Shocking News for UP Govt, SLP Dismissed , Police Recruitment Should be completed according to Advertisement 19 May 2011
UP Police, UP Police SI Sub-Inspector Recruitment,
एस एल पी ख़ारिज , अब उत्तर प्रदेश सरकार को पुलिस सब इंस्पेक्टर की भर्ती 19 मई 2011 को निकाले गए विज्ञापन से शीघ्रता से करनी होगी
मामला पुलिस भर्ती के अभ्यर्थीयों द्वारा दौड़ की लम्बाई को लेकर है
जिसमें उत्तर प्रदेश सरकार द्वारा दौड़ की लम्बाई 10 किलो मीटर से घटा कर लगभग आधी 4 . 8 किलोमीटर कर दी गयी थी , (कारण किसी अभ्यर्थी की मृत्यु को बताया गया था )
कोर्ट ने बोला की अधिकांश अभ्यर्थीयों ने इस 10 किलो मीटर की दौड़ को पूरा किया और पुलिस भर्ती के लिए अभ्यर्थीयों की शारीरिक दक्षता अच्छी होनी चाहिए , किसी एक अभ्यर्थी की मृत्यु अप्रत्याशित घटना थी
दुसरी सबसे महत्वपूर्ण बात (जिस पर सम्पूर्ण फैसला टिका ) - खेल के नियम बीच में स्वेच्छा से नहीं बदले जा सकते
Judgment reserved on 27.3.2014
Judgment delivered on 25.4.2014
SPECIAL APPEAL DEFECTIVE NO.292 OF 2014
State of UP & ors vs. Vindhyavasini Tiwari & ors
Hon'ble Sunil Ambwani, J.
Hon'ble Dr. Satish Chandra, J.
1.
This
intra court Special Appeal under Chapter VIII Rule 5 of the Allahabad
High Court Rules, 1952 is directed against the judgment of learned
Single Judge dated 9.12.2013 by which he has
quashed the Government
Order dated 3.9.2013 and the consequential order dated 24.9.2013
cancelling the entire proceeding of selection/recruitment, initiated
vide advertisement dated 19.5.2011 by the UP Police Recruitment and
Promotion Board, Lucknow on 3698 substantive posts of Sub Inspector
(Civil Police), and 312 posts of Platoon Commander in Provincial Armed
Constabulary (PAC). Learned Single Judge has directed the State
respondents to complete
recruitment commencing from the stage it was
stopped, in accordance with the rules as they stood before 5 th
Amendment Rules, 2013 expeditiously but not later than three months from
the date of
production of a certified copy of the order before the respondents competent authority.
2.
We have heard Shri Piyush Shukla, Standing Counsel appearing for the
State appellants. Shri Ashok Khare, Senior Advocate assisted by Shri
K.M. Asthana and Shri Seemant Singh
have appeared for the respondents, who were petitioners in the writ petitions.
3.
Brief facts giving rise to this Special Appeal are that prior to
enforcement of U.P. Sub Inspector and Inspector (Civil Police) Service
Rules, 2008, and U.P. Pradeshik Armed Constabulary
2 Subordinate
Officers Service Rules, 2008, the recruitment to Civil Police and PAC
was governed by the executive instructions issued from time to time. The
Rules made in the year 2008 separately for
the Sub Inspector and
Inspector (Civil Police) and PAC were notified on 2.12.2008. The U.P.
Sub Inspector and Inspector (Civil Police) Service Rules, 2008 has
thereafter undergone seven amendments upto 11.12.2013, whereas the U.P.
Pradeshik Armed Constabulary Subordinate Officers Service Rules, 2008
has undergone four amendments. In this Special Appeal we are concerned
with the 1st Amendment dated 2.4.2009 and the Corrigendum dated
10.6.2009, issued to 1st
Amendment dated 2.4.2009 amending Rule 15
and the 5th Amendment dated 1.3.2013 by relaxing the standard of
Physical Efficiency Test in Column No.II (e) in the Rules of 2008;
applicable
to recruitment of Sub Inspector and Inspector in Civil Police, whereby the following amendment was carried out:-
(e)
Physical Efficiency Test – The candidates who are declared successful
in the preliminary written test under clause (d) shall be required to
appear in a Physical Efficiency Test of qualifying nature.
