Allahabad High Court
State Of U.P. Thru. Prin. Secy., Home ... vs Sudhakar Pandey (Inre 5254 Sers 2011) on 30 July, 2014
Author: Rajiv Sharma
Bench: Rajiv Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
Special Appeal No.149 of 2013
State of U.P. and others ... Appellants
vs
Sudhakar Pandey ... Respondent
along with
(1) Special Appeal No.276 of 2013
State of U.P. and others ... Appellants
vs
Constable Uma Nath Pandey ... Respondents
and another
AND
(2) Special Appeal No.275 of 2013
State of U.P. and others ... Appellants
vs
Kundan Singh ... Respondent
AND
(3) Special Appeal No.277 of 2013
State of U.P. and others ... Appellants
vs
Nanhe Lal ... Respondent
AND
(4) Special Appeal No. 278 of 2013
State of U.P. and others ... Appellants
vs
Hari Saran Singh ... Respondent
AND
(5) Special Appeal No.279 of 2013
State of U.P. and others ... Appellants
vs
Constable CP No. 930290061
Sanjay Singh & others ... Respondents
AND
(6) Special Appeal No.280 of 2013 State of U.P. and others ... Appellants
vs
Anand Kumar Maurya ... Respondent
AND
(7) Special Appeal No.282 of 2013
State of U.P. and others ... Appellants
vs
Ajay Bahadur Singh and others ... Respondents
AND
(8) Special Appeal No.283 of 2013
State of U.P. and others ... Appellants
vs
Constable Gulab Singh ... Respondent
AND
(9) Special Appeal No.284 of 2013
State of U.P. and others ... Appellants
vs
Madhur Shyam Ojha ... Respondent
AND
(10) Special Appeal No.288 of 2013
State of U.P. and others ... Appellants
vs
Anjani Tripathi and others ... Respondents
AND
(11) Special Appeal No.289 of 2013
State of U.P. and others ... Appellants
vs
Const. Ratnesh Kumar Tripathi ... Respondents
and others
AND
(12) Special Appeal No.291 of 2013
State of U.P. and others ... Appellants
vs
Balram Pandey ... Respondent
AND
(13) Special Appeal No.317 of 2013
State of U.P. and others ... Appellants
vs
Head Constable CP
Rajendra Kumar Mishra and others ... Respondents
AND
(14) Special Appeal No.321 of 2013
State of U.P. and others ... Appellants
vs
Shrawan Kumar Singh & Others ... Respondents
AND
(15) Special Appeal No.281 of 2013
State of U.P. and others ... Appellants
vs
Bharat Singh ... Respondent
AND
(16)Special Appeal No.290 of 2013
State of U.P. and others ... Appellants
vs
Balwant Chand ... Respondent
AND
(17)Special Appeal No.425 of 2013
State of U.P. and others ... Appellants
vs
Head Constable Ram Prakash Tiwari
and others ... Respondents
AND
(18) Special Appeal No.454 of 2013
State of U.P. and others ... Appellants
vs
Brijendra Nath Mishra and others ... Respondents
AND
(19) Special Appeal No.408 of 2013
State of U.P. and others ... Appellants
vs
H.C.59 C.P Akhilesh Kumar Rai ... Respondents
and others
AND
(20) Special Appeal No.419 of 2013
State of U.P. and others ... Appellants
vs
Constable AP Arvind kumar ... Respondent
AND
(21) Special Appeal No.410 of 2013
State of U.P. and others ... Appellants
vs
Const. CP-1035 Mahedra Pratap singh ... Respondents
and others
AND
(22) Special Appeal No. 318 of 2013
State of U.P. and others ... Appellants
vs
Constable Shree Prakash Singh ... Respondent
AND
(23) Special Appeal No.456 of 2013
State of U.P. and others ... Appellants
vs
Constable CP 2336 Brij Lal ... Respondent
AND
(24) Special Appeal No.421 of 2013
The State of U.P. and others ... Appellants
vs
Const. 623 CP Shailendra Kumar Misra ... Respondent
AND
(25) Special Appeal No.420 of 2013
State of U.P. and others .... Appellants
vs
Constable Charan Singh and others ... Respondents
AND
(26) Special Appeal No. 411 of 2013
State of U.P. and others ... Appellants
vs
Harish Chand and others ... Respondents
AND
(27) Special Appeal No. 319 of 2013
State of U.P. and others ... Appellants
vs
Pradeep Kumar Singh ... Respondent
(constable no.CP779)
AND
(28) Special Appeal No. 422 of 2013
The State of U.P. and others ... Appellants
vs
