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Tuesday, May 12, 2015

promotion of Constables and Head Constables to the rank of Sub-Inspectors in the State of Uttar Pradesh.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.6549 OF 2014
HC Pradeep Kumar Rai and Ors.                     ...Appellant(s)
                                  :Versus:
Dinesh Kumar Pandey and Ors.                      ...Respondent(s)
                                    WITH
CIVIL APPEAL NOS.6550, 6551, 6552,  6553,  6554,  6555,  6556-6561  OF  2014

                                     AND

           CIVIL APPEAL NOS.4327, 4328, 4329, 4330, 4331 and 4332
                                          OF 2015
[@ SLP(C) Nos.29275, 29267, 34936, 35196, 34882 of 2014 and SLP(C) No.2623
of 2015]
                                     AND

                   WRIT PETITION (CIVIL) NO.1057 OF  2014



                               J U D G M E N T
Pinaki Chandra Ghose, J:
Leave granted in  the  special  leave  petitions.  I.A.  No.52  of  2015  is
allowed.

This batch of appeals raises a common controversy relating to the  promotion
of Constables and Head Constables to  the  rank  of  Sub-Inspectors  in  the
State of Uttar Pradesh. The process of promotion started way  back  in  1999
and has since embroiled in litigation. Basically, the  candidates  appearing
for promotion from the rank of Constable or Head Constable to  the  rank  of
Sub-Inspector  have  challenged  the  selection  and  promotion  process  at
various stages of the promotion process.

The facts necessary for disposal of this case are  that  the  Government  of
Uttar Pradesh took a decision on 23.01.1999 for recruitment of  departmental
candidates to the posts of Sub-inspectors  in  the  State,  both  by  direct
recruitment  and  by  promotion  of  Constables  and  head  Constables.   In
continuation of the order dated 23.01.1999,  another  Government  Order  was
issued on 3.02.1999, according to which all the vacancies of  Sub-inspectors
till 31.12.1999 were to be filled  up.  On  27.02.1999,  the  Government  of
Uttar Pradesh issued another Order which superseded the earlier Order  dated
23.01.1999.  The  27.02.1999  order  provided  a  complete  pattern  of  the
examination and process of selection and promotion. As per the  new  pattern
the  promotion  process  was  to  be  conducted  in  three  steps:  (1)  The
preliminary written examination and infantry test/physical  test;  (2)  Main
written  Examination;  and  (3)  Interview.  Candidates  who  qualified  the
preliminary examination and IT/PT  were  eligible  to  appear  in  the  main
written examination.


As per the existing rules in 1999, 50% of total vacancies were to be  filled
up by promotion of persons serving as Constables  and  Head  Constables  and
the remaining 50% vacancies were to be filled up by direct  recruitment.  It
appears that at the time  the  selection  process  began,  there  were  2956
vacancies of the rank of Sub-inspectors  in  the  State.  So  initially  the
number of vacancies for promotees quota were 1478. However, It appears  that
vide order dated 10.01.2000, another 86 posts were added  to  the  promotees
quota to be filled up by the departmental examination in  pursuance  of  the
direction made by State Backward Classes Commission, to maintain  the  ratio
of promotees and direct recruits at the rate of 50%.  Thus,  the  number  of
vacancies for promotees quota became 1564. It is to be noted  that  pursuant
to the Division Bench judgment of the High Court  of  Allahabad  in  Special
Appeal No.1372 of 1999:  State  of  Uttar  Pradesh  Vs.  Ranbir  Singh,  the
Government of  Uttar  Pradesh  created  another  class  of  promotees  which
consisted of 385 Head Constables who were to be promoted directly by  virtue
of the length of their service without  undergoing  the  selection  process.
The creation of this class is not contended before us and  that  controversy
is settled by prior litigation.  Thus,  eventually  it  appears  that  total
vacancies for people who were to be promoted  after  the  selection  process
was 1176.

The preliminary test was held on 05.09.1999 and the result was announced  on
05.11.1999 and those who qualified the preliminary test  were  permitted  to
appear in IT/PT which was held in December 1999. The result  of  IT/PT  test
was declared on 11.02.2000, which was challenged before the  High  Court  of
Allahabad in Writ Petition No.9694/2000: Triloki Nath Pandey and others  Vs.
State of  Uttar  Pradesh,  and  the  entire  process  was  stayed  till  the
conclusion of litigation. Thus, at the end of that round of  litigation  the
State of  Uttar  Pradesh  was  directed  to  go  ahead  with  the  selection
procedure. Government Notification for  the  main  written  examination  was
issued on 9.12.2004 and  the  main  written  examination  was  conducted  on
25.12.2005. Result of the main written test was declared on  24.01.2006  and
pursuant thereto, 9671 candidates were called for interview. The  interviews
were held at four centres between 15.05.2006 to 20.07.2006. The  results  of
the interviews were made available on 11.11.2006.

