NIRBHAY KUMAR & ORS. versus STATE OF BIHAR & ORS. on 11 June 2020

1. This bunch of writ petitions have been filed under Article 32 ofConstitution of India by the petitioners claiming appointment to the postof Sub-Inspector of Police in the State of Bihar claiming parity with 133Gcandidates who were appointed under Orders of this Court by subjectingthem only to the Medical test and not subjecting them with the Physicaltest. Counter Affidavit has been filed in writ petition No.227 of 2019 byState of Bihar as well as Bihar Staff Selection Commission which writpetition is being treated as a leading writ petition. The facts and claimsHmade by writ petitioners in all these petitions being based on same ground, it shall be sufficient to refer to pleadings in writ petition No.227 of 2019for deciding all the writ petitions. There has been a checkered history oflitigation with regard to selection to the post of Sub-Inspector conductedin the State of Bihar.

2. Brief facts and sequence of the events giving rise to the writpetitions need to be noted first: -

i.An Advertisement No.704 of 2004 was issued by BiharStaff Selection Commission (hereinafter referred to as‘Commission’) for appointment of 1510 posts of Sub-Inspector in the State of Bihar. The Physical test andthereafter written examination were part of the process ofselection. Physical Test in pursuance of 2004 selection washeld in the year 2006 and those selected were permitted totake written examination in the year 2008. The result wasdeclared on 30.05.2008.

ii.There were certain mistakes in model answers with regardto which writ petitions were filed in the Patna High Courtchallenging the result. The Commission appointed an expertCommittee and re-scrutinizes the answer sheets.consequently, 160 originally selected candidates wererequired to be removed. The State Government decided toretain 160 originally selected candidates also. Consequently,639 more vacancies were added to accommodate 160originally selected candidates and to maintain the roster.

iii.The candidates still unsatisfied regarding correctness ofsome answers and increase of vacancies by 639, filed writpetitions in the High Court and ultimately the matter wascarried to this Court in C.A.Nos.1240-1241 of 2011 withconnected appeals. This Court noticed that requisition forappointment of 299 posts of Sub-Inspector of Police hasbeen received to the Commission from the StateGovernment. This Court directed the Commission to holdfresh examination for 299 posts of Sub-Inspector and onlythose appellants who were writ petitioners before the HighCourt or pending before the High Court (Total-223 as perlist given in the Court) are at liberty to appear in the Physicalas well as written examination. The appeals were decidedon 02.02.2011 issuing the above direction to the Commission.

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Aiv.Subsequently, this Court vide order dated 28.11.2011 afterconsidering various IAs filed in the decided appealspermitted all the applicants who are similarly situated tothose candidates who are eligible to appear in theexamination for 299 posts of Sub-Inspector. It is useful toquote following portion of the order:-B

“...By the aforesaid order dated 2[nd] February, 2011,we had permitted only 223 candidates to appear inthe examination. But now, after perusing theapplications and hearing the counsel for the parties,we deem it appropriate to permit all these applicantsCwho are similarly situated and also those candidateswho are eligible, to appear in the examination for299 posts of Sub-Inspector of Police. Uniformstandard would be made applicable to all thecandidates and all the candidates appearing for theDabove post will have to undergo similar physical andthe written examination.”

v.For filling of 299 posts, advertisement No.704/511 dated28.06.2011 was issued in pursuance of this Court’s orderdated 02.02.2011. The advertisement provided for selectionEprocess which consist of: -

a) Physical standards and examination;

b) Written examination.

