Punjab-Haryana High Court
Sandeep And Others vs State Of Haryana And Another on 16 August, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.1924 of 2007 and connected petitions 1
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
CWP No.1924 of 2007 and connected petitions
Date of Decision: 16.08.2013
Sandeep and others
......... Petitioners
Versus
State of Haryana and another
............ Respondents
CORAM : HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. R.K.Malik, Sr. Advocate with
Mr. Vijay Dahiya, Advocate
for the petitioners (CWP No.1924 of 2007)
Mr. Ramandeep Singh, Advocate,
for the petitioners (CWP No.2312 of 2007)
Mr. Satish Chaudhary, Advocate
for the petitioners (CWP No. 2626 of 2007)
Mr. Rajinder Singh Malik, Advocate,
for the petitioners (CWP No.3259 of 2007)
Mr. Praveen Bhadu, Advocate,
for the petitioners (CWP No. 5697 of 2007).
Mr. P.R. Yadav, Advocate,
for the petitioners (CWP No.20986 of 2011)
Mr. Puneet Bali, Senior Advocate with
Mr. Raghuminder Singh, Advocate for
for the petitioners (CWP No.1935 of 2007)
Ms. Alka Chatrath, Advocate
for the petitioners (CWP No.2510 of 2007)
Mr. Harish Rathee, Sr. DAG, Haryana
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest?
RAJIV NARAIN RAINA, J.
This order shall dispose of a bunch of eight petitions* because common questions of law and facts are involved. However, the facts are Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 2 being extracted from CWP No.1924 of 2007.
Government of Haryana accorded sanction for recruitment of 819 constables, Police Control Room Staff in Districts Gurgaon, Faridabad and Sonepat by sanction order dated 9.9.2004. An advertisement was inserted in the press on 21.9.2004 calling applications from eligible candidates for filling up the posts by direct recruitment in accordance with the Punjab Police Rules, 1934 as applicable to Haryana. The Police Headquarters constituted four Selection Boards to make selection under the Superintendents of Police at Bhiwani, Rewari, Kurukshetra and Karnal. 270 posts were allocated to Bhiwani while 180 each to the rest of these selecting Units. The Selection Board consisted of the Superintendent of Police/Commandant acting as Chairman and two Deputy Superintendents of Police as Members in terms of Rule 12.14 (i) & (ii) of the PPR, 1934 as applicable to Haryana. The criteria for selection has been laid down in the Rules itself which consists of physical measurement of candidates in the presence of the Chairman of the Selection Board, physical efficiency test followed by interview/ personality test. The marks assigned for the physical efficiency test are 20 and for the interview 15 marks. The selection is within a total of 35 marks.
The recruitment process was started on 4.10.2004. The physical measurements at the 4 Units was carried out between 8.10.2004 to 24.10.2004. The physical efficiency tests were carried out between 26.10.2004 and 18.11.2004. The interviews were held of all the candidates between 20.11.2004 to 19.12.2004. The result of the selection was declared on 19.12.2004.
The scenario in which the recruitment process was made. Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 3 General elections to the Haryana Assembly were under process and the Model Code of Conduct was clamped by the Election Commission of India, New Delhi on 17.12.2004. On the day when the Model Code of Conduct came into operation, the select lists were prepared on 17.12.2004 itself declaring 815 candidates as successful. On 27.12.2004, the Election Commission directed the Haryana Government not to make or offer any appointments to public service. On the following day, the DGP, Haryana issued circular dated 28.12.2004 containing directives across Haryana Police that no appointments be made in view of the directive issued by the Election Commission. Despite the whip issued not to appoint, the next day on 29.12.2004, in violation of the Election Code of Conduct 61 selected candidates were made to join the posts of Constables and were even given constabulary numbers. The remaining candidates could not join.
On 5.3.2005, a new Government came to power and the old order changed. The Government in power ordered an enquiry into the irregularities committed in the selection process of 819 constables. This was done vide order dated 20.4.2005. Shri M.S.Mann, IPS, Additional Director General of Police, Haryana was asked to hold the enquiry. He submitted his report on 3.5.2005 holding that the selection was dubious. On 1.6.2005, the impugned order was passed nullifying the entire selection as vitiated. On 9.6.2005, the services of the 61 constables appointed to the posts were dispensed with.