Constable No.1116 CP Mukesh Kumar ... Respondents
and another
AND
(29) Special Appeal No. 334 of 2013
State of U.P. and others ... Appellants
vs
Constable Vinod Kumar and others ... Respondents
AND
(30) Special Appeal No. 453 of 2013
State of U.P. and others ... Appellants
vs
Sanjai Kumar Shukla and others ... Respondents
AND
(31) Special Appeal No. 335 of 2013
State of U.P. and others ... Appellants
vs
H.C. Manoj Kumar Singh ... Respondents
and another
AND
(32) Special Appeal No. 455 of 2013
State of U.P. and others ... Appellants
vs
Head Constable Shri Govind
and another ... Respondents
AND
(33) Special Appeal No. 332 of 2013
State of U.P. and others ... Appellants
vs
Constable Amar Jeet Yadav
and others ... Respondents
AND
(34) Special Appeal No. 320 of 2013
State of U.P. and others ... Appellants
vs
Constable Ravindra Singh
and others ... Respondents
AND
(35) Special Appeal No.452 of 2013
State of U.P. and another ... Appellants
vs
Dinesh Kumar Saroj and another ... Respondents
AND
(36) Special Appeal No.223 of 2014
State of U.P. and others ... Appellants
vs
Umesh Chand Yadav ... Respondent
AND
(37) Special Appeal No. 418 of 2013
State of U.P. and others ... Appellants
vs
Sukhdev singh ... Respondent
AND
(38) Special Appeal No. 416 of 2013
State of U.P. and another ... Appellants
vs
Gopal singh ... Respondent
AND
(39) Special Appeal No. 414 of 2013
State of U.P. and others ... Appellants
vs
Head Constable Dinesh Kumar Mishra ... Respondents
and others
AND
(40) Special Appeal No. 316 of 2013
State of U.P. and another ... Appellants
vs
Vijay Kumar Saxena and another ... Respondents
AND
(41) Special Appeal No. 336 of 2013
State of U.P. and others ... Appellants
vs
Mohd. Ashfaque Khan ... Respondent
AND
(42) Special Appeal No. 426 of 2013
State of U.P. and another ... Appellants
vs
Constable 1809 CP Mukesh Kumar ... Respondent
AND
(43) Special Appeal No. 409 of 2013
State of U.P. and others ... Appellants
vs
Constable Atul kumar Gupta and others ... Respondents
AND
(44) Special Appeal No. 311 of 2014
State of U.P. and Others ... Appellants
vs
Radhey Shyam Dwivedi ... Respondent
AND
(45) Special Appeal No. 312 of 2014
State of U.P. and Others ... Appellants
vs
Head Const.62 TP Sanjai Kumar Singh ... Respondents
and others
AND
(46) Special Appeal No. 313 of 2014
State of U.P. and another ... Appellants
vs
Navdeep Kumar ... Respondent
AND
(47) Special Appeal No. 171 of 2013
Harshit Kumar Singh and others ... Appellants
vs
State of U.P. and others ... Respondents
Hon'ble Rajiv Sharma,J.
Hon'ble Zaki Ullah Khan,J.
Heard Mrs. Bulbul Godiyal, learned Additional Advocate General duly assisted by Shobhit Mohan Shukla for the appellants and Sri Anil Kumar Tewari,Senior Advocate, Dr L.P.Mishra, Sri Amit Bose, Sri Gaurav Mehrotra, Sajjad Husain, Sudhir Kumar Mishra and other Advocates, appearing for the private respondents.
A notification inviting applications for appointment on the post of Sub-Inspector was published in the month of July, 2010. The private respondents-petitioners and other candidates appeared in the written examination and were declared successful. Later on, a circular was issued by Additional Secretary (Promotion) U.P. Police Recruitment and Promotion Board, Lucknow, prescribing norms and procedures for the physical efficiency test.
Aggrieved by the 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 date of holding of Physical Efficiency Test, respondents-petitioners have filed the instant petition.
The writ petitions though were pertaining to selection on the post of Sub-Inspector, but the facts were different as such they were categorized by the learned Single Judge as under:
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 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 re-fixed 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.