The male
candidates shall be required to complete a run of 4.8 kilometers in 35
minutes and the female candidates a run of 2.4 kilometers in 20 minutes.
The procedure for conducting the Physical
Efficiency Test shall be such as prescribed in Appendix-2.”
4.
Similarly the 3rd Amendment dated 6.6.2013 under Rule 18 of the U.P.
Pradeshik Armed Constabulary Subordinate Officers Service Rules, 2008,
has carried out amendments to the same effect relaxing the criteria for
the distance and time of run in the physical efficiency test.
5.
An advertisement was published on 19.5.2011 by the State Government
through U.P. Police Recruitment and Promotion Board, Lucknow for
recruitment of 3698 substantive posts of Sub Inspector (Civil Police)
including 1849 posts in General Category; 998 in 3 Other Backward Classes, 777 in Scheduled Castes and 74 in Scheduled Tribes. The advertisement also included recruitment of
312 substantive posts of Platoon Commander in PAC including 156 in General Category, 84 in Other Backwar Classes, 66 in Scheduled Castes, and 6 in Scheduled Tribes.
6. In the second column of the advertisement the recruitment procedure was prescribed to be undertaken in six steps namely (1) Physical Standard Test; (2) Preliminary Written Examination; (3)
Physical Efficiency Test; (4) Main Written Examination; (5) Group Discussion and (6) Medical Examination. The candidates, who meet the minimum of physical standards could appear in the preliminary written examination in which they were required to secure 50% marks to be eligible for the next step for physical efficiency test.
Clause 2.6 of the advertisement provided for the standard of physical efficiency test of qualifying nature. The candidates, who are declared successful in this test, are eligible to appear in the main written examination. Clause 2.6 further provided that male candidates will be expected to complete 10 kilometres race in 60 minutes and female candidates 5 kilometres race in 35 minutes in accordance with the then prevailing Rules of 2008. Steps 1, 2 and 3 are qualifying in nature. The candidates fulfilling the prescribed minimum physical standard; securing 50% marks in the preliminary written examination and completing the physical efficiency test, were eligible to appear in the further steps in the selection.
7. The physical standard test was held and carried out as per advertisement in September-October, 2011 after which the preliminary written test was held on 11.12.2011, in which approximately 2,70,000 candidates appeared. The result of the preliminary written test was declared on 1.1.2013 in which 39,315 candidates qualified to appear in the next qualifying level. The physical efficiency test was scheduled to be held between 5.2.2013 to 22.2.2013.
8. On 18.2.2013 one of the candidates namely Satendra Kumar Yadav, while appearing in the physical efficiency test of the run of 10 kilometres, died while running, before completing the test. The matter was widely published in media, on which on 20.2.2013 an order was issued by the Secretary, Government of UP, to the Chairman of UP Police Recruitment & Promotion Board directing that since one of the candidates had died after he had fallen on the ground, while taking part in the physical efficiency test, the physical efficiency test, which is a part of the selection, is postponed for a period of one month.
9.On a request made by the Chairman, UP Police Recruitment and Promotion Board, Lucknow on 14.3.2012 the Secretary, Government of UP vide his letter dated 11.4.2013 directed him to
complete the selection process according to UP Sub Inspector and Inspector (Civil Police) Service (5
th Amendment) Rules, 2013 notified on 1.3.2013, for the remaining candidates, who had not
completed the test or who were declared unsuccessful or were absent in the physical efficiency test. Consequently a notice/notification was published on 27.6.2013 directing all the candidates, who had not participated in the physical efficiency test or who were declared unsuccessful and were absent to complete the physical efficiency test. The notification provided the revised standards in accordance
with the 5th Amendment to the Rules of 2008, namely that the male candidates will be required to complete a run of 4.8 kilometres in 35 minutes and the female candidates a run of 2.4 kilometres in 20 minutes.