Aggrieved by the orders of termination, Civil Writ Petition No.9695 of 2005 was filed before this Court on 27.6.2005. The petitioners were either those whose services were dispensed with or ones who had not been offered appointments. The Division Bench of this Court vide order Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 4 dated 27.10.2005 referred the matter to the Central Bureau of Investigation calling upon it to investigate and submit its report within 6 months. The writ petitions were disposed of by passing the following order : -
" We have heard the learned counsel for the petitioners and the learned Advocate General, Haryana for the respondents and have also perused the record including the report of the Inspector General of Police, who had given the same on the direction of the Director General of Police, Haryana.
The allegations found to be proved are that there had been large scale bungling in the selection and that the entire matter had been hurried through on account of the fact that the elections to the State Legislature were shortly to take place. The petitioners have, however, denied any bungling and stated that the action of the State Government was malafide on account of the change of the Government. We are prima facie of the opinion that the matter needs to be enquired into on account of the serious nature of allegations that have been made in the detailed written statement filed by the respondent state.
We accordingly refer the matter for investigation to the Central Bureau of Investigation with a request to examine not only the sanctity of the selection process, but also examine the role of all those persons who had made the selection. The investigation be completed within a period of six months from the date the CBI first receives a certified copy of this order. We further direct that on the completion of the investigation, the CBI and the State Government shall take such action as is appropriate under the circumstances.
The writ petition is disposed of in the above terms. Dasti."
The CBI was tasked by this Court to determine two things. One, to examine the sanctity of the selection process and two, the role of Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 5 those persons who had made the selection.
The CBI investigated the matter and submitted its report, after investigating the record of all the 4 Selecting Units, before this Court on 15.9.2006. When the report of the CBI enquiry and the status report were presented before the Division Bench of this Court in CWP No.9695 of 2005, this Court passed the following order : -
"Present : Mr. R.K.Malik, Advocate for the petitioners Mr. Harish Rathee, Sr. DAG, Haryana for the respondents A copy of the enquiry report and status report submitted by the CBI and another copy of the Status report dated 19.6.2006 are taken on record as Mark 'A' and 'B'. We have also perused the Status Report filed by the Special Secretary, Home, Haryana filed on behalf of respondent no.1 which disclose that show cause notices have been issued calling upon the erring officers to explain as to why disciplinary action be not initiated against them on the basis of the findings of the enquiry report by the CBI. Their explanations have been called vide letters dated 14.11.2006 and they are required to submit their replies within 15 days from the receipt of the letter. Those replies are still awaited.
No further orders are required to be issued by this Court and the matter has to be decided in accordance with law against the erring officers by the respondent-State expeditiously.
Accordingly the application stands disposed of.
Sd/-M.M.Kumar, Judge 4.12.06 Sd/-M.M.S. Bedi, Judge"
The writ petition stood finally disposed of on 4.12.2006 with the disposal of the civil misc. application. The stand in the status report of the Government was that show cause notices have been issued calling upon Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 6 the erring officers to explain as to why disciplinary action be not initiated against them on the basis of the findings of the enquiry report submitted by the CBI. That means that the explanation of the members of the 4 Selecting Committees was called vide letter dated 14.11.2006 to submit their replies within 15 days of the receipt of the letter. The replies were awaited. The explanations of the Officers have been placed on record. The basic difference was that in the enquiry, no criminal misconduct was established and if there were lapses or acts or omission in the discharge of official duties or that their recruitment process was lopsided and a lot of discretion lay in the hands of the Board Members, they pleaded no bias or abuse of discretion in making recommendations. If the dates of interview were advanced and re-scheduled, it was with the view to distribute the work load equitably on Saturdays and Sundays and to effectively utilize weekends in view of the directives issued by the Police Headquarters, Panchkula for quick selection.