It was after the declaration of the result of  interview  that  the  present
round of litigation began, whereby the  unsuccessful  candidates  challenged
the interview process on several grounds. Initially the  writ  petition  was
filed before the Allahabad High Court,  Lucknow  Bench,  which  allowed  the
petition and directed the State to conduct  fresh  interview  for  the  1176
vacancies  of  the  rank  of  Sub-Inspectors.  The  Division  Bench  of  the
Allahabad High Court allowed the  appeal  filed  by  the  State  Government,
thus, reversing the judgment of  the  learned  Single  Judge.  The  Division
Bench directed the State to appoint the candidates who were  selected  after
the interview already held, for the rank of Sub-Inspectors.

The learned Single Judge decision weighed on the following points:
There was substantial departure from the Police Regulations as amended  upto
1977 in the entire process of selection and promotion.
The number of candidates called for  interview  was  much  higher  than  the
required four times the number of vacancies available.  The  four  time  the
vacancies  rule  is  found  in  paragraph  445  of  Uttar   Pradesh   Police
Regulations, 1976.
The sealed cover procedure was not followed for the candidates against  whom
any disciplinary or criminal proceedings are  pending.  The  names  of  such
persons were also displayed on the tentative list of selected candidates.
The members of the Interview committee who conducted the interviews did  not
give separate marks individually but a single collective  marking  for  each
candidate was done by the committee.
The names of the persons who are already dead or are under training in  some
other Wing of  Police  Department  like  PAC,  were  also  included  in  the
tentative list of selected candidates after the interview.

The Division Bench found that the learned Single Judge had made findings  on
three basic points. The Division Bench upturned  those  three  findings  and
reversed the judgment on following grounds:
The Division Bench found that the rule of number of candidates being  called
for interview be not more than four times the number of vacancies was  found
in 1977 UP Police Regulations and same  was  superseded  by  the  Government
Order of 27.02.1999. The  27.02.1999  order  provided  that  all  candidates
securing 50% marks in main written exam shall be called for the interview.
It further held that once the candidates had participated in the process  of
selection  without  raising  objections;  they  could  not  be  allowed   to
challenge the process at a later stage.
With respect to sealed cover procedure, the Division Bench noted  that  this
procedure was a requirement under the order dated 23.01.1999 but  not  under
order dated 27.02.1999. Since the latter specifically superseded the  former
order, the sealed cover procedure was not requirement as such.
The Division Bench, with respect to  composite  marking  in  the  interview,
found that it is for the examining body to decide as to how  marking  should
be done. Separate  marking  or  consolidated  marking  are  two  methods  of
assessment and it is for the examining body to decide, not the Court,  which
method is preferable.
Division Bench further  refused  to  accept  the  argument  that  the  later
government  order  of  27.02.1999  was  not  to  govern  the  selection  for
vacancies which were announced by order dated 23.01.1999 and 03.02.1999.  It
found that this was a mischievous argument and very  clearly  the  procedure
set out under order dated 27.02.1999 was followed throughout  the  selection
process.

We have heard the learned counsels appearing for the parties. We  find  that
the Division Bench of the High Court was  very  lucid  and  correct  in  its
findings and conclusion reached thereupon.  Nevertheless,  we  will  discuss
all the points raised before us and give our findings.

Regulation 445 of the said Regulations of UP  Government  (as  amended  upto
31.08.1977) provides for qualifications and  procedure  for  promotion  from
rank of Constable and Head  Constables  to  Sub  Inspectors.  The  procedure
therein consists of  Notice,  pre-examination  (essay  type  written  exam),
examination  of  character  roll,  main  written  examination  and   finally
interview. The Regulation provides that the number of candidates called  for
interview, on the basis of the merit of the main written examination,  shall
be four times the number of vacancies. In the interview, 40%  marks  are  to
be allocated to the service record. It has been submitted and  clarified  to
us that these regulations are actually a compilation  of  Government  Orders
issued from time to time. Therefore, we find that the Regulations are not  a
superior law as compared to the Government Orders and it  may  be  amiss  to
suggest that Regulations would prevail over the Government Orders by  virtue
of being called Regulations. Having said that,  we  go  on  to  examine  the
Government Orders issued by the UP Government in 1999.

