. The candidates were asked to stand in a row of 10 side by side and 100 candidates were asked to run simultaneously, as such, it was not practically possible that all the candidates had to run in the inner-circle of the Track.
Submission is that the aforesaid measurement by the Committee constituted in pursuance of interim orders passed by the Court had not adopted fair and proper manner to measure the Track and the said measurement was faulty. Moreover, the said Committee did not have any expert as its member, as such, the report submitted by the said Committee was liable to be rejected.
It is submitted that the Track at 2nd Battalion, P.A.C., Sitapur on which the petitioners had run was 410 meters and not 400 meters and thus it was apparent that the petitioners had run a distance of more than 10 kms in 75 minutes or little over which could not be a ground for declaring the petitioners to have failed in the Physical Efficiency Test. The Board or the Committee which oversee the run of the petitioners never got the track measured before the run took place and the entire run was conducted on the assumption that the track on which the petitioners had run was 400 meters in length and each of the candidates had to complete 25 rounds of the track concerned in 75 minutes irrespective of the distance run by them and those who completed 25 rounds in 75 minutes or even less were declared successful and those who had run less than 25 rounds in 75 minutes or less were declared unsuccessful. There was no method to measure the actual distance run by a candidate.
It is further submitted that the Physical Efficiency Test was qualifying in nature without it being either competitive or any marks being allotted to each of the candidates and in that view of the matter the Board ought to have adopted a flexible approach towards the run and a slight variation in the distance or the time taken for the run could not be made a ground for disqualifying the petitioners. Since the Board did not give any advantage to any candidate who had run the distance in less than 75 minutes, the Board also could not disqualify any candidate who had completed the run in a little more than 75 minutes and the candidates who had failed to complete the distance of 10 kms in 75 minutes by fraction of minutes could not have been disqualified.
It is also submitted that the ability to run a distance of 10 kms in 75 minutes or less or more would vary from candidate to candidate and in that view of the matter also the Board could not have stuck to a rigid stand that every candidate had to complete 25 rounds of a track in 75 minutes and neither less nor more. The run being a part of Physical Efficiency Test which was qualifying in nature, the mere fact that some of the candidates have not completed 25 rounds of the Track in 75 minutes, could not be made a yardstick for declaring him to be physically inefficient to participate further in the selection process.
Learned counsel for petitioners vehemently submitted that in absence of the actual measurement of the Track which was only an assumption that the Track was 400 meters in length and thus it is apparent that the petitioners have been declared unsuccessful without there being any data available with the Board as to whether the petitioners had run 10 kms in 75 minutes or not.
The above approach of the Board is contrary to Rule 16 (a) of U.P. Sub Inspectors and Inspectors (Civil Police) Service Rules, 2008 as amended in 2009 (for short 'the Rules of 2008') and in that view of the matter the entire action of the opposite parties is vitiated under law.
It is submitted that it is elementary knowledge that in a circular track if the inner circle is 400 meters each of the outer concentric circles would be more than 400 meters and in absence of any instructions that all the candidates had to run in the inner-circle together with the fact that there is nothing on record that all the candidates both successful and unsuccessful had run in the inner-circle clearly indicates that some of the candidates had run a distance of more than 10 kms in 75 minutes and in that view of the matter alone the impugned action of the opposite parties is apparently arbitrary and illegal.
It is further submitted that it is the specific case of the petitioners that they had completed 25 rounds of Track at 2nd Battalion, P.A.C. Ground, Sitapur in various times. In some cases they had completed 25 rounds of the Track in 75 minutes and 18 seconds, in some cases in 74 minutes 52 seconds. In Writ Petition No. 5160 (SS) of 2011, petitioners had completed 24 rounds of the Track in 67 minutes 28 seconds. In Writ Petition No. 5540 (SS) of 2011 petitioner has completed 24 rounds of the Track in 74 minutes. In one case, petitioner has completed 25 rounds in 75 minutes 10 seconds.
It is further submitted by learned counsel for petitioners that the manner in which the candidates were asked to stand in a row consisting of 10 persons standing side by side and thereafter 10 such rows and in total 100 candidates who were asked to run simultaneously was not the correct and proper method to hold the Physical Efficiency Test and, as such, it was reasonably not fair and objective.
Mohd. Mansoor, learned Chief Standing Counsel appearing for the State, on the other hand, submitted that petitioners are those Head Constables and Constables who have failed to qualify the Physical Efficiency Test as required under Rule 16 (b) of the Rules of 2008. The petitioners after failing in the Physical Efficiency Test have approached the Court challenging the Selection including its mode and manner as well as the Service Rules under which the selection was held and have prayed for an additional chance to appear in the Physical Efficiency Test, which cannot be permissible under law.
It is submitted that around 88 per cent of candidates had qualified the Physical Efficiency Test and near about 12 per cent of candidates were unsuccessful in the test. As such, majority of candidates were successful in the Physical Efficiency Test.
The candidates who had participated in the selection were fully aware of the manner and mode of selection and after being declared unsuccessful or fail in the Physical Efficiency Test, cannot be permitted to challenge the same. Circular dated 01.06.2011 clearly provided that every day one race of 100 candidates will be held and para 6.6 of the said circular provided that the male candidate will have to complete 25 rounds of 400 meter Tack.
It is a settled legal position that a person only after he found that his name does not figure in the merit list and invokes the jurisdiction of the High Court under Article 226 of the Constitution of India is not entitle to question the very same selection in which he had participated. This legal position has been emphasized in its judgments by the Apex Court as well as this Court.
In the case of Manish Kumar Shahi Vs. State of Bihar and others; (2010) 12 Supreme Court Cases 576, the Apex Court has held that a person who has invoked the jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list desentitles himself from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.
The relevant paragraph 16 of the aforesaid judgment on reproduction reads as under:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner involved jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly desentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal V. State of J&K, Marripati Nagaraja V. Govt. of A.P., Chananjay Malik V. State of Uttaranchal, Amlan Jyoti Borooah Vs. State of Assam and K.A. Nagmani V. Indian Airlines."
Learned Chief Standing Counsel further submitted that there is no provision under the Rules of 2008 for grant of an additional opportunity to the failed candidates. Considering the aforesaid fact, the Court has dismissed several writ petitions. Few of them for illustration are given as under:
(1) Sanjeev Kumar Dwivedi & others Vs. State of U.P. & others; Special Appeal No. 659 of 2010 decided on 30.11.2011. Relevant paragraph on reproduction read as under:
".....But when the same is prohibited by the rules applicable prospectively and condition of the advertisement, whereby undertakings are also obtained from the candidates for only one physical fitness test, and if similar order is passed even thereafter, it will make the rules scrap. The prayer/s will have to be turned down when rules are specific in this regard and undertakings are given by the candidates and particularly when the service is a police service, where fitness and discipline are utmost requirements irrespective of their appointments either for physical work or for ministerial work attached to police department. Importance of fitness and discipline in the police force is the order of the day, as observed by the people in the common parlance. Therefore, if any relaxation is shown therein, such relaxation may affect the society at large and, as such, no routine order is to be passed on that score......"
(2) Sumit Kumar Pandey Vs. State of U.P. & others; Special Appeal No. 476 of 2010 decided on 30.11.2011.
(3) Sanjeev Kumar Dubey Vs. State of U.P. & others; Writ Petition No. 7490 (SS) of 2011 decided on 14.10.2011. Relevant para on reproduction reads as under:
"Admittedly, petitioners participated in the physical test but they failed. Now, they are seeking re-test which is not permissible under law.
Petition is accordingly dismissed."
(4) Constable Davindra Singh & others Vs. State of Haryana & others; (1996) SCC (L&S) 478. Relevant para 8 of the judgment on reproduction reads as under:
"Further contention raised was that since the scheme has been scrapped, liberty may be given for conducting a fresh test by an independent body. Mr. K.C. Bajaj, learned counsel for the respondents, stated that selection test cannot exclusively be conducted for the applicants. It may not be proper to give any direction to selection process if vitiated by mala fide or arbitrary exercise power or any other factor which goes to the rot of the selection. Except that one of the officers' relative was stated to be member of the selection committee, nothing worthwhile could be found from the record to hold that the selection is vitiated by mala fide or is beset with illegality to give direction to make fresh selection of the appellants."