Hon'ble the Single Judge after minutely examining the relevant record and considering the submissions made by the rival parties, allowed the writ petitions vide judgment and order dated 1.2.2013 and inter-alia quashed the orders rejecting representations of respondents-petitioners.
Being dis-satisfied with the aforesaid judgment and order dated 1.2.2013 passed by a learned Single Judge of this Hon'ble Court in a bunch of writ petitions, whereby all the aforesaid writ petitions and other connected writ petition were allowed, the orders rejecting the representations of the petitioners in all the writ petitions were quashed, the instant appeals have been filed. It may be mentioned that learned Single Judge while allowing the writ petitions directed the appellants to hold the Physical Efficiency Test of the respondents afresh and a further direction was issued that the candidates qualifying the Physical Efficiency Test as a result of the fresh test be subjected to evaluation of their service records, interview and group discussions and thereafter a merit list along with other candidates be prepared.
It has been vehemently contended on behalf of the appellants that the respondents-petitioners were fully aware of the mode and manner of selection yet they participated in the same without raising any objection and after being unsuccessful, had approached the Hon'ble Court challenging the criteria adopted in holding the selection. The law is well settled that candidates who had participated in the selection, fully aware of the manner and mode of selection cannot challenge the same after being declared unsuccessful. Therefore, the learned Single Judge committed an error in allowing the writ petitions and issuing directions, as referred to above.
Arguing on behalf of the appellants, learned Addl. Advocate General submitted that for holding the Physical Efficiency Test of candidates, who had cleared the written examination, several circulars were issued by the U.P.Police Recruitment and Promotion Board. These Circulars prescribe mode and manner as to how the physical efficiency test would be held. The Circular dated 1.6.2011 provides that physical efficiency test would be held at 5 districts and paragraph 2 of the Circular provides that everyday one race of 100 candidates would be held. Paragraph 6.6 of the Circular provides that a male candidate would be required to run 25 rounds of 400 meters track and a female candidates would be required to run 13 rounds of 384.6 meters track. Some of the candidates, who were unsuccessful in physical efficiency test, latter filed writ petitions on the ground that the track on which the respondents were required to run was of 410 meters and not of 400 meters as was prescribed in the Circular.
As regard the finding of the Hon'ble Single Judge that the authorities themselves had provided a chance to certain candidates in light of the circulars dated 10.8.2012 and 12.8.2012, it has been argued that the said finding is contrary to records as the Circulars dated 10.8.2012 and 12.8.2012 were issued in respect of those candidates who had not participated at all in the physical efficiency test on the ground of their illness. The Circular dated 12.8.2012 clearly provides that candidates who had participated in the Physical Efficiency Test should not be allowed to participate again in the Physical Efficiency Test.
Elaborating his submissions, learned Addl. Advocate General submitted that the question of giving additional opportunity to the failed candidates of Physical efficiency test under the above mentioned Service Rules has been settled upto the Hon'ble Supreme Court and it has been upheld that a failed candidate cannot be given another opportunity or additional chance. The Special Appeal No. 476 of 2010 was dismissed on 30.11.2011 in light of the judgment passed in Special Appeal No. 659 of 2010 and the Special Leave Petition No. 10487 of 2012 was also dismissed by the Hon'ble Supreme Court. Thus the position has been settled that the failed candidates cannot be given additional chance as there is no such provision under the Service Rules 2008.
On the contrary, as regard the assertions of the appellants that the respondents to the above mentioned special appeal having participated in the physical efficiency test held by the Board after being fully aware of the manner and the mode of the physical efficiency test and without raising any objection against the manner and mode of the test after having been declared unsuccessful in the test, are estopped from challenging the same, it has been vehemently argued by the respondents that the respondent to the aforesaid special appeal could not have under any circumstances raised any contention either with regard to the length of the 2nd Battalion , P.A.C., Sitapur or with regard to manner of the conduct of the physical efficiency test till the respondent to the aforesaid special appeal had participated in the test concerned. It is not the case of appellants that the respondent to the aforesaid special appeals were either posted at the 2nd Battalion, P.A.C. , Sitapur so that they could come to know that the track in the parade ground of the aforesaid battalion was 400 meter in the length and not more . The respondents to the aforesaid special appeal were not even posted in the U.P.P.A.C. force what to say at the 2nd Battalion, P.A.C., Sitapur and as such they could not have ever know about the length of the track at the 2nd Battalion,P.A.S., Sitapur till they had participated in the physical efficiency test . It is not a case where the norms of selection had been know to the candidates and they had participated in the selection concerned without any objection and as such they could not challenge the norms once they had participated in the selections and had been declared unsuccessful. On behalf of some of the respondents it has been argued that the objection raised by the appellants regarding the maintainability of the writ petition before Hon'ble Single Judge is bereft of merits and frivolous as such has rightly been rejected by the Hon'ble Single Judge.
