WPSS/1111/2010 of BASANT BALLABH JOSHI and ANOTHER Vs STATE OF UTTARAKHAND and OTHERS on 30 December 2010

1. Heard Sri D.S. Patni, learned counsel for the petitioners and Sri Dinesh Gahtori, learned Standing Counsel for the State.

2. This writ petition has been filed by the petitioners seeking a writ, order or direction in the nature of Mandamus to send the petitioners on training of Sub-Inspectors and to promote the petitioners as Sub Inspector on the vacancies of the year 2007-08.

3. Brief facts of the case are that vide notification dated 15.3.2007, a recruitment drive was taken for the posts of Sub Inspector by the Police Department, Uttarakhand for the year 2007-2008. Feeding cadre for the post was constables and Head Constables in the department. The petitioners applied in pursuant to the notification dated 15.3.2007. Thereafter, they qualified in all four stages of examination starting from Preliminary Test, Physical Examination (IT & PT), Main Examination as well as in the interview. A candidate, who is successful in all these four stages, is liable to be sent for training of Sub Inspector to Police Training College, Moradabad, therefore, the petitioners state that they are liable to be sent for training of Sub Inspector.

4. In the counter affidavit, on this assertion / averment of the petitioners, the respondent in paragraph 7 has stated that the contents of para no. 7 of the writ petition as stated are matters of record, as such need no comments. Learned counsel for the State in other words has admitted the fact that the petitioner were successful in all four stages of examination. However, during this period a writ was filed by three other persons being Writ Petition (SS) No. 575 of 2008, who obtained an interim order from this Court. In the said writ petition, this Court on 08.8.2008 passed an interim order directing the respondents to allow those petitioners to provisionally appear in the same examination which was to be held on 10.8.2008. These were the candidates who had not qualified the screening test. Consequently, in compliance of the interim order of this Court, they were allowed to appear in the promotional examination. Further more, this Court passed the following interim order on 20.10.2008:- “It has been stated in the affidavit that the result of the said examination is ready but has not been declared and the respondents have come forward that the clarification may be sought from this Court in this regard.

Since the petitioners have been permitted to provisionally appear in the aforesaid examination, therefore, respondents are directed to declare the result of the said examination and if the petitioners have qualified therein they shall also be allowed to participate in further process of selection and if selected, they shall be appointed on the promotional post.

However, it is made clear that the said appointments shall be subject to the decision in the writ petition.”

4. In other words, by way of interim order, this Court directed to declare the result of the three candidates. All the same, when the matter came for final hearing, the writ petition was dismissed by judgment and order dated 21.4.2010 passed by learned Single Judge. The operative portion of the order is reproduced as under:-

“In the light of the aforesaid, this Court is of the opinion that the permission granted to the petitioners to appear further in the selection process was entirely at the risk and responsibility of the petitioners. The declaration of the results and the selection on the promotional post was subject to the decision of the writ petition. The petitioners chose the said risk and since they could not qualify at an intermediate stage, the Court is of the opinion that the said advantage cannot be permitted to be given to the petitioners when in similar circumstances, there would be other candidates who had also become unsuccessful in the screening test.

In the light of the aforesaid, the Court is of the opinion that since the petitioners could not qualify the screening test, they became ineligible for further consideration on the promotional post and, therefore, cannot be allowed to continue. In the light of the aforesaid, this Court does not find any merit in the writ petition and is dismissed. In the circumstances of the case, parties shall bear their own cost.”

5. This order was challenged in the Special Appeal being Special Appeal No. 72 of 2010. The special appeal was also dismissed by a Division Bench of this Court on 25.8.2010. The operative portion of the order explains every thing:- “6. It appears to us that the very reason for the appellants to approach this Court was to obtain a direction for constitution of yet another board for re-examining the appellants, they having lost before a board already constituted, before whom they had appeared without any reservation. Such an approach by litigants to the Judicial Review Court should be shunned and nipped in the bud. The appellants approached this Court to whittle down their failure. The object and purpose of approaching this Court being unjust, the writ petition shuld have been, according to us, nipped in the bud. Because the writ petition was kept pending and because from time to time various orders were passed thereon as and by way of interim orders the appellants got something which they in law could not get for as yet no board has declared that the appellants have passed the general drill and physical examination which comes in between the preliminary examination test and the final examination. We, accordingly, dismiss the appeal. We have with great effort restrained ourselves from imposing exemplary costs in the appeal.”

ourselves from imposing exemplary costs in the appeal.”

6. Now the petitioners’ case is that because of the interim orders passed by this Court in writ petition of those three persons and consequent orders passed by the Police Authorities, they were illegally restrained and not sent for training. Ultimately, the petitioners in Writ Petition (S/S) No. 575 of 2008 lost their case and now it was the petitioners, who were now liable to be sent for training of Sub Inspector, but for no fault on their part, they have been restrained from undergoing the training and from being appointed as Sub Inspector. This stand of the petitioners has been admitted by the respondents. However, the respondents have shown their inability to send the petitioner for training of Sub Inspector stating that there is nothing like a waiting list in the Department and therefore, they cannot send the petitioners for training. This aspect of the matter has already been examined in similar matter in Writ Petition (S/S) No. 307 of 2007 by learned Single Judge of this Court. The facts of both the cases appear to be similar. Some constables, who were not selected in examination for the post of Sub Inspector in the year 2008-09, by an interim order they were given chance to appear in the examination. Their claim was ultimately rejected, but meanwhile the petitioners, who had successfully passed all the four stages of examination were restrained from being sent on training for Sub Inspector. The State had taken a similar stand in that writ petition as well stating that although some constables, who were unsuccessful candidates, had approached the Court and got interim orders from this Court and finally lost in their case, yet the petitioners cannot be sent for training of Sub Inspector as there is nothing like a waiting list. This stand of the State was not accepted by the learned Single Judge in its order dated 27.10.2010 passed in Writ Petition (SS) No. 307 of 2010. This Court is also of the opinion that there was absolutely no fault of the petitioners and they were illegally restrained from being sent for the training of Sub Inspector. It would be travesty of justice, if the petitioners are allowed to suffer like this. The writ petition is, therefore, allowed. The Director General of Police, Uttarakhand, Dehradun/ respondent no. 3 is directed to immediately send the petitioners for training of Sub Inspector and after the training is over to consider them for promotion to the post of Sub Inspector in the light what has been stated in the writ petition, for the year 2007-08.

7. No order as to costs.

Rathour

(Sudhanshu Dhulia, J.) 30.12.2010