Mr. R.K.Malik, learned Senior Counsel appearing for the petitioners relies on the explanations given by the Members of the Selection Committees and that those did not yield serious disciplinary action against the officials. He submits that in terms of the High Court order dated 27.10.2005, only two issues had to be debated, examined and investigated by the CBI. Firstly, the sanctity of the selection process and role of persons involved. He would submit that the criteria of selection laid down in Rule 12.6 of the PPR, 1934 is a valid criteria is statutory and has been upheld by this Court. The procedure laid down for selection in Rule 12.6 was duly followed. Merely because the elections were around the corner or that the Model Code of Conduct had been clamped, cannot take away the vested Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 7 right to appointment on selection and particularly when 61 candidates were made to join, the remaining could not be separated for unequal treatment as that would violate the mandate of Article 14 and 16 of the Constitution of India. That by itself, created vested and accrued rights in the remaining candidates to secure appointment on a level playing field. He submits that the termination of the 61 constables selected and appointed was an unlawful act of the Government in power because witch hunting had begun against the old regime.
Mr. Malik, has taken this Court through the conclusions recorded by the CBI in its report starting running from page 65 of the paper- book till page 69. He relies on the opening line of the conclusion to assert that the enquiry report has not indicated any criminal misconduct on the part of the Officers. The conclusions deserve reproduction and they read as follows: -
"i) The interview process which carried 42 percentage weightage in the selection was found to have been conducted in a hurried and casual manner. Though per se, nothing incriminating could be found but the interviews were perhaps preponed/rescheduled by Boards at Kurukshetra, Rewari and Karnal possibly to complete the recruitment process before the announcement of election process. This was obvious as interviewing 271, 173 and 255 candidate per day for an time average three minutes for a single candidate would have taken 813 minutes (12 hours 45 minutes).
And this calculation does not take into account the break for tea, lunch and other engagements. It would have been humanly impossible to judge the merit of candidates in such a short span of time especially when the marks in interview could have titled the balance either way for selection. The Chairman of the Boards were not able to provide any convincing reasons for Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 8 preponement of interviews. The reasons given by them that interview were preponed on account of Gita Jayanti celebrations and sever winter, do not inspire confidence as these factors were already known to them and should have been taken into account while planning the interviews.
ii) Selection Board of Bhiwani District was found to have selected as many as 6 candidates who never appeared in interview which was a mandatory requirement as per recruitment rules.
iii) Discrepancies were found in the merit list prepared by the Selection Board of Kurukshetra District. Even the entries made in the physical measurement register and the PET register contained many corrections.
iv) Number of additions, alterations, cutting and erasing were found in the PET register of Rewari District which were not even authenticated by board members or the Chairman.
v) The enquiry also pointed out the scheme of recruitment was not very scientific and objective. The entire process consists of 35 marks, wherein the interview carried 15 marks and Physical Efficiency Test had 20 marks. The breakup of 20 marks was provided event wise along with the scale of marks to be awarded based on performance in various prescribed parameters. No such break up has been laid down for the interview and as such these marks were to be awarded on discretion of the Board Members conducting interview. As many as 403 candidates could not make it to the final list even after securing 100 per cent marks in Physical Efficiency Test, due to low marks awarded in interview. Normally, interview is not given more than 10 to 15 percent of weightage for the selection criteria. Some of the States have been done away with interview and undertake recruitment for constabulary on the basis of score obtained in PET and objective type of basic language skills and general knowledge.
vi) The enquiry also revealed that the Inspectors General of Police concerned i.e. S/Shri R.N.Chahalia, S.S. Deswal, Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 9 Resham Singh and Swaranjit Singh did not exercise required supervision of the recruitment process even though two of the Superintendents of Police i.e. Sh. Vikas Arora and Ms. Bharti Arora were in their first posting as District Superintendent of Police and did not have any earlier experience of recruitment.
vii) The enquiry revealed that important communications of Election Commission of India especially those of December 23 and 24, 2004 remained unattended with the then DGP Shri MS Malik, who was on leave during that period. No arrangement was found to have been made for attending to the important papers in the absence of DGP. The Election Commission of India had indicated that officers responsible for appointment in violation of Model Code of Conduct would be liable for disciplinary action of Commission's displeasure." He submits that once the Government was satisfied with the explanation given by the selecting authorities and decided not to take any further action against them, then, there would be no justification not to consider the claim of the petitioners for appointment. He supports the selection process and castigates the observations of the CBI on several scores. He points to 7 reasons in support of his case. They is as under : -
a) The observations of the CBI that criteria of selection was not fair is totally without any basis. Rather the criteria has already upheld by the High Court.
b) Further observation that Selection Committee has not divided the marks for interview under different sub head, hence committed illegality is also without any basis.