10. A Service Single No.91 of 2013 (Kendra Kunwar vs. State of UP and others) was filed at Lucknow Bench of this Court. The 5 petitioner in the writ petition was declared unsuccessful in the
physical efficiency test. Learned Single Judge dismissed the writ petition on the ground that the petitioner after participating in the selection was declared unsuccessful in the preliminary written test
and thus he has no right to challenge the procedures adopted in the selection.
11. In another Writ A No. 36383 of 2013 (Rajesh Kumar vs. State of UP & another) challenging the notification by which the 5th Amendment to the Rules of 2008 was carried out on 27.6.2013 with
regard to the standards of physical efficiency test, learned Single Judge passed following orders:-
“Hon'ble Devendra Pratap Singh,J. Heard learned counsel for the petitioner and Sri C.B. Yadav, Learned Additional Advocate General for the respondents.
Sri Yadav prays for and is granted three weeks further time to file counter affidavit.
The petitioners in this petition and the petitioners of the connected writ petitions had applied for direct recruitment to the post of Sub-Inspector in accordance with the advertisement issued in 2011 under the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules,2008. They were subjected to physical standard test and preliminary written test and thereafter in the physical efficiency test and all of them cleared the three stages of recruitment. However, a notification was issued on 27.6.2013 amending the rules with regard to physical efficiency test which has been challenged.
The recruitment to the post of Sub-Inspector is by direct recruitment and from rankers.
It is evident that the recruitment process had been initiated and it is settled law that once recruitment process had begun, rules cannot be amended so far as that recruitment is concerned, as rules of the game cannot be altered midway and the respondents cannot invoke the power of rule 28 so far as the direct recruits are concerned.
Accordingly, the respondents are restrained from proceeding further on the basis of altered physical efficiency criteria.
However, it would be open for them to carry on that recruitment on the basis of the old 6 rules or if they are so advised, the entire recruitment may be undertaken in accordance with the new criteria but following the law on the issue.
It is clarified that this interim order does not relate to promotion of rankers to the post of Sub-Inspector.
List after three weeks.
Order Date :- 11.7.2013”
12. On 13.7.2013 in compliance with the interim order passed by this Court on 11.7.2013 in Writ A No.36383 of 2013 (Rajesh Kumar vs. State of UP & another) a decision was taken by the Chairman of the UP Police Recruitment & Promotion Board in a meeting in which Director General of Civil Police, and the Director General of PAC participated, that in view of the incident of death in the physical efficiency test and considering the directions issued by the High Court, in public interest, the selection procedure be started afresh and that the vacancies, which have arisen upto June, 2015 on account of promotion/retirement may also be included in the new notification.
13. In pursuance to the resolution in the meeting of the UP Police Recruitment & Promotion Board, a decision was taken by the State Government on 3.9.2013 to cancel the entire proceedings of
selection/recruitment initiated by the advertisement dated 19.5.2011, and to start the selection process afresh including vacancies upto June, 2015.
14. The Writ Petition No.17372 of 2013 connected with Writ Petition No.36383 of 2013 (Rajesh Kumar vs. State of UP & another) was dismissed as having become infructuous on the ground that the selections have been cancelled. The interim order dated 11.7.2013 merged in the final order.
15. The State Government has not yet announced the fresh 7 selections so far. In the meantime the petitioners, who are respondents in this Special Appeal filed Writ A No.57576 of 2013 (Vindhyavasini Tiwari and 4 ors vs. State of UP & 2 ors); Writ A No.63093 of 2013 (Manjit Krishna and 16 ors vs. State of UP & 2 ors) and Writ A No.60538 of 2013 (Arvind Kumar vs. State of UP &
2 ors). Learned Single Judge considered the facts and circumstances of the case and the effect of the 5
th Amendment to the Rules of 2008 by which the standard of physical efficiency test were altered and
held that the amendments carried out in the Rules of 2008, do not show that the amended Rules will govern the recruitment. The State Government by Office Memorandum dated 27.6.2013 notified
recommencing of the physical efficiency test on 7.7.2013, providing that besides remaining candidates who were yet to participate in the physical efficiency test in the recruitment process, even failed candidates and absentees would be permitted to complete the physical efficiency test as per amended rules i.e. reduced length of run as also altered period within which the run had to be completed.