Learned counsel for opposite parties also submitted that the question as to whether Track/field was of 400 meters length or 410 meters length, whether candidates were running in the outer circle or inner circle, whether the Track was muddy or not are all disputed question of facts, which cannot be agitated under Article 226 of the Constitution of India.
It is well settled legal position that in writ petitions a roving enquiry on the factual aspect is not permissible.
In the case of P. Radha Krishna Naidu & others Vs. Government of Andhra Pradesh & others; (1977) 1 SCC 561, the Apex Court has held as under:
"13. One of the petitioners, namely, the first in Writ Petition No. 97 of 1976, challenged the order of compulsory retirement on the ground that he did not complete 25 years of service. He alleged that he was appointed on September 10, 1952 and, therefore, the order of compulsory retirement dated September 23, 1975 is bad. The State on the other hand contends that the correct date of appointment of the first petitioner is July 25, 1950. In writ petitions the Court does not go to into disputed questions of fact, like age as in the present case.
14. Further it has to be observed that in the present writ petitions several petitioners have combined as petitioners. Their causes of action are separate and independent. Each is alleged to be an instance of individual assertion of constitutional right in regard to facts and circumstances of each case. Where several petitioners combine for alleged violation of their rights, it is difficult for court to go into each and every individual case. In the present case the affidavit evidence on behalf of the State is preferred and, therefore, the first petitioner cannot agitate the question of disputed age."
Again, in the case of Sadanand Halo & others Vs. Momtaz Ali Sheikh & others; (2008) 2 SCC (L&S) 9, the Apex court has held as under:
"58. It is settled law that in such writ petitions a roving inquiry on the factual aspect is not permissible. The High Court not only engaged itself into a non permitted fact finding exercise but also went on to rely on the findings of the Amicus Curaie, or as the case may be, the Scrutiny Team, which in our opinion was inappropriate. While testing the fairness of the selection process wherein thousands of candidates were involved, the High Court should have been slow in relying upon such microscopic findings. It was not for the High Court to place itself into a position of a fact finding commission, that too, more particularly at the instance of those petitioners who were unsuccessful candidates. The High Court should, therefore, have restricted itself to the pleadings in the writ petition and the say of the respondents. Unfortunately, the High Court took it upon itself the task of substituting itself for the Selection Committee and also in the process assumed the role of an Appellate Tribunal which was, in our opinion, not proper. Thus, the High Court converted this writ petition into a public interest litigation without any justification.
59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India & Ors. v. S. Vinod Kumar & Ors [(2007) 8 SCC 100] where one of us (Sinha, J.) was a party. This was a case where different cut off marks were fixed for the unreserved candidates and the Scheduled Caste and Scheduled Tribes candidates. This Court in para 10 of its judgment endorsed the action and recorded a finding that there was a power in the employer to fix the cut off marks which power was neither denied nor disputed and further that the cut off marks were fixed on a rationale basis and, therefore, no exception could be taken. The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla & Ors. [(1986) Supp. SCC 285] where it has been held specifically that when a candidate appears in the examination without protest and subsequently found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise."
Learned counsel for the opposite parties further submitted that the condition of running 10 kms in 75 minutes is not unreasonable as fitness plays a very vital role in discipline force like Police. In this regard, he relies on the decision of this Court in the following cases:
(1) Judgment and order dated 20.7.2011 passed in Writ Petition No. 39622 of 2011; Ramesh Singh and others Vs. State of U.P. and others.
In the above mentioned case the petitioners had challenged the clause (b) of Rule 16 of the Rules of 2008 which relates to passing of Physical Efficiency Test. The relevant paragraphs of the said judgment on reproduction reads as under:
"The contention of the petitioners is that they have been appointed in the police department in the year 1987. Since 2000 though there were vacancies but no step had been taken to fill up the vacancies on the post of Sub-Inspector. In the year 2008 the Rules namely, Rules, 2008 has been framed which provided that both, Constable and Head Constables, who have completed three years of service are eligible to appear in the examination. The petitioners appeared in the written examination and qualified. Now the petitioners have been called for the physical efficiency test.
The contention of the petitioners is that by passage of time their age has increased and it is not possible for them to run 10 kilometers in 75 minutes.
Learned counsel for the petitioners submitted that this condition is applicable both to the Constables as well as to the Head Constables. The Constables are more younger than the Head Constables. Even in the case of physical efficiency test of the Constables some of the Constables died. Therefore, this condition of physical efficiency test in the case of Head Constable is not reasonable condition and is liable to be modified. He further submitted that the Director General of Police has also recommended the Government to relax the aforesaid condition and it is reported in the Pioneer Newspaper dated 10.07.2011.
He further submitted that the vacancies occurred between 2000 to 2008 are to be filled on the basis of the procedure prevailing at the time of creation of the vacancies and not under the present Rules, 2008 as amended time to time.
Sri Y.K. Srivastava, learned Standing Counsel submitted that Rules, 2008 has been amended by notification no.203/(1)6/pu-10/27(7)/2008TC, dated 05.04.2010 and Rule 30 has been inserted. Rule 30 has been subsequently, amended by The Uttar Pradesh Sub-Inspector And Inspector (Civil Police) Service (Third Amendment) Rules, 2010 (hereinafter referred to as the "Amended Rules"), which provides: (1) that the provisions of these rules shall have effect notwithstanding anything to the contrary contained in any other rules, Government order or Administrative instructions, made or issued by the State Government; (2) The orders of the Government issued from time to time with regard to matters connected with or incidental to the selection, promotion, training, appointment, determination of seniority and confirmation etc. of Sub Inspectors and Inspectors of Civil Police in Uttar Pradesh Police Force shall stand rescinded and revoked ab-initio. Under the aforesaid rules all the Government orders have been rescinded and can not be looked into. He submitted that this question came up for consideration before the Division Bench of this Court in the case of Shiv Gopal Gupta and others Vs. State of U.P. and others, wherein the question of promotion from Sub-Inspectors to Inspector was involved and with regard to the aforesaid amendment it has been held that all the earlier Government Orders, Rules etc. have been rescinded and the promotion shall be made in accordance to the amended Rules. He further submitted that the condition of physical efficiency test namely, the running of 10 kilometers in 75 minutes is not unreasonable condition. Sub-Inspector and Inspector should be physically fit, which is essential for the police force. Unless they are physically fit, they can not discharge their duties properly and, therefore, the said condition can not be said to be unreasonable.
I have considered the rival submissions. The rules are not under challenge in the present writ petition. Rules, 2008 has been amended by notification no.203/(1)6/pu-10/27(7)/2008TC, dated 05.04.2010, by which Rule 30 has been inserted. Rule 30 has been subsequently amended by Amended Rules, wherein it has been stated that all the rules, Government Order or Administrative instructions have been rescinded. Therefore, the submission of learned counsel for the petitioners that the conditions, which are prevalent at the time of vacancy are to be considered can not be accepted. Moreover, the petitioners appeared in the written examination under the Rules, 2008 and submitted themselves in the examination and, therefore, they can not claim that these rules are not applicable to them. No such ground has also been taken in the writ petition. Therefore, the argument stands rejected.
Now coming to the question whether the condition of physical efficiency test namely, running of 10 kilometer in 75 minutes is reasonable or not. I do not see that this conditions is unreasonable. The post of Sub-Inspector is an important post in the hierarchy of police force. The efficient working of the police force depends upon the physical fitness of the policeman and in case they not physically fit, they can not discharge their functions properly. Therefore, I do not see that the condition of physical efficiency test, namely, running of 10 kilometers in 75minutes can be said to be unreasonable. The validity of Rule is not challenged. The requirement of running of 10 kilometers in 75 minutes for physical efficiency test is under Rule. This condition must has been provided on the consideration of various factors. Therefore, there is absolutely no reason to interfere in the matter.