c) Selection of 6 candidates who have not appeared for interview also suffer no infirmity.
d) Further observation of the CBI that some candidates Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 10 secured higher marks than the candidates of general category, have not been shown in general category is also without any basis.
e) Further observation of the CBI that sufficient time was not granted is also without any basis.
f) Further observation of the CBI that there was a violation of the Election Model Code of Conduct is also without any basis.
g) Further observation of the CBI that there is no convincing reason for advancing dates of the interview.
h) Further observation of the CBI that two of the Chairman of the Selection Committee namely Sh. Vikas Arora and Ms. Bharti Arora were in their first posting as District Superintendent of Police is without any basis and does not effect the selection.
On these premises, Mr. Malik impugns the orders of termination of 61 candidates and at the same time complains of non- appointments of the rest.
Mr. Harish Rathee, learned Sr. DAG, Haryana, on the other hand, is vehement in his submission that the order of the Division Bench of this Court passed on 27.10.2005 disposing of Civil Writ Petition No.9695 of 2005 forecloses the case of the petitioners for reinstatement or appointment since it has become final and the petitioners thereunder could not secure any relief from the Court. He would then point to the subsequent order after the investigation report and status report were filed which also does not help the Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 11 petitioners. The only question remaining was what action was required to be taken against the erring officers that made selection. That order has also become final. The present writ petition has been filed claiming a writ in the nature of mandamus to the respondents, to consider the claim of the petitioners for appointment against 819 posts of Constables from the date, the appointments have been withheld. There is no prayer for setting aside of the enquiry report submitted by the CBI or for review of the order passed by this Court in CWP No.9695 of 2005.
Mr. Harish Rathee submits that the Police Department and the Government seemed to be in a tearing hurry to conclude the selection process before the coming elections and the Selecting Units had even advanced the date of interviews to this end which led to 357 candidates being interviewed on one day before the Karnal Board, especially pointed out by him but with the punctuation that in the other units the picture was more or less the same. Even if 3 minutes were given to each candidate, the exercise would have taken 300 hours without break which was humanly impossible. It was found that during the interview of certain candidates, only a few were present. Mr. Harish Rathee, has taken this Court through each of the record of the Selecting Units as deciphered and preened by the CBI. He would submit that the appointment of 61 candidates was in violation of the Election Code of Conduct and such appoints made in tearing hurry deserves to be nullified as it shows deviation in conduct of those then in-charge of affairs of Government and Police Headquarters. If the dates of interview were advanced, then sufficient notice could have been issued through Press and Media which if not done may have resulted in serious miscarriage of justice to absentee candidates without notice of change of Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 12 dates. After all thousands of candidates had applied for the 819 posts whose physical measurements were taken and the physical efficiency tests conducted. These figures were roughly between 4500 to 8000 in each centre. It is strange that the interviews were originally scheduled from November 23, 2004 to January 01, 2005 but the same was specifically advanced and the entire interview process was completed on 20th December, 2004 by clubbing the dates. Some candidates who were called for interview on December 07, 2004 were called one day in advance. All absentee candidates were called for interview on 17th, 18th and 20th December, 2004. In all 3189 candidates appeared in the interview conducted by the Selection Board, Kurukshetra. The same anomolous position existed in the other centres. In the report, there appears to be sufficient material to indicate that all was not right in the selection process in the evaluation of the marks and in the marks assigned in the interview. 15 marks for interview while dealing with the selection involving 819 posts and where thousands of candidates have applied, appears to be too small a scale to evaluate such large number of candidates compressed in such a small figure as 15 without evaluating under sub heads. The criteria laid down in pre partition PPR, 1934 by the framers of the rules could never have imagined that one day recruitment process may involve appointments to 819 posts in one lot. The interviews, obviously, were a farce and there is no reason to disbelieve the findings of the CBI in its enquiry report, even though, no criminal intent was made out. Legal and factual malice are a species of deviant intent which showed deviation of mind under huge pressure to pull off such a big deal of recruitment as hurriedly as possible. Or a mind succumbing to hidden directives of higher ups not capable of investigation discernible from the Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 13 record of selection. The scheme of recruitment, obviously, is to judge the suitability of the candidate for the police job. There is no relation between the physical efficiency and suitability. Therefore, it is all the more important that while selecting constables, a great care and caution is required to be taken to select absolutely the best since after appointment they wouldl deal with public for the next 30 years of service.