While rejecting the challenge to the vires of the amendments made by the 5th Amendment of 2013 and the 3rd Amendment Rules of 2013 for recruitment to Sub Inspector (Civil Police) and Platoon
Commander in PAC, he held that in the matter of recruitment and appointment the recruitment procedure as was available on the date of occurrence of vacancy must be followed to fill in the advertised vacancies, unless and until the changed procedure or alteration or amendment in the rules has been specifically made retrospective, so as to govern the on going recruitment. When a vacancy occurs the general principle is that it must be filled in according to the procedures applicable at the time when the vacancy occurred.
16. Learned Single Judge relied on Y.V. Rangaiah and ors vs. J. Sreenivasa Rao and ors AIR 1983 SC 852; A.A. Calton vs. the Director of Education and another AIR 1983 SC 1143; P.Ganeshwar Rao and others vs. State of Andhra Pradesh and others AIR 1988 SC 2068; B.L. Gupta and another vs. M.C.D.,1998 (9) SCC 223; State of Rajasthan vs. R. Dayal 1997 (10) SCC 419; Arjun Singh Rathore and ors vs. B.N. Chaturvedi and ors (2007) 11 SCC 605; State of Punjab and ors vs. Arun Kumar
Aggarwal and ors 2007 (5) SLR 237 and a Division Bench judgment of this Court, which has followed the aforesaid decisions, in which it was held that the vacancies existing in 2011 in respect
whereof the advertisement was published on 19.5.2011, deserved to be dealt with in accordance with rules as applicable at that time. The subsequent prospective amendments would not govern the selections.
The selections for the vacancies, which have arisen after 2011 may be made in accordance with the rules as amended by 5 th Amendment to the rules in the year 2013 and the 3 rd Amendment to the rules applicable to PAC in the same year of 2013.
17. On the second issue as to whether the competent authority can cancel a recruitment process at any stage unless the decision taken is non-arbitrary and for valid reasons, learned Single Judge held that
the only reason assigned in the case is that of interim order dated 11.7.2013 passed in the Writ Petition No.36383 of 2013 (Rajesh Kumar vs. State of UP & ors). The decision, when analysed in depth would show that the respondents have completely misdirected themselves. They have misread the interim order dated 11.7.2013 in which learned Single Judge added the words “but following law on the issue”. The respondents did not look into nor considered whether it was permissible in law to continue with the recruitment under the old rules, and decided to cancel the entire selections. The decision was not an informed and reasoned decision. He further held that since the interim order gets merged into final order, the decision 9 taken in pursuance to the interim order cannot be accepted.
18.Learned Single Judge also considered the public interest involved, and held that since admittedly more than 39,000 candidates had participated in physical efficiency test, which is the third stage of
recruitment; and in which number of candidates proved their physical efficiency by completing rigorous running test of 10 kilometres for male candidates and 5 kilometres for female candidates successfully as per the old rules, the candidates who have failed had no justification to request for appearing in the re-test; and similarly there was no justification for the candidates, who had failed or had absented in the test to participate in the process.
19. Learned Single Judge thereafter held that those candidates, who have been selected through more rigorous test would be more useful for police force than those who would be selected after reduced standards. In para 57 of the judgement learned Single Judge held as follows:-
“57. Be that as it may, the candidates selected through more rigorous test would be more useful for police force than those who would be selected after reduced standard. It goes beyond comprehension of any person of ordinary prudence how recruitment made with rigorous test, particularly, when the matter relates to uniform force like police, directly responsible besides other for maintenance of
public law and order etc., would be less in public interest than having persons recruited with relaxed or reduced standard.”