The candidates declared successful in Physicaltest were required to undertake an Objective typeFexamination.

vi.As noted above, in pursuance of Selection of 2004, resultof select list of 1510+639 i.e. 2149 was declared and theappointments were made. The High Court in a writ petitionissued a further direction to appoint 67 candidates belongingGto most backward category who were wrongly left out.The State appointed those 67 and to retain those who wereto be displaced decided to appoint 186 more candidates.There was challenge to appointment of 186 candidates inthe High Court and the matter ultimately came to this Court H

NIRBHAY KUMAR & ORS. v. STATE OF BIHAR & ORS.[ASHOK BHUSHAN, J.]

where this Court on 15.08.2005 directed to maintain statusquo.

vii.In separate selection for 299 posts in view of the clarificationdated 28.11.2011, 2479 candidates were required toundertake the selection process. This Court in C.A. Nos.2795-2797 of 2017 and other connected matters had passedorder to proceed with the Physical test vide order dated05.05.2017. It was brought to the notice of this Court thatonly 2192 candidates turned up for selection for Physicaltest out of which only 232 qualified and in the process ofselection of 299 posts ultimately only 97 candidates werefinally selected. This Court had permitted appointment ofthose 97 candidates selected and also 186 candidates whomthe State decided to appoint to accommodate 67 OBCcandidates.

viii.The large number of candidates who had applied inpursuance of advertisement No.511 of 2011 did not appearfor Physical test and most of them who appeared weredeclared fail. All the writ petitioners are the candidates whohad applied in pursuance of Advertisement No.511 of 2011who either did not participate in the Physical test orparticipated and failed. This Court on 14.09.2017 inC.A.Nos.2795-2797 of 2017 has directed that 1035candidates who did not turned up for selection be subjectedto Physical test which number also included 133 candidatesif not otherwise included.

ix.Contempt Petitions were filed in C.A.No.2805 of 2017 andC.A. Nos.2806-2810 of 2017 which appeals were disposedof on 14.09.2017 along with C.A.Nos.2795-2797 of 2017.This Court referred to its order dated 08.05.2017 and tookthe view that this Court having carved out and classified133 candidates into a specific category and placed themalong with 186 candidates, there cannot be any otherprocedure for 133 candidates except the Medicalexamination. This Court took the view that 133 candidatesshould not be permitted to take another written test andPhysical efficiency test. The said order was passed in A

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Aexercise of jurisdiction under Article 142 of the Constitutionof India and was stated to be not treated as a Precedent.

x.Certain applicants had also filed applications forimpleadment in the Contempt who were permitted to makerepresentations before the Competent Authority who wasBdirected to decide the said representation. 133 candidateswho were referred to in the order of this Court and on24.10.2018 were not subjected to Physical test and weregiven appointment as Sub-Inspector of Police in pursuanceof Advertisement No.511/2011. After appointment of 133candidates who were not subjected to physical test, theCpetitioners in these writ petitions submitted representationto the Commission and the Government claiming that theyas well as 133 candidates were all part of list of 223 originalcandidates who were permitted to participate in selectionagainst 299 posts by order of this Court on 02.02.2011, theDbenefit of not undergoing Physical test which was extendedby this Court to 133 candidates should also be extended tothe petitioners and the petitioners should also have beenappointed as Sub-Inspector of Police as 133 candidates havebeen appointed. Various representations were given bypetitioners. The representations submitted by the petitionersEwere not acceded to. Hence the petitioners have filed thesewrit petitions. In W.P.No.227 of 2019 following is the prayermade by the writ petitioner: - “PRAYER

FIt is therefore most respectfully prayed that this Hon’ble Courtmay graciously be pleased to:

(a) Issue writ in the nature of mandamus or any other appropriatewrit, order or direction, directing the respondents to issueappointment letters to petitioner in parity with 133 candidatesGwho were part of original 223 candidates/petitioners, as directedby this Hon’ble Court vide order dated 02.02.2011 I CivilAppeal No.1240-44 of 2011.

(b) Issue writ in the nature of mandamus or any other appropriatewrit, order or direction, directing the respondents to subjectthe petitioners to the same test i.e. medical test as has beenH

undergone by 133 candidates, who have been issuedappointment letters and are now undergoing training.

(c) Pass any further order or directions, which this Hon’ble Courtdeems fit and proper in the facts and circumstances of thecase and in the interest of justice.

AND FOR THIS ACT OF KINDNESS THE PETITIONERSAS ARE DUTY BOUND SHALL EVERY PRAY.