I feel that new methods should be evolved to broaden the scope of criteria laid down in PPR, 1934 in such a manner that the candidates for police jobs should be subjected to recruitment methods evolved by the Defence Forces in India subjecting the candidates to rigorous tests, psychological testing and test of reasoning for days together which may disclose thought processes consistent with discharge of onerous duty of great confidence that constables would be called upon to perform in the years to come. All this cannot be done in 2-3 minutes. Such interviews for the post, in question, are not suitable.
Besides, at this distance of time, it will be highly unsafe to appoint the petitioners. The orders passed by this Court in CWP No.9695 of 2005 appear clearly to foreclose to the case of the petitioners beyond redemption.
Mr. Malik, relies on the judgments in the cases reported; Jagpal Singh v. State of Haryana, 1999 (3) SCT 289, Manjeet Singh and others v. State of Haryana and others, 2000 (3) SLR 407 and CWP No.2896 of 2005 (Rachna and others v. State of Haryana and another) decided on 22.1.2007. However, these are distinguishable on facts from the special and peculiar facts of the present case. Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 14 In D.V. Bakshi and others v. Union of India and others, AIR 1993 SC 2374, the Supreme Court observed as follows : -
"8. The submission that the provision for clearing the oral test with atleast 50 per cent marks is susceptible to misuse, namely, to eliminate some and to accommodate others needs closer scrutiny. The submission is general in nature and would be true in all such cases where passing of an oral test is a 'must' to qualify for entry. The oral test being a highly subjective one such an allegation may be easy to make. But as pointed out earlier in certain situations a written examination alone may not suffice to assess the overall qualities of an individual and an oral test becomes necessary to evaluate his performance from certain other angles to make an integrated assessment of the candidate. As observed in Lila Dhar's, case (supra) a written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If an oral test is, therefore, a 'must' as in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the element of subjectivity will be largely checked and the marks assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate. In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favouritism, the same can be checked with reference to the record so maintained. Since the oral test is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a 'must' or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into Kumar Paritosh 2013.08.19 10:08 I agree to specified portions of this document CWP No.1924 of 2007 and connected petitions 15 the records or the oral test. But if the allegation is supported by some dependenable proof, the Court will satisfy itself whether or not the charge is well-founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be. In the present case, however, the allegation is of a general nature and is not supported by even light proof to infer, even prima facie, that the result of the oral test was tainted because of bias. We, therefore, do not see any merit in the contention raised by the petitioners."
In a selection of this kind, the burden of proof is light and compels this Court to restrain itself from directing appointments after total 8 years and 6 years from the filing of the present writ petition contrary to larger public interest. It is safer that these posts should be re-advertised where the petitioners should have a chance for re-selection. In case, some are age barred by law, that would remain in the discretion of the State Government to accord relaxation in age if public interest and equity demands. This would hold good only if no selection of constables in Police Control Room Staff was made, in the meanwhile, where the petitioners could have offered their candidature.
For the foregoing reasons, this writ petition is devoid of merit and stands dismissed, however, without any order as to costs.
August 16, 2013 (RAJIV NARAIN RAINA)
Paritosh Kumar JUDGE
Kumar Paritosh
2013.08.19 10:08
I agree to specified portions
of this document
CWP No.1924 of 2007 and connected petitions 16
*
S.No. Civil Writ Petitions Title
1 1924 of 2007 Sandeep and others v. State of Haryana & anr.
2 1935 of 2007 Purshotam and others v. State of Haryana and Ors.
3 2312 of 2007 Bajender Singh and others v. State of Haryana & anr.
4 2510 of 2007 Ajay Bhardwaj & others v. State of Haryana & anr.
5 2626 of 2007 Nirmal Singh and anr. v. State of Haryana & anr.
6 3259 of 2007 Parveen Kumar and others v. State of Haryana & anr.
7 5697 of 2007 Rajinder Kumar and anr. v. State of Haryana & anr.
8 20986 of 2011 Dharmender and others v. State of Haryana & anr.
August 16, 2013 (RAJIV NARAIN RAINA)
Paritosh Kumar JUDGE
Kumar Paritosh
2013.08.19 10:08
I agree to specified portions
of this document