20. Learned Single Judge for the aforesaid reasons held that the decision taken by the State Government to cancel the selection process and to re-start the process afresh was entirely arbitrary and against public interest. The argument, that the rigours of the physical efficiency test, were relaxed to save the life of young candidates, was not accepted. He held that the recruitment in question pertains to police force which must answer the best standards of physical 10 strength, endurance, stress, efficiency etc which must be quite higher than the average common man otherwise the members of police force may not be able to perform the kind of job they are supposed to. The
job of a police officer requires courage, valiant, persistent onerous physical stressed duties etc., and therefore, harder standards are needed. These standards have continued for decades together and
have stood the test of time. A large number of candidates have successfully achieved the requisite physical test and when such standards were actually met by large number of candidates, a single
unfortunate incident could not be a ground to cancel the selections.
21.Learned Standing Counsel appearing for the State appellants submits that the State Government is competent to frame rules or to make any amendments in the rules. The 5th Amendment to the rules
made in the year 2013 revising the standard of physical efficiency test was not challenged. The State Government did not act arbitrarily in cancelling the selections and to re-advertise the recruitment under the amended Rules. The arbitrariness or unreasonableness by itself was not a ground to challenge the decision of the State Government to cancel the selections. He submits that where the State Government was satisfied that the operation of any rule regulating the conditions of service of persons appointed to service will cause 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.
22.Learned Standing Counsel further submits that the decision of the State Government to cancel the selection process is based on the subjective satisfaction, that it will cause undue hardship in selection
process, where a candidate had died. The relaxation was made in 17 30,000 candidates participated, could not be treated to be rigorous on the death of one candidate. His medical condition was not subjected to any enquiry. The incident, however, was singular and should not have been taken into consideration except for sympathies to his family of the deceased. The incident, without any proper enquiry could not have been taken into account for relaxing the rule by an amendment during the process of selections and for taking a decision to cancel the entire selections in which about 3 lacs candidates had participated.
30. We are informed that on account of delay in the selections and the pendency of the writ petitions, the State Government has not yet started the exercise of making fresh selections causing serious
shortage of police officers at entry level, resulting into deteriorating law and order situation in the State of UP and delay in pending investigations in the criminal cases.
31. In the past the succeeding Governments in the State of UP, have not favoured the recruitment in the police force at the entry level of Constables or Sub Inspectors initiated by the previous Governments. The administration and management of the police force by the Government to their advantage, has been a subject matter of perpetual litigation in courts in the State of UP. The selections of Constables was cancelled twice by succeeding governments in the past resulting into severe shortage of the trained Constables in the State of UP.
32. Every discretionary power in public law has to be structured on objective principles to be exercised with scrupulous care. The powers in public sphere vested in the authorities, for taking administrative decisions is given in order to deal with a case in a just, fair and equitable manner keeping in view the principles of law. The discretion must not be exercised to swallow the objectives for the 18 purposes of which it is vested and to render the basic purpose and object of use of power nugatory.
33.In the case in hand an exercise with more serious consideration and with expert legal advice should have preceded the decision taken by the senior police officers sitting together, to cancel the entire selection. There is nothing to show that they had taken any legal opinion from State Law Officers, on the interim order passed by the Court giving them option to either pursue with the selections under the old rules or to cancel the entire selections. The State appellant has
not placed any material before us that it had taken into consideration the expenditure incurred in the selections advertised in the year 2011, and the public interest to be served in notifying the selections afresh. The expenditure incurred in the selections, the requirement of the police officers at entry level, the aspirations and legitimate expectation of more than 30,000 young men and women of the State,
who had crossed the 3rd level in the selections, and the absence of any scientific data which was required to be collected from National Sports Colleges or experts in the Sports Medicine has vitiated the decision to cancel the entire selections. The entire exercise is thus held to be wholly arbitrary and unreasonable.
34. We do not find any good ground to interfere with the judgment of learned Single Judge in setting aside the Government Order dated 3.9.2013, and the consequential orders dated 24.9.2013 by which the selections were cancelled.
35. The Special Appeal is dismissed
. The respondents will complete the selection process initiated by advertisement dated
19.5.2011 as expeditiously as possible. There shall be no orders as to cost.
Dt.25.4.2014
RKP/
Source: http://elegalix.allahabadhighcourt.in/elegalix/WebDownloadJudgmentDocument.do?judgmentID=3270056