It is seen that the external physical appearance of some of the policemen are not in consonance with the fitness requirement. They do not appears to be physically efficient and normally seen sitting at the corner of crossing under the shed or sleeping during the duty hours. This may be on account of lack of physical fitness. Physical fitness plays a very important role in the discharge of their assigned duties and there should be no compromise in this regard.
In my view, there should be periodical physical test of Constables and other police officers particularly those who are in field atleast after interval of six months. In case their physically fitness is not found to be proper and upto the requirement, necessary action may be taken in accordance to law.
With the aforesaid observation, the writ petition stands dismissed The certified copy of this order may be provided to the learned Standing Counsel for forwarding the same to the Director General of Police, Lucknow for necessary action."
(2) Judgment and order dated 25.8.2011 passed in Special Appeal No. 1596 of 2011; Ramesh Singh Vs. State of U.P. and others. The relevant paragraphs of the judgment on reproduction read as under:
"Fixation of standards for physical test is a matter of policy and it is not within the domain of this Court to determine them as they are fixed by the specialists taking into consideration various factors such as the function which an incumbent in service is expected to perform and physical efficiency which he is required to possess in order to effectively discharge his duties. At this stage, we may observe that the selection in which the petitioner-appellant participated was that of a post of Sub Inspector which is very important in the police force. The efficiency of the force much depends upon the physical fitness and thus the condition prescribed to test physical efficiency of the incumbent seeking promotion to the post of Sub Inspector namely, running 10 Kms. in 75 minutes can neither be stated to be unreasonable nor arbitrary.
Apart from above, the argument that the State Government has power to relax the conditions under Rule 28 is also misconceived. Rule 28 is extracted herein below:
28. Relaxation from the conditions of service - Where the State Government is satisfied that the operation of any rule, regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may, notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the cases in just and equitable manner."
A perusal of the above Rule shows that the power of relaxation is vested in the State Government to relax a Rule regulating the conditions of service. In the present case, the conditions prescribed for physical efficiency test is in respect of promotion to a particular post and has nothing to do with the conditions of service. We are, therefore, of the view that Rule 28 has no application in the case of conditions prescribed for recruitment/promotion to a particular post.
In view of above facts and discussions, we find no reason to differ with the view taken by learned single Judge. The appeal being without merit is dismissed summarily. "
Learned Chief Standing Counsel contended that so far as the contention of learned counsel for petitioners that Track was of more than 400 meters (410 meters), as such, they were required to run more than 10 kms in 75 minutes is concerned, it relates particularly to those candidates who had appeared in the Physical Efficiency Test at 2nd Battalion, P.A.C., Sitapur on 04.08.2011 and had failed to qualify the test.
On 04.08.2011, 100 candidates had participated in the Physical Efficiency Test and 93 candidates candidates had successfully qualified the test and 7 persons were unsuccessful. Petitioners are those who were unsuccessful in the test.
It is further submitted that petitioners were all along aware of the mode and manner of running in the Physical Efficiency Test, which is evident from the circular dated 01.06.2011 which was issued much prior to the date of holding of Physical Efficiency Test.
In the case of Sudhakar Pandey (Writ Petition No. 5254 (SS) of 2011), the Court after considering the submissions made by petitioners in its benevolence had passed interlocutory order dated 18.8.2011 "as petitioner is not able to submit any cogent evidence in support of his submission, therefore, I hereby issue direction to the opposite party no. 2 to get measured the track, upon which petitioner had run, by the expert person in presence of the petitioner and place the report before this Court by the next for orders".
In pursuance of the order aforesaid of this court, Track was measured on 30.8.2011 in the presence of petitioner and three other Constables who too have filed writ petitions before the Hon'ble Court. For the measurement of Track, a committee comprising of (i) Deputy Commandant, 2nd Battalion P.A.C., Sitapur, (ii) Additional Superintendent of Police, District Sitapur and (iii) District Sports Officer, Sitapur (expert person) was constituted. The Committee measured the Track and gave a finding that the Track was of 400 meters length. Petitioners had signed on the said report without any protest.
It is submitted that when the Committee had submitted its report the petitioners came up with yet another excuse that measurement of Track was wrongly done as District Sports Officer was not an expert person for the measurement of the Track as he belongs to swimming discipline and not Athletics.
The submission is that the said plea is not acceptable as the Service Rules governing the post of District Sports Officer do not lay down any condition that the District Sports Officer should be of only Athletics discipline, therefore, the finding of the Committee dated 30.8.2011 that the Track was of 400 meters cannot be doubted. Furthermore, it is only an afterthought of petitioners that they had given a representation dated 31.8.2011 challenging the report of the Committee dated 30.8.2011.
Learned Chief Standing Counsel emphasized that on the same very Track where petitioners had failed 93 out of 100 candidates had qualified the test. Moreover, none of the participating candidates had lodged any protest with regard to length of Track and their performance was not affected in any manner whatsoever.
It is also submitted by learned Chief Standing Counsel that the plea of petitioners that the candidates in the inner circle of the circular track were required to run less in comparison to the candidates running in the outer circle and the manner and mode of asking the petitioners to stand up on the Track for the purpose of running cannot be accepted as they were already aware of the criteria as well as the manner and mode of holding of Physical Efficiency Test declared vide circular dated 01.06.2011. No candidate had raised any objection prior to holding of the test. The candidates were not required to run in a particular Track and were at liberty to change the Track during the test. For the purpose of measuring laps and the timing of a candidate while running, a very advance level of technology, namely, Champion Chip technology was used which was attached to a candidate's shoelace. In fact, after the start of the run all the candidates had converged at the inner most circle and all of them were running in the inner circle and none of the candidates were running in the outer circle. The said fact can also be verified from the photographs taken during the said test.
It is submitted that the Physical Efficiency Test was of qualifying nature only and it was not competitive manner meaning thereby that each candidate had its own timing which commenced as soon as he crossed the tartan mat and not prior to that.
It is also submitted that the entire Physical Efficiency Test was video-graphed and the shots taken from the video clip would reveal that there was no such demarcation for inner circle or outer circle for the purpose of running.
So far as the plea of petitioners' counsel that conditions of Track due to rains were not conducive to hold the Test as there was water logging, muddy condition of the Track, etc. is concerned, it basically relates to the Track/Field of District Azamgarh. It is submitted that on 22.7.2011, 99 candidates had participated in the Physical Efficiency Test at Azamgarh out of which 73 candidates were successful and only 27 candidates were unsuccessful. Representation of all those candidates which was made after they being declared unsuccessful was rejected being not maintainable.
It is submitted that on 20.7.2011 the Physical Efficiency Test had commenced and after the start of Physical Efficiency Test rains had started, however, the race continued as it was not affecting the performance of the candidates which is also evident from the fact that out of 99 candidates, 76 candidates had qualified the test and only 23 had failed to qualify the test meaning thereby that majority of candidates had qualified the test.
It is further submitted that on 21.7.2011 another race was held but only after the ground was approved by the team of observers comprising of Deputy Commandant, 20th Battalion, P.A.C., Sub-Divisional Magistrate, Azamgarh, Joint Director and Circle Officer, Sadar. There was no water logging on the ground on 21.7.2011 and 22.7.2011 as sand was put on the patches having soggy soil. Petitioners have relied on an enquiry report dated 23.7.2012, the enquiry was held after a gap of one year from the date of test and hence cannot be said to be authentic. Moreover, the said report is silent so far as the test held on 22.7.2011 is concerned. In the supplementary counter affidavit, the opposite parties have stated that the water which collected on certain parts on the Track/Field due to rain on 20.7.2011 was removed in the evening of 20.7.2011 itself and the field was dried well before taking the Physical Efficiency Test on 21.7.2011. It was inspected by the observers and found fit from all corners and only thereafter the Physical Efficiency Test was held.