Government Order dated 23.01.1999 is worded as “His Excellency the  Governor
hereby  orders  to  adopt  the  following  procedures   for   selection   of
departmental candidates as Sub Inspectors, Civil Police of UP  Police.”  The
said Order provides  for  preliminary  examination  (objective  type),  main
written  examination  and  the  personality  test  (or  the  interview).  It
provided that the panelists conducting personality test must give  marks  to
each candidate separately  and  the  head  of  the  Recruitment  Board  must
aggregate the marks given by all panelist and thereafter  the  final  result
would be declared. The Order also provided for character  roll  and  service
record shall also be assessed. The Order was  addressed  to  the  Secretary,
Police/P.A.C. Recruitment Board,  Headquarters,  Director  General  of  U.P.
Police and directed the Secretary to  make  arrangements  in  terms  of  the
procedure set out in the said Order.

Then  comes  the  Government  Letter  dated  03.02.1999,  addressed  to  the
Secretary, Police/P.A.C. Recruitment Board, Headquarters,  Director  General
of U.P. Police. This Order directed the Secretary of  Recruitment  Board  to
begin the Selection procedure for  the  1478  seats  of  the  rank  of  Sub-
Inspectors in Civil Police. We have already mentioned  that  the  number  of
seats was later reduced to 1176 (for reasons already  discussed)  and  there
is no controversy on that.

Then comes the Government Order dated 27.02.1999,  again  addressed  to  the
Secretary, Police/P.A.C. Recruitment Board, Headquarters,  Director  General
of U.P. Police. This order very categorically provided that the Order  dated
23.01.1999 is superseded by this Order and it set out a  new  procedure  for
selection of the departmental candidates. The  procedure  provided  by  this
order included a Preliminary Written Examination (objective type),  Physical
Test and Infantry Test for those who qualify  the  preliminary  examination,
main written examination and then the interview. It provided that all  those
who secured 40% marks separately in each subject and 50%  aggregate  in  the
main written examination would be called  for  the  interview.  Further  the
Order provided that  for  the  purpose  of  interview/Personality  Test  and
assessment of character roll/service record,  a  selection  panel  shall  be
constituted as per the requirement  and  its  members  shall  be  determined
keeping in mind the reservation policy of the Government. It  may  be  noted
that the Order did not say that the interview panel was  to  be  constituted
or was to function as per the Regulation  445  discussed  above.  The  order
also did not mention that the  members  of  selection  panel  were  to  give
separate marks for each candidate.

Now analysing all these government orders and regulations, we find that  the
procedure for selection of departmental candidates for the promotion to  the
rank of Sub-inspectors was changed  and  was  amended  by  every  Government
Order. Learned counsel appearing for the appellants cited the case of  State
of Rajasthan and Ors. Vs. Basant Agrotech (India) Limited, (2013) 15 SCC  1,
contending the scope of delegated legislation vis-à-vis parent  legislation.
However, in the present case, as already mentioned, the  regulations  cannot
be said to prevail  over  the  Government  orders.  Thus,  the  above  cited
judgment is not relevant for our purpose,  because  Regulations  are  merely
compilation of previous G.Os. Herein, the argument  of  implied  repeal  has
been forwarded. It is contended by the learned counsel for  the  State  that
the prior Government  Order  was  impliedly  repealed  every  time  the  new
procedure was laid down. To examine this argument, it will be  expedient  to
set out the relevant clauses from Regulation 445 and  the  Government  Order
dated 27.02.1999. Regulation 445(B)(4)  reads  as  follows:  “About  4  time
candidates to the number of vacancies, in the marker cadet should be  called
for  interview  according  to  the  merit  from  the  aforesaid  list.”  The
‘aforesaid list’ mentioned in Regulation 445(B)(4) refers to the merit  list
of the main written examination. Clause 8  in  the  Government  Order  dated
27.02.1999 reads: “The candidates securing  40%  marks  separately  in  each
subject and an aggregate 50% in all subjects  of  main  written  examination
shall be called for  interview.”  On  a  plain  reading  of  the  above  two
provisions  the  conflict  is  apparent.  Both  these   provisions   provide
different requirement for being called for  the  interview.  It  was  argued
that Clause 8 of Government order did  not  provide  the  qualification  but
only eligibility for a candidate to come in the list of interview.  However,
this contention cannot hold  good  since  the  word  used  in  Clause  8  is
“shall”. The rule makes it mandatory to call all those who secure 40%  marks
separately  in  each  subject  and  50%  marks  aggregate  in  the   written
examination to be called for the interview. If both the above  quoted  rules
were to exist, it would create  a  contradictory  situation.  Therefore,  we
find that Regulation 445 cannot be said to prevail  over  or  co-exist  with
the  Government  Order  dated  27.02.1999,  in  respect  of  the  number  of
candidates to be called for interview.