Drawn by

Filed by

M.M.Singh Rameshwar Prasad Goyal

Advocate Advocate for the Petitioners

Drawn on: 15.1.2019

Filed on: 24.01.2019"

3. In the Counter Affidavit filed by the State, it has been statedthat petitioners are not entitled for appointment as Sub-inspector of Policenor they can claim any parity with 133 candidates who were treated asSpecial category by this Court in whose favour order was passed underArticle 142 of Constitution of India specially mentioning that the Orderof directing for their appointment shall not be treated as Precedent. Ithas been further stated that the petitioners either failed in the Physicaltest or have not undertaken the Physical test in pursuance ofAdvertisement No.511/2011, hence, they have no claim for beingappointed. The exception which was carved out for 133 candidates bythis Court cannot be claimed by all candidates who could not succeed inSelection against 299 posts of Sub-Inspector of Police.

4. The Commission has also filed a counter affidavit where it hasbeen pleaded that after order of this Court dated 20.04.2017 and08.05.2017, total 3227 candidates were found eligible to appear in Physicaltest and only 2192 candidates turned for selection. In paragraph 10(G),following has been pleaded: - “10.G. That in compliance to the orders dated 20.04.2017and 08.05.2017 passed by this Hon’ble Court total 3227candidates were found eligible to appear in physical test and A

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A2192 candidates turned up for selection, 232 cleared thephysical test and finally 97 of them cleared the writtenexamination. It appear that the present Writ Petitioners eitherhad not participated in the Physical or Written Test and ifthey participated then they had not succeeded in the testsconducted by the Respondents.”

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5. Shri Jayant Bhushan, learned senior Advocate has led thearguments on behalf of the petitioner appearing for petitioner in WritPetition No.227 of 2017. Shri Bhushan submits that under orders of thisCourt dated 02.02.2011 for selection against 299 posts, a list of 223candidates was given in which list all the writ petitioners in this bunch ofCcases were included as well as 133 candidates who were directed to beappointed by this Court without undergoing any physical test.

6. It is submitted that 133 candidates had claimed the parity with186 candidates who were decided to be appointed by State of Biharwithout subjecting to any test, same benefit ought to be extended to theDpetitioners also they being similarly situated to 133 candidates who weredirected to be appointed as against selection for 299 posts of Sub-Inspector.

7. Shri Bhushan submits that although petitioner did not appear inthe Physical test in pursuance of Advertisement no.511/2011 but postsEare still available on which they can be appointed. Shri Bhushan submitsthat there are still 67 posts vacant on which all the petitioners can beaccommodated.

8. Smt. Aishwarya Bhati, Senior Advocate, appearing for someof the petitioners adopting the arguments of Shri Bhushan contends thatFwhen the exemption was granted to 133 candidates since they had clearedphysical test in pursuance of 2004 selection, the petitioners in thesepetitions should also be given the same.

9. Shri Chinmay Pratap Sharma, learned counsel, submits thatpetitioners were all subjected to physical test in pursuance of 2004Gselection and who want to take benefit which has been extended to 133candidates of not participating in the physical test.

10. Shri Amit Pawan submits that petitioners belong to same groupin 2011 selection. He submits that some of the petitioners have moremarks than 133 candidates.H

11. Shri Kundan Kumar Mishra, Shri Anand Nandan and othercounsel for the petitioners adopted the same argument.

12. Learned counsel appearing for the Commission submits thatorder dated 24.10.2018 of this Court was confined to only 133 candidatesand this Court having clearly stated that the order shall not be treated asprecedent, no other person can claim same benefit. He reiterated thatthe petitioners are the candidates who either did not appear in the physicaltest in pursuance of 2011 selection or participated and failed. Since theirnames were not included in select list of 97 which select list was preparedafter conducting the physical test and the written test.

13. We have considered the submissions of learned counsel forthe parties and have perused the record.

14. All the writ petitioners are claiming appointment to the post ofSub-Inspector in pursuance of Advertisement dated 