In Special Appeal No. 288 of 2013; State of U.P. and others vs. Anjani Tripathi and others, it has been argued on behalf of the contesting respondents that one day prior to the Physical Efficiency Test of the Respondents, there had been heavy rains at Azamgarh and the rainfall recorded in Sadar Tehsil of District Azamgarh on 20.07.2011 was 30 millimeter. The Reserve Police Lines, where the respondents were required to appear in the Physical Efficiency also falls in Sadar Tehsil. The respondents and other candidates had to run in such grounds, which was water logged and had mud, on which sand was put to worsen the situation. Out of total 98 candidates appearing on the said dates, 50% of the candidates failed i.e. only 49 candidates succeeded and 49 candidates failed to qualify on the said date, although normally on other dates, which were not affected by rain, the passing percentage had been roughly 88%, which apparently on account of heavy rain educed to 50% on 21.07.2011.
According to respondents, they reliably learnt that in similar circumstances, the race at various examination centre was deferred on account of heavy rains/water logging and a new date i.e. a subsequent date was given to the candidates to appear in the 10 kms. run for Physical Efficiency Test. Few of the instances of the aforesaid deferring of races on account of heavy rainfall/water logging had been at Sitapur Centre i.e. Reserve Police Line, Sitapur on 16.08.2011. Since there had been heavy rain at Sitapur on 15.08.2011, there was water logging in the ground of Reserve Police, Line, Sitapur on 16.08.2011, as such the race scheduled to take place on 16.08.2011 was deferred for 20.08.2011. Prior to the same at Sitapur itself, the race scheduled for 21 & 22.07.2011 respectively was deferred on account of heavy rainfall/water logging and the said race was subsequently got conducted on 08.08.2011 respectively.
Thus from the above facts, it is imminently clear that respondents have been subjected to hostile discrimination in gross violation of Article 14 of the Constitution of India, as on one hand, the similarly situated candidates, who were facing problem of water logging or heavy rainfall were given subsequent dates to appear in Physical Efficiency Test and to complete 10 kms run, but on the other hand, the respondents were compelled to run in a water logged ground, which was to their disadvantage as has been admitted by the appellant no.3 Board in the letter dated 20.07.2011 issued by the appellant no.4.
It is relevant to point out here that the principle of law that a candidate cannot be permitted to challenge a selection after he was made aware of the norms of selection and he had participated in the selections without any demur or objections and having been declared unsuccessful would apply in a case where the candidates were categorically made aware of the norms of selection before the selections were conducted. The said principle would not apply to a case like the instant one where even the authorities conducting the selections were themselves not aware of the fact as to whether the track on which a run is to be conducted is of the required length or not. If the authorities themselves were not aware of the length of the track on which the run concerned was conducted, it would be difficult to expect the candidates to challenge the length of the track on the ground that it was not of the required length even before the run was conducted and in that view of the matter alone the contention raised by the appellants is absolutely baseless and misconceived. The appellants have not come forward with any information that have been furnished to the candidates before they were required to participate in the run concerned that the particular track on which the run was conducted was of 400 meters. Even according to the appellants themselves, it was only an assumption that the particular track on which the run concerned is conducted was 400 meters in length. On this ground alone the contention as raised by the appellants is absolutely baseless and misconceived.
We would like to observe that objection regarding the maintainability of the writ petition was raised and the same has been decided by Hon'ble Single Judge against the appellants as would be evident from the perusal of the impugned judgment. The relevant extract of the judgment reads as under:-
"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 petition are maintainable and requires judicial review by the Court."