So far as the plea of illness is concerned, the candidates had participated in the Physical Efficiency Test without raising any objection and without informing the authorities that they are physically not fit to participate in the test. They have raised these pleas in the writ petition after being declared failed in the Physical Efficiency Test which is not acceptable.
It is submitted that vide circular dated 10.8.2011 and 12.8.2011 the opposite parties have permitted those candidates to appear in the Physical Efficiency Test by refixing the dates who could not participate in the test and has given a valid medical certificate issued by the concerning Chief Medical Officer and forwarded by the Head of the Department. The next date for such candidates was fixed as 16.8.2011 which was subsequently changed to 20.8.2011. Only 46 candidates in total were given chance to run after refixing the dates for their Physical Efficiency Test and considering their ground of illness. Out of 46 candidates, 30 did not participate and only 16 candidates participated, 12 candidates qualified and 4 failed.
It is submitted that in spite of opportunity provided by the opposite parties many of the candidates did not participate in the Physical Efficiency Test which was rescheduled.
It is emphasized by learned Chief Standing Counsel that in the entire Physical Efficiency Test the percentage of qualifying candidates was 88 per cent which itself clearly goes to show that the conditions and the mode & manner in which the Physical Efficiency Test were held were just and proper and cannot be said to be wrong or illegal.
So far as the request of petitioners for holding the retest on the ground of illness is concerned it has been considered and rejected by this Court in the case of Jagat Pal Singh and others Vs. State of U.P. and others; Writ Petition No. 44285 of 2011 decided on 08.08.2011 with the following observations:
"By means of the present writ petition, the petitioner is seeking one more chance to appear in the Physical test. The prayer of the petitioner cannot be accepted in the absence of any provision for the second physical test."
The special appeal preferred against the judgment of learned Single Judge was also dismissed with the following observations:
"In Sitapur, it was not a case that the participants having failed to qualify on account of illness were given second opportunity to clear physical efficiency test but was a case where the candidates could not participate on account of high blood pressure and for them special physical fitness test was held.
The petitioner-appellant though may have been suffering from some physical ailment as alleged, but there is nothing on record to demonstrate that he brought this fact to the notice of the authorities. He willingly appeared in the physical efficiency test and after having failed to qualify the same, he cannot be permitted to turn around and make a claim for a second opportunity on the ground that he could not qualify because of some physical ailment."
The candidates who did not participate in the test on the ground of illness and thereafter on their own request were given opportunity to participate in the test but did not avail the same cannot be given another chance. This question has also been considered and writ petition preferred was dismissed by the Court vide judgment and order dated 02.04.2012 passed in Writ Petition No. 1581 (SS) of 2012; Constable Dinesh Kumar Pandey and others Vs. State of U.P. and other. The operative portion of the said judgment on reproduction reads as under:
"Looking to the request of the petitioners as well as similarly situated other candidates the department had provided them another opportunity to appear in the physical test examination on 20.8.2011. The petitioners for various reasons did not appear on the date fixed. The physical test examination was finalized on 20.8.2011. The writ petition preferred by them i.e. Writ Petition No. 8247 (SS) of 2011 was disposed of with the observation that the opposite parties shall consider and decide their representation. The representation of the petitioners has been considered and decided by the order dated 06.12.2011 holding that since the petitioners did not appear on the date fixed i.e. 20.8.2011, which was fixed on their own request and the physical test was completed on 20.8.2011 as such now the request of the petitioners cannot be exceeded and representation is accordingly rejected.
I do not find any infirmity or illegality in the impugned order as the petitioners had failed to avail the opportunity provided to them to appear and pass the physical test examination.
The judgment passed by this Court in the case of Constable Chandra Prakash Tiwari (supra) is of no benefit to the petitioners as in that case the petitioner had appeared in the physical test examination but due to his illness, he could not clear the same. The department had provided opportunity to certain candidates to reappear in the physical test and considering the said fact, the Court had directed the opposite parties to retest the petitioner.
In the present case, the petitioners did not appear in the physical test examination, although the date was fixed on their own request, as such, the facts of the case in hand are altogether different. Therefore, the direction issued to the opposite parties in the aforesaid judgment cannot be extended to the petitioners.
For the facts and reasons given above, the writ petition is liable to be dismissed, it is accordingly dismissed."
It is submitted that all these writ petitions are liable to dismissed.
In the rejoinder to the submissions made by learned Chief Standing Counsel, Dr. L.P. Mishra, learned counsel for petitioners submitted that petitioners are neither challenging the vires of the rules nor the procedure prescribed under the circular dated 01.06.2011. The challenges in the present writ petitions are mainly to the manner in which the said procedure was adopted and the intentions of the authorities to put the candidates to Physical Efficiency Test on the grounds which were not suitable for holding such test. It is also submitted that petitioners participating in the Physical Efficiency Test on 20.7.2011 have been put to hostile discrimination as they have not been given the benefit of circular dated 20.7.2011.
It is further submitted that there can be nothing more evident than the fact that several candidates had fallen unconscious and even some of them had died while undergoing the Physical Efficiency Test. The authorities taking the test themselves had taken some of the candidates to hospital and got them admitted for illness. Petitioner Nos. 1, 2 & 7 of Writ Petition N0. 4567 (SS) of 2012 fell unconscious while running, they were taken to hospital and discharged only after treatment.
It is also submitted that the judgment of this Court in the case of Jagat Pal Singh (supra) as well as Sanjeev Kumar Dwivedi (supra) as relied by learned Chief Standing Counsel would not be applicable in the changed circumstances as the opposite parties themselves vide circular dated 10.8.2011 and 12.8.2011 had provided opportunity to certain candidates to appear in the Physical Efficiency Test by refixing the date as 16.8.2011 which was subsequently changed to 20.8.2011 after the Physical Efficiency Test were over, as such, it cannot be said that candidates having failed to qualify on account of illness cannot be given second opportunity to clear the Physical Efficiency Test as there is no such provision under the Rules.
It is further submitted that the question of maintainability of writ petition filed on behalf of the candidates after declaration of result of written test of the same selection relating to which the present Physical Efficiency Test was subsequently held was considered by this Court and the preliminary objection raised in this regard by the opposite parties was rejected by the Court vide order dated 19.4.2012 passed in a bunch of writ petitions leading being Writ Petition No. 3918 (SS) of 2011; Aarakshi Vimal Kumar Singh & ors Vs. State of U.P. & ors.
I have considered the submissions made by learned counsel for the parties.
These bunch of writ petitions have been filed challenging the Physical Efficiency Test held by the opposite parties after the declaration of result of written test for selection/promotion on the post of Sub Inspector (Civil Police) Ranker which were held mainly at four grounds during the period 20.7.2011 to 04.08.2011 by the opposite parties.
It would be appropriate to first decide the question as to whether the writ petitions preferred by the candidates who were declared unsuccessful in the Physical Efficiency Test are maintainable or not.
Petitioners are basically aggrieved against the alleged faulty manner adopted by the authorities in holding the Physical Efficiency Test, which is either violative of the circulars issued by the authorities or the manner and mode of holding the Physical Efficiency Test was such which was either totally unreasonable and unconscionable or is such that is against the very common sense and basic principles on which it is not acceptable. It has been categorically stated before the Court by learned counsel for petitioners that they are not challenging the vires of the Rules of 2008 or the procedure enumerated vide circulars issued by the Department in this regard. Their challenge is only to the manner and mode in which the said procedure was adopted on spot i.e. at the time of holding the Physical Efficiency Test by the authorities.
It is to be noted that the question of maintainability of writ petitions by the candidates who had failed in the written test held by the opposite parties relating to the same selection regarding which the present writ petitions have been filed was considered by this Court vide order dated 19.4.2012 in the case of Aarakshi Vimal Kumar Singh (supra). The relevant observations of the Court on reproduction read as under:
"It appears that the written examination was held on 13.3.2011 which consisted of 3 papers. The 3rd subject and the 4th subject were clubbed in the 3rd papers. The question, as to whether it was necessary to hold separate paper for each subject or any 02 subjects could have been clubbed in one paper and what was the affect of such clubbing and whether in any manner it adversely affected the candidates, requires consideration. It is also to be considered as to whether any decision was taken by the Board to hold the written examination in the manner as per the schedule given in the admit cards to the candidates.
It is admitted position that after holding of the written examination decision was taken by the opposite parties to cancel certain questions and to change the model answers of certain questions and instead of giving general marks of the cancelled questions to all the candidates, distribute marks of cancelled questions in rest of the questions. It is also to be considered as to whether the decision of the opposite parties to allocate the marks of cancelled questions to the rest of the questions in a paper, adversely affected the unsuccessful candidates or not. It is also to be seen as to whether the decision to cancel certain questions and change the model answers of certain other questions was taken by the competent authority or not.
There is no dispute to the legal proposition that once the person has taken part in the selection process and appeared in the written examination or interview in pursuance to the advertisement, he cannot turn around after being declared unsuccessful to challenge the same by raising the plea that the procedure adopted was wrong or illegal.
I do not find it necessary to discuss all the case laws cited by the learned counsel appearing for or against in the writ petitions as it is well settled that a candidate, who has taken part in the selection process knowing fully well the procedure laid down therein, was not entitled to question the same after being declared unsuccessful.
In the present cases, the pleas raised by the petitioners relate to change of statutory conditions as well as the non statutory conditions, such as not holding the written examination as per the procedure prescribed under Rule 16 of Rules 2008, cancellation of certain questions after holding of written examination, change of model answers of certain questions and the decision to this effect was not taken by the competent authority etc. Thus, I am of the considered opinion that in case the pleas have been raised that the opposite parties while proceeding ahead with the selection have not followed the procedure provided under the relevant rules, regulations and the Government Orders then in such cases, the Court has inherent jurisdiction and extraordinary power under Article 226 of the Constitution of India to judicially review the conduct of the examining body and the writ petitions cannot be thrown out on the ground that the persons challenging the selection process had participated in the examination and declared unsuccessful.
Hence the preliminary objection raised by the opposite parties has no force, it is hereby rejected."
It is also to be noted that there is no lis so far as the legal position with regard to maintainability of the writ petitions preferred by unsuccessful candidates challenging the selection in which they had participated is concerned as the legal position is well settled that the candidates after participating in the selection and having been declared unsuccessful cannot turn around and challenge the very same selection in which they have been declared unsuccessful.
Since petitioners are not challenging the procedure prescribed to hold the Physical Efficiency Test and are only aggrieved by the mode and manner in which the said procedure was adopted on the spot by the authorities and which was not known to them, as such, I am of the view that writ petitions are maintainable and requires judicial review by the Court.
Rule 16 of the Rules of 2008 provides for procedure of recruitment by promotion to the post of Sub Inspector. A candidate selected under Rule 16 (a) of the Rules 2008, i.e. who clears the written examination, is required to appear in Physical Efficiency Test. Rule 16 (b) of the Rules of 2008 provides for Physical Efficiency Test and it lays down a condition that a candidate selected under clause (a) shall be required to appear in Physical Efficiency Test of qualifying nature. Male candidates shall be required to complete a run of 10 kms in 75 minutes and the female candidates a run of 5 kms in 45 minutes. The Physical Efficiency Test under Rule 16 (b) were held mainly at four centers, namely, (I) Sitapur, (II) Azamgarh, (III) Meerut and (IV) Kanpur on various dates between the period 20.7.2011 to 04.08.2011 and then on 20.8.2011.
It is an admitted position between the parties that the Physical Efficiency Test consisted of a run of 10 kms in 75 minutes for the male candidates and 5 kms in 45 minutes for the female candidates. It is also admitted fact that on 20.7.2011, after the start of the Physical Efficiency Test at Police Lines, Azamgarh, rains had started and heavy rains took place due to which there was water logging on the field. The Superintendent of Police, Azamgarh had send a report dated 23.7.2011 inter alia stating therein that on 20.7.2011 shortly after the start of Physical Efficiency Test (run) the rains had started and as there were no instructions/guidelines for stopping the Physical Efficiency Test, if rains take place, hence the test was held while rains were pouring in and a number of candidates had sent their representation praying for holding the Physical Efficiency Test afresh. Furthermore, a similar report dated 28.7.2011 was sent by the Superintendent of Police, Azamgarh in regard to the representations made by some other candidates including the petitioners, both these letters are annexed as Annexure No. 8 to Writ Petition No. 6672 (SS) of 2011. A similar report was also made by the Deputy Inspector General of Police, Azamgarh Region vide letter dated 26.7.2011, copy of which is annexed an Annexure No. 9 to the Writ Petition No. 6672 (SS) of 2011. On receipt of representation of petitioners the Board vide letter dated 08.09.2011 had asked for a report as to whether the rains had started before the start of Physical Efficiency Test or during the test and if so then after what duration of the start of the test. Superintendent of Police, Azamgarh vide letters dated 10.8.2011 and 04.09.2011 in this regard had informed the Board that approximately the rains had started within 10 to 15 minutes of the start of the test. These facts clearly indicate that the rains had started just after the start of test and heavy rains continued during the entire period of test.
The said test was held on 20.7.2011 and the rains were pouring in throughout the day on 20.7.2011. The pouring of heavy rains had resulted into the track/field being water logged. It is a matter of common knowledge and also of common prudence that efficiency of a person running on a field when the rains are pouring in shall definitely be marred as his body, clothes and shoes get wet. The physical efficiency of a person would definitely be less than in normal situation when there are no rains. Furthermore, the efficiency of a person running on a field which is water logged, the said water logging would certainly create pit holes, pitfalls, pits and muddy conditions in a non-concrete field would also be adversely affected.
It is also to be noted that the Superintendent of Police, Azamgarh as well as the Deputy Inspector General of Police vide letter dated 16.8.2011 had sought instructions from the Board as to what is to be done in case such a situation arise again. It clearly indicates that there were no instructions/guidelines from the Board at the time when the test was held on 20.7.2011 at Azamgarh.
It is also to be noted that the Board had issued circular dated 20.7.2011 (Annexure No. 6 to Writ Petition No. 6672 (SS) of 2011) giving guidelines for the authorities in case the rains take place during the test or there is water logging on the track/field due to rains. However, the said circular dated 20.7.2011 reached to the authorities at Azamgarh after the Physical Efficiency Test was held on 20.7.2011 and, as such, the benefit of the circular dated 20.7.2011 could not be provided to the candidates who had appeared in the Physical Efficiency Test on 20.7.2011 at Azamgarh. In fact, the test held on 20.7.2011 at Azamgarh was continued in spite of the heavy rains and the candidates were required to complete the test i.e. they were asked to run and complete 10 kms in 75 minutes when the heavy rains were pouring in on the field.
The stand of the opposite parties that some persons were successful in the Physical Efficiency Test in the same condition does not appeal to reason as it was a Physical Efficiency Test held for determining the minimum physical efficiency for further participation in the selection process. A group of persons, being put in one and the same situation, there may be persons who are much more physically efficient than the required standard as such this does not stand to reason that merely because some persons were more physically efficient and were successful, the other candidates should have also been able to attain the same physical efficiency as their counterparts, even though there were adverse conditions which were created by an act of God or an act of nature. The purpose of holding Physical Efficiency Test was to determine the required physical efficiency of candidates as per the Rules in normal circumstances and not in adverse conditions as such it cannot be said that in case certain candidates were able to successfully complete the Physical Efficiency Test in adverse conditions or on track/field which was not fit to hold the Test, the unsuccessful candidates were not having the required standard of physical efficiency.
It also does not appeal to reason as to why benefit of circular dated 20.7.2011 could not be available to those candidates whose test was held on 20.7.2011 and why their retest could not be held as the conditions under which they were asked to undergo the test was not conducive to hold the Physical Efficiency Test. Subjecting the candidates to run for the minimum physical efficiency test in rainy conditions and not stopping the test in spite of heavy rains is wholly unreasonable and arbitrary. In such a scenario it cannot legitimately be concluded that the test was objectively held. Needless to say that the unforeseen circumstances are to be met according to exigencies which was not done in this case.
So far as Physical Efficiency Test held on 21.7.2011 and 22.7.2011 at Azamgarh is concerned, it was held on the same ground on which the test was held on 20.7.2011. Undisputedly, heavy rains had taken place on 20.7.2011 resulting in the field being water logged and resultantly obvious pits, pots, pit holes and muddy conditions over the track were created. Despite the circular dated 20.7.2011 directing the authorities for choosing alternate field where there was no water logging, etc., the Physical Efficiency Test was held on the same field and track and not on the alternative field.
As per counter affidavit of opposite parties, sand was put on the track/field where there were water logging and the ground was approved by the supervising authority for holding test. This fact clearly indicates that there was water logging on the track/field and before holding the test on 21.7.2011 sand was put at the places where there was water logging. Merely putting sand on the track/field, the condition of the Track could not have been improved to such a situation that it becomes normal and conducive to hold the test; rather putting sand on the track/field would create more problem for the candidates to run as it is common knowledge that running on sand is much more difficult than on the normal soil.
It is to be noted that heavy rains had occurred throughout the day on 20.7.2011 at Azamgarh as such the condition of the field/track could not have improved to such an extent that it was fit to hold the test on 21.7.2011 and 22.7.2011. As per the stand taken by the opposite parties, the concerning authorities had put the sand on the field wherever there was water logging and the concerning authorities had approved the track for running. However, it appears that since there was no instructions/guidelines from the Board to postpone the test in case there is any unnatural calamity or an act of God or an act of nature as such in the absence of guidelines/instructions the concerning authorities had held the Physical Efficiency Test in compelling circumstances, although the condition of track/field was not conducive to hold the same.
The perusal of enquiry report dated 23.7.2012 shows that the candidates were required to make themselves available at Reserve Police Lines Ground, Azamgarh at 5 AM on 21.7.2011 and the Physical Efficiency Test was to start at 6 AM, however, it was started with a delay of 1 hour 31 minutes and 59 seconds i.e. to say it had started at 07:31:59 AM. Curiously enough, this enquiry report clearly indicates that on 21.7.2011 by 6.00 AM there was water logging on the Track/field. In spite of circular dated 20.7.2011, the alternative track/field was not searched/arranged for holding the test and on the instructions of the then Reserve Inspector, Azamgarh the candidates were asked to put sand on the field of water logging portions and then Physical Efficiency Test had taken place with a delay as aforesaid. From the aforesaid enquiry report three things clearly emerge out:
(i)The recruit candidates for a period of more than one and half hours were required to put sand on the water logged portions on the Tack/field.
(ii)The Board's circular dated 20.7.2011 regarding choosing of alternative filed of of College/Stadium where there was no possibility of water logging at all, was not followed.
(iii)Water logged portions or muddy portions were attempted to be repaired by putting sand.
It is to be noted that the representations of petitioners were rejected by the Member of the Board on the ground that there was no provision for holding second Physical Efficiency Test and also on the ground that some candidates have successfully cleared the Physical Efficiency Test on the same field and under same conditions.
This Court is of the view that once the Board had issued circular dated 20.7.2011 clearly providing that alternative filed shall be arranged where there is no possibility of water logging, the concerning authorities were not justified in holding the Physical Efficiency Test on 21.7.2011 and 22.7.2011 at the same track and field where, admittedly, there was water logging and the condition of track/field was improved by putting sand, etc. In case no alternative track/field was available which does not appear to have been searched by the opposite parties, the Physical Efficiency Test scheduled for 20.7.2011 to 22.7.2011 should have been postponed and held on some other subsequent dates when the conditions of ground were improved and conducive to hold the test. The representations of petitioners could not have been rejected on the ground that some persons were able to successfully complete the Physical Efficiency Test as it was a test for determining the minimum standard of physical efficiency and not comparative physical efficiency. In case a person is more physically efficient, it does not mean that the other person is not having the normal standard of physical efficiency as per requirement.
It is to be noted that the delay of more than one hour 31 minutes to start the test on 21.7.2011 at Azamgarh and the report dated 23.7.2011 aforesaid clearly goes to show that the condition of ground on which the test was held was not conducive to hold the Physical Efficiency Test. The candidates were first subjected to physical labour by bringing and putting sand over the water logged portions before they could participate in the test. It is a matter of common knowledge and common prudence that the efficiency of a candidate participating in Physical Efficiency Test would be much better than a candidate or the person who is first subjected to physical labour for more than one and half hour and thereafter asked to run 10 kms in 75 minutes that too in such adverse conditions. As such the authorities holding the Physical Efficiency Test on 21.7.2011/22.7.2011 had not acted in accordance with the circular dated 20.7.2011 and had rather violated the said circular.
In these circumstances, this Court is of the view that the Physical Efficiency Test held on 20.7.2011, 21.7.2011 and 22.7.2011 was not properly held and deserves to be held afresh for all those candidates/petitioners who had participated in the said test at Azamgarh.
As per requirement of Rule 16 (b) of the Rules of 2008, a candidate was required to complete a run of 10 kms in 75 minutes for male candidates and a run of 5 kms in 45 minutes for female candidates. The circular dated 01.06.2011 provides that 10 kms run shall comprise of 25 rounds of 400 diameter track. It is alleged by petitioners that the track/field of 400 meters was circular track. 10 candidates were made to stand side-by-side followed by 9 similar parallel line of 10 candidates, one after the other and in this manner 100 persons in 10 lines, each line comprising of 10 side-by-side standing, one after the other, were simultaneously subjected to the test. It had resulted in covering of longer distance than by the candidates standing in outer circle in comparison to candidates standing in inner circle. In a circular track of 400 meter in case 10 candidates were asked to stand side by side in one line then there should have been 10 circles having equal distance of one meter between them. The candidates should be made to stand in such a manner that candidate standing in the inner most circle should stand 10 meter behind the candidate standing in the outer most circle so that each candidate may have to run only 400 meter in one round and not more.
The case of petitioners is that by adopting the faulty manner of making 10 persons to stand in one line followed by 9 lines, some of the candidates could not complete 25 rounds within the specified time of 75 minutes by fraction of seconds and in the event of the distance being not more than 400 meters in each round they could well have completed 10 kms within 75 minutes.
In the counter affidavit, the manner adopted in making the lines of the candidates appearing in the Physical Efficiency Test i.e. each line comprising of 10 persons standing side by side in a parallel line followed by 9 such parallel lines one after the other and in some cases 5 candidates standing side by side followed by 19 other parallel lines one after the other on a track of 400 diameters is not disputed. However, in the counter affidavit it has been stated that a chip was placed at the bottom of the shoes of each candidate to indicate the timing. However, the computer installed at the field or the chips placed at the bottom of shoes of candidates did not indicate the actual distance covered by a candidate as it only indicated the number of rounds completed by a candidate and the timing, as such, there was no method to ascertain the actual distance run by a candidate while undergoing the Physical Efficiency Test. There is no denying the fact that in case a candidate is asked to stand up in parallel lines side by side in a circular track then the candidate standing in the outer circle would have to run more than the candidates standing in the inner circle. Even if, there was no demarcation on the track and all the candidates could have come to the inner circle while running, it is to be noted that in a track of 400 meters, 100 candidates could not have run simultaneously in one circle, as such, this Court comes to conclusion that the manner in which the run was held to hold the Physical Efficiency Test was not done in a proper and correct manner. The authorities concerned should have held the Physical Efficiency Test on the spot by arranging lines of the candidate in such a manner so as to make each candidate run only 400 meters in one round and not compelling them to run more than 400 meters in one round in order to complete 25 rounds for the purpose of completing 10 kms in 75 minutes, as such, the manner in which the test was held cannot be said to be fair and objective as it had resulted in the increase of distance to be covered by some candidates and also resulted in the candidates being over-run or pushing by others time and again.
It is to be noted that a number of persons had fallen unconscious or incurred injuries while undergoing the Physical Efficiency Test and a large number of candidates had reportedly died.
So far as the test held at 2nd Battalion, P.A.C., Sitapur on 04.08.2011 is concerned, the Court in the writ petitions challenging the said test vide interim order had directed the authorities to get the track measured by an expert person in presence of petitioners. The committee comprising of Additional Superintendent of Police, Sitapur, Deputy Commandant, 2nd Battalion, P.A.C., Sitapur and District Sports Officer, Sitapur was constituted for that purpose and in presence of some of petitioners the committee had measured the track on which the test was held. As per report of the committee the Track is of 400 meter. The petitioners have filed objections against the measurement conducted by the Committee mainly on the ground that the Committee did not consist of an expert as District Sports Officer was not a sports person belonging to Athletics. The Sub Divisional Magistrate who was a member of the Committee which had conducted the run on 04.08.2011 was not a Member of the Committee constituted for measuring the track, although he was the only person who could be an expert in this regard. However, the Committee only measured the inner circle of the Track whereas non of the candidates was instructed to run in the inner circle of the Track. The Committee had not measured the outer circle of the Track.
It is a disputed question of fact as to whether the Track at 2nd Battalion, P.A.C., Sitapur was of 400 meter or more than 400 meter. This Court while sitting in writ jurisdiction cannot come to conclusion as to whether the said Track was of 400 meter or more than that, particularly when the contrary stand has been taken by both the parties. However, since it is the admitted position that the candidates appearing in the Physical Efficiency Test were asked to stand up in a parallel line side by side in a circular track and such 10 lines one after the other were formed, the person standing in the outer line was to run more than the person in the inner line. Since the Court has come to conclusion that the manner in which the candidates were asked to stand up and run in a circular Track to complete 10 kms in 75 minutes by running 25 rounds in a 400 meter Track was not just and proper and the Test held in such manner was not fair and objective as such it is to be held that the Physical Efficiency Test at 2nd Battalion, P.A.C., Sitapur was also not properly held and requires to be held again.
Similarly, the Physical Efficiency Test held on any other ground in the manner as prescribed above could not have been just and proper and, therefore, it was not held in fair and objective manner.
It is also to be noted that the writ petitions filed by the candidates who had participated at 2nd Battalion, P.A.C., Sitapur have stated that they had completed 25 rounds of Track in specified 75 minutes and fraction of seconds, in some cases 75 minutes 18 seconds, in some cases 75 minutes- 52 seconds, in some cases 75 minutes 10 seconds and in some cases 24 rounds in 74 minutes, etc. and could not be declared unfit/unsuccessful in the physical efficiency test which is qualifying in nature. This Court is of the view that it is for the concerning authorities to decide as to whether such candidates could be given relaxation in case they had completed the test successfully but were overtime by fraction of seconds. However, their cases shall be considered sympathetically keeping in mind that the Physical Efficiency Test held by the respondents was of qualifying nature.
Now, I come to deal with the cases where the candidates were sick and had either participated in the test during sickness and ailment or could not participate as their physical condition was not such to undergo the said test and the authorities were aware about their sickness or ailment.
It is the case of petitioners that there was no provision for giving any option for postponing the Physical Efficiency Test to some other date on medical grounds, the petitioners had no other option but to participate in the Physical Efficiency Test in the said sickness or ailment. They had informed their concerning authorities about their illness, however, their request for postponement of the test was not accepted on the ground that since there is no provision for giving any option for postponing the Physical Efficiency Test as such their request cannot be accepted. The applications of the petitioners moved in this regard were not accepted by the authorities. Moreover, in some cases the Physical Efficiency Test was postponed or held on a subsequent date on the basis of circulars making provision for options to the candidates suffering from ailment or sickness to opt for some other date but these candidates whose test held before issuance of the said circulars were not given the said benefit and, as such, were highly discriminated.
It is to be noted that the respondents vide circulars dated 10.8.2011 and 12.8.2011 had decided to hold the Physical Efficiency Test by refixing the date as 16.8.2011 which was subsequently changed to 20.8.2011 i.e. after the Physical Efficiency Test were completed and had allowed certain candidates who could not appear in the Physical Efficiency Test due to illness or in whose favour where there were directions by the Court to hold the test, as such, it cannot be said that candidates having failed to qualify the test on account of illness cannot be given second opportunity to clear the Physical Efficiency Test as there is no provision under the Rules. The opposite parties on the one hand had asked the candidates to appear in the Physical Test even in the state of illness or sickness on the ground that there is no provision to postpone the test and on the other hand by circular issued subsequently took a decision to refix the dates for allowing the candidates, who did not appear due to illness & sickness, to appear in the test, as such, all those candidates who had participated in the test under the state of illness or sickness were highly discriminated and they shall be provided another opportunity to undergo the Physical Efficiency Test.
The fact that a number of candidates while undergoing the Physical Efficiency Test had either fell unconscious and were hospitalized by the authorities themselves or had died clearly goes to show that a number of candidates in order to get promotion on the post of Sub Inspector (Civil Police) Ranker had taken the risk to undergo the Physical Efficiency Test although, they were not physically fit and were in the state of sickness or illness. The fact that there was no instructions/guidelines to postpone the Physical Efficiency Test and/or refix the dates for those candidates who are ill had also compelled these candidates to appear in the Test in the state of illness or sickness.
It is also to be noted that the last selection for the post of Sub Inspector (Civil Police) Rankers was held in the year 1999. For the vacancies of recruitment year 1999 to 2008, advertisement was issued in June, 2010 in pursuance of which the petitioners including other candidates had applied. After successfully clearing the written examination, their Physical Efficiency Test were held during the period July to August, 2011. In fact, the vacancies of the recruitment year 1999 to 2008 were clubbed together and combined selection was held by the opposite parties. All the eligible persons against the vacancies for the year 1999 onwards were allowed to participate in the selection held during the period 2010-11. In case the selection was held in time after the end of each recruitment year, the persons who were eligible against the vacancies for the year 1999 did not have to wait for approximately 10 years to appear in the selection including physical efficiency test.
It is to be observed that the candidates who were eligible against the vacancies for the year 1999 may not be having the same physical conditions after 10 years, as with the passage of time and enhancement of age, the physical efficiency of a person reduces. Since the selection was being held after a gap of approximately 10 years, the candidates did not want to take any chance to forgo the test and had appeared in the Physical Efficiency Test even without having the physical fitness to undertake the said test.
In the case of Chandra Prakash Tiwari (supra) who had appeared in the Physical Efficiency Test during illness and was declared failed, this Court vide judgment and order dated 12.3.2012 had rejected the contention of the opposite parties that since there is no provision for re-conducting examination of unqualified candidate and, as such, they cannot be permitted to appear again. The Court has held that once candidates who were not physically well on the scheduled date of physical test were allowed to appear after getting fit, duly examined by medical authorities, the petitioner also should have been given the same treatment. The writ petition was allowed with direction to the opposite parties to retest for the petitioner. The relevant paragraphs on reproduction read as under:
"In the counter affidavit respondents have said that there is no provision for re-conducting examination of unqualified candidate. With respect to the aforesaid document filed along with supplementary affidavit, the same has not been disputed but defence is that if the petitioner was suffering from illness before participating in the test he ought to have represented the authorities to permit him to appear in the test sometimes later but since the petitioner chose to participate in the test and has failed, no re-examination is permitted.
In my view, once candidates who were not physically well on the scheduled date of physical test were allowed to appear after getting fit, duly examined by medical authorities, the petitioner also should have given the same treatment.
