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Uttar Pradesh issued another Order which superseded the earlier Order dated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.
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.