It is pertinent to mention hereunder that the Hon'ble Supreme Court had dealt with the aforesaid question in the matter reported in Rajesh Kumar Gupta vs. State of U.P. & others; 2005 5 SCC 172 wherein it has been held that where the criteria of preparation of merit was subsequently changed after holding of the examination, no candidate had any occasion to protest as such the plea of promissory estoppel would not apply where the candidates who had applied but not selected had challenged the said selection in the writ petitions, as nothing was established to show that they had altered their position to their detriment by applying pursuant to the advertisement.
Therefore, submissions advanced by the learned Counsel for the contesting respondents on the strength of the decision rendered in Ranjit Kumar Singh vs. State of U.P. & others (in Writ Petition No. 61659 of 2010 & other connected matters), that the view taken by the Selection Board is perverse and a blunder has been committed by the Selection Board, is factually correct. It may be noted that the Court is under constitutional obligation to interfere in such matters, otherwise it would amount to confer immunity to selection Board in the matters of conducting selection in illegal and arbitrary manner. In these circumstances, it is wrong to say that the findings recorded by the learned Single Judge are perverse and erroneous.
There is also no dispute to the fact that in the circular dated 20.07.2011 issued by the appellants no.3-Board has clearly provided that if, there is water logging on account of rainfall, arrangement of race be made in some other grounds like some colleges or stadium etc, whether there is no water logging. Therefore, it was obligatory upon the authorities conducting the test to defer the physical efficiency test or to have made alternative arrangement. The Apex Court in V.K. Ashokan vs. Assistant Excise Commissioner & others;(2009) 14 SCC 85, on which reliance has been placed by the respondents, has held in unambiguous words that:-
"It is well settled principle of law that a Statutory Authority must exercise its jurisdiction within the four corners of the situation. Any action taken which is not within the domain of the said authority would be illegal and without jurisdiction."
The aforesaid view has been reiterated by the Hon'ble Supreme Court of India in Tej Shree Ghag vs. Prakash Parshuram Patil;(2007) 6 SCC 220. In these circumstances, there was no occasion for the respondents to have acted contrary to the direction contained in Circular dated 20.07.2011 issued by the appellant no.3-Board, and as such, if at all there was situation of water logging the only option with the appellants was to have got the race conducted at some other alternative ground like stadium, college etc. and is such arrangement was not possible, to have deferred the race. We deem it apt to reproduce the observations made by the learned Single Judge in this regard in the impugned judgment:-
"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....
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 regard the contention of the appellants that the disputed question of facts cannot be looked into while deciding a writ petition under Article 226 of the Constitution, we would like to observe that there is no absolute proposition of law that disputed questions of fact cannot be gone into in writ proceedings under Article 226 of the Constitution of India. It is only questions of fact which require appreciation of evidence to prove or disprove then that may not be gone into by this Hon'ble Court in writ jurisdiction. However, this is also not an absolute proposition of law. Questions of facts have to be gone into by this Hon'ble Court in writ jurisdiction as otherwise the principles of law cannot be applied in a writ petition. Principles of law have to be applied in a particular fact situation of a case. In the case of a selection being challenged as having been conducted in an arbitrary, unfair and improper manner contrary to the rules applicable, it necessary means that the challenge is covered by Articles 14 and 16 of the Constitution of India. In order to answer such a challenge the Court has to consider the factual situation before adjudicating upon the issues involved in the challenge to a particular selection. Without considering the factual challenge, this Court cannot arrive at a decision whether a selection is or is not arbitrary, unfair or improper.
In view of the aforesaid discussions, we find no infirmity or illegality in the impugned judgment, which is hereby approved. However, it is provided that in respect of Category III and Category IV candidates, benefit of the above judgment shall not be extended to the candidates, who have not informed about the ailment on the date of Physical Efficiency Test or earlier.
All the Special Appeals except Special Appeal No. 171 of 2013 are hereby dismissed. So far as Special Appeal No. 171 of 2013; Harshit Kumar Singh and others vs. State of U.P. and others is concerned, the same is allowed and the judgment and order dated 1.8.2011 passed in Writ Petition No. 4644 (SS) of 2011; Shashidhar Tiwari and others Vs. State of U.P. and others and order dated 15.3.2013 passed in Review Petition No. 357 of 2012 are hereby quashed and the appellants of the said Special Appeal shall be extended the benefit of the judgment and order dated 1.2.2013.
Costs easy.
HM/Lakshman [ Justice Z.U.Khan] [ Justice Rajiv Sharma]
Date:30th July, 2014
Date:30th July, 2014