The writ petition is allowed. The impugned order dated 02.09.2011 (Annexure 1 to the writ petition) is hereby quashed. The respondents are directed to re-test the petitioner in respect to the running test for promotion and thereafter consider his candidature for promotion on the post of Sub Inspector for which he was examined in the impugned selection. The aforesaid retest shall be completed by respondents within a month from the date of production of a certified copy of this order."
The special appeal preferred against the aforesaid judgment and order was disposed of with observation that the direction issued by the learned Single Judge shall be complied, however, the same shall not be treated as a preceedence. The Special Leave Petition against the order of Division Bench was dismissed by the Apex Court, as such, the directions issued by the Court in the case of Chandra Prakash Tiwari (supra) have attained the finality.
Considering the aforesaid legal position, this court is of the view that all those candidates who are similarly situated as Chandra Prakash Tiwari and had participated in the Physical Efficiency Test in the state of sickness or illness and have requested the authorities for retest shall be allowed to reappear in the Physical Efficiency Test by fixing another date for them.
So far as the candidates who could not participate in the Physical Efficiency Test on the date refixed by the Department are concerned, it is to be noted that petitioners of Writ Petition No. 8333 (SS) of 2011; Constable Ratnesh Kumar Tripathi and 3 ors Vs. State of U.P. and ors due to serious injuries or illness could not appear in the Physical Efficiency Test on the date fixed.
In view of the circulars dated 10.8.2011 and 12.8.2011 the respondents had decided to hold the Physical Efficiency Test by refixing the dates for those candidates who could not participate in the test on the earlier date and had informed the opposite parties about their illness. The petitioners of Writ Petition No. 8333 (SS) of 2011 could not participate in the Physical Efficiency Test on 20.8.2011, Constable Ratnesh Kumar Tripathi had met with serious accident on 09.05.2011 resulting into multiple fracture on the date fixed i.e. 20.8.2011. He was not fit enough to participate in the Physical Efficiency Test, as such, on the medical advice he was not allowed to participate in the said test.
Constable Satya Pal Singh had made himself available to appear in the Physical Efficiency Test at 2nd Battalion, P.A.C., Sitapur on 09.08.2011, however, the Doctors present at the field did not allow him to participate in the Physical Efficiency Test as he was found with high blood pressure. He was admitted in the hospital and advised one month's complete rest as such he could not appear in the test on 20.8.2011.
Constable Anirudh Kumar Sharma could not appear for the Physical Efficiency Test as he met with serious accident on 28.5.2011 in which his couple of ribs got fractured, he was advised three months' bed rest, as such, could not appear in the Physical Efficiency Test on 20.8.2011.
Constable Sushil Kumar Yadav could not appear in the Physical Efficiency Test as he suffered with typhoid and was advised complete rest.
There is yet another case i.e. Writ Petition No. 8472 (SS) of 2011; Constable Pratibha Singh Vs. State of U.P. and others. The petitioner is a lady constable who was in family way i.e. pregnant on the date when the Physical Efficiency Test was held. She had informed the respondents about her physical condition and had requested for opportunity to appear subsequently. The information in this regard was sent by the Superintendent of Police, Ballia but no decision was taken by the concerning authorities and she was not allowed to appear in the Physical Efficiency Test by fixing another date.
The above category of persons were not able to participate in the Physical Efficiency Test due to serious illness or accident on the date re-fixed by the opposite parties. Their physical condition was not such that they could appear in the test.
It is to be noted that they cannot be debarred from participating in the selection process as they have not cleared the Physical Efficiency Test on the date fixed. The physical condition of such candidates was beyond their control and merely because they could not appear in the Physical Efficiency Test on the scheduled date, they cannot be denied selection.
It would have been appropriate that the authorities may have fixed a date after obtaining the fitness certificate from the candidates so that they may appear in the Physical Efficiency Test. The date re-fixed by the opposite parties i.e. 20.8.2011 was without their consent and without obtaining fitness certificate from such candidates who due to serious injuries or illness had not been able to participate in the test, as such, all these persons shall be allowed to participate in the Physical Efficiency Test by fixing a fresh date.
So far as the contention of learned counsel for opposite parties that in the case of Constable Dinesh Kumar Pandey (supra) the Court vide judgment and order dated 02.04.2012 had dismissed the writ petition by distinguishing his case from the case of Chandra Prakash Tiwari (supra), it is to be noted that in the case of Constable Dinesh Kumar Pandey (supra) the Physical Efficiency Test was fixed on his request, however, on the date fixed, he did not appear as such he was not found entitle for any relief. However, in Writ Petition No. 8333 (SS) of 2011 the date fixed by the opposite parties for holding Physical Efficiency Test i.e. 20.8.2011 was fixed without the consent of petitioners and without obtaining their fitness certificate and, as such, the judgment in the case of Constable Dinesh Kumar Pandey (supra) would not be applicable to them.
The judgment of this Court in the case of Jagat Pal Singh (supra) as well as Sanjeev Kumar Dwivedi (supra) relied by learned counsel for opposite parties would not be applicable in the changed circumstances as the opposite parties themselves vide circulars dated 10.8.2011 and 12.8.2011 had provided opportunity to certain candidates to appear in the Physical Efficiency Test by refixing the date as 16.8.2011 which was subsequently changed to 20.8.2011.
Mohd. Mansoor, learned Chief Standing Counsel has placed reliance on some orders passed by the High Court in regard to prayer for holding the second Physical Efficiency Test in the selection in question and on the basis of few such orders passed by this Court it has been submitted that the relief for holding second Physical Efficiency Test has been denied by the High Court. In this regard, it is relevant to notice that in none of the orders placed before the Court the pleas as raised in the present writ petitions have been raised and considered. In that view of the matter the said orders cannot be said to constitute any judicial preecedence on the questions involved in the present writ petitions relating to arbitrary manner adopted in holding the Physical Efficiency Test and in regard to arbitrarily rejection of their representations made by the candidates. Most of the petitioners, as noticed above, have approached the Court after the rejection of their representations by the authorities and the validity of the said orders was not before the Court while the said orders were passed. In all such matters on which the reliance has been placed on behalf of the State, specific pleas raised in the writ petitions have neither been considered nor decided.
Furthermore, in view of the facts and circumstances hereinabove, it is more than evident that the Physical Efficiency Test had been held quite unreasonably and arbitrarily and the representations of petitioners have also been rejected in an arbitrary manner. The reason assigned in rejecting the representations praying for holding of Physical Efficiency Test afresh, in view of the facts and circumstances of the case, is quite arbitrary and even does not appeal to common sense and common prudence. The Constitution Bench of the Apex Court in the case of E.P. Royappa Vs. State of Tamil Nadu and another; AIR 1974, SC 555 has held as under:
"In other words, Art. 14 is the genus while Art 16 is a species, Art. 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose J., "a way of fife", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so Would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
It is also well settled that unequals cannot be treated equally. The candidates belonging to the aforesaid five categories constitute a class in themselves having been placed in peculiar circumstances attributable either to the act of God or act of nature or to unforeseen circumstances or because of action taken by the authorities conducting the Physical Efficiency Test in utter derogation to their own circulars making the faulty Track and holding the test in an arbitrary and objectively un-practicable manner.
Rule 16 of the Rules of 2008 provides that after holding of written examination, such candidates who qualify in the written examination have to appear in the Physical Efficiency Test and thereafter the service records of the candidates qualifying in the Physical Efficiency Test is evaluated and thereafter such candidates are subjected to group discussions and interview and thereafter a unified merit list on the basis of the marks obtained on the count of written examination, evaluation of service records, group discussions and interview is prepared.
In view of above, the writ petitions are allowed. The impugned orders rejecting representations of petitioners are quashed. The opposite parties are directed to hold the Physical Efficiency Test of the petitioners afresh, expeditiously, say within a period of one month from the date a certified copy of this order is produced before the concerning authorities and thereafter the candidates qualifying in the Physical Efficiency Test be subjected to evaluation of their service records, interview and group discussions and thereafter a Merit List along with other candidates be prepared.
[Ritu Raj Awasthi, J.] Dated: 1st February, 2013 Santosh/-