Furthermore, we find that there is no rule of law as to the ratio of  number
of vacancies to the number of candidates for  being  called  for  interview;
although it may be a rule of prudence. This  Court  has  found  in  Mohinder
Sain Garg Vs. State of Punjab and Ors., (1991) 1 SCC 662, as also  in  Ashok
Kumar Yadav Vs. State of Haryana, (1985) 4 SCC 417, that although it may  be
improper  for  the  Selection  Committee  to  call  such  large  number   of
candidates for interview, but selection cannot be vitiated  merely  on  this
ground if such an action is not tainted by mala fide or oblique  motive.  In
Mohinder Sain Garg (supra), this Court gave one more reason  not  to  accept
this argument which squarely applies to this case as well; this Court  found
that the Respondents stood no  chance  of  being  called  for  interview  if
candidates upto three times the number of posts were called  for  interview.
In the case on hand, on this score, learned counsel for the State  of  Uttar
Pradesh has made a similar contention. Even the appellants herein  have  not
presented a case that had they been called for interview,  being  only  four
times the number of vacancies, they would have been  short  listed  in  that
list. Thus, we find this argument as a misplaced one.

Moreover, we would concur with the Division Bench on  one  more  point  that
the appellants  had  participated  in  the  process  of  interview  and  not
challenged it till the results were declared. There  was  a  gap  of  almost
four months between the interview and declaration of  result.  However,  the
appellants did not challenge it at that time. Thus,  it  appears  that  only
when the appellants found themselves to  be  unsuccessful,  they  challenged
the interview. This cannot be allowed. The candidates cannot  approbate  and
reprobate  at  the  same  time.  Either  the  candidates  should  not   have
participated in the interview and challenged the procedure  or  they  should
have challenged  immediately  after  the  interviews  were  conducted.  (See
Vijendra Kumar Verma Vs. Public Service Commission,  Uttarakhand  and  Ors.,
(2011) 1 SCC 150, and K.H. Siraz Vs. High Court of Kerala and Ors. (2006)  6
SCC 395)

Further, in our view, the Division Bench has correctly dealt with the  issue
of sealed cover  procedure.  The  process  of  sealed  cover  procedure  was
devised to prevent any prejudice being caused to the  persons  against  whom
the disciplinary or criminal proceedings are pending. In the  present  case,
it is nobody's case  that  such  persons  are  prejudiced.  Therefore,  this
contention does not hold any merit in the present case.

Now, so far as the question  of  awarding  consolidated  marks  by  all  the
panelists in the interview is  concerned,  we  are  in  agreement  with  the
finding of the learned Single  Judge.  The  purpose  of  constituting  multi
member  interview  panel  is  to  remove  the   arbitrariness   and   ensure
objectivity. It is required by each member of the interview panel  to  apply
his/her own mind in giving marks to the candidates.  The  best  evidence  of
independent application of mind  by  each  panelist  is  that  they  awarded
separate marks. However, if only  consolidated  marks  are  awarded  at  the
interview, it becomes questionable,  though  not  conclusive,  whether  each
panelist applied his/her own mind independently. Having said that,  we  note
that this Court cautioned in Lila Dhar Vs.  State  of  Rajasthan  and  Ors.,
(1981) 4 SCC 159, that  it  is  not  for  the  Courts  to  re-determine  the
appropriate method of selection unless obvious oblique  motives  are  proved
in a particular case. Even in  Lila  Dhar's  case  (supra),  the  issue  was
regarding the marks awarded by the Selection Committee as  one  consolidated
marks; the Court refused to interfere with the appointment process  on  this
ground. Only because the panelists on the interview committee did not  award
separate marks, cannot be a ground to quash the entire process.  Also,  with
respect to the legal argument that the  Government  Order  dated  03.02.1999
provided that the marks must be separately awarded by  interview  panelists,
we hold that the Government Order dated 3.02.1999  was  in  continuation  of
the Government Order dated 23.01.1999, which  was  superseded  expressly  by
Government Order dated 27.02.1999. The  Government  Order  dated  27.02.1999
did not provide any condition that the marks were to be  separately  awarded
by each interview panelist. Thus, it cannot be argued  that  the  Government
did not follow the rules framed by itself.

Further, it is a settled law that in cases like the present  one,  where  an
Executive action of the State is challenged, Court must tread  with  caution
and not overstep its limits. The interference by  Court  is  warranted  only
when there are oblique motives or there is miscarriage of  justice.  In  the
present case, there is no oblique  motive  or  any  miscarriage  of  justice
warranting interference by this Court.  Hence,  the  appeals  and  the  writ
petition are dismissed.


….....…..…………………..J
(Ranjan Gogoi)





….....…..……………………J
(Pinaki Chandra  Ghose)
New Delhi;
May 11, 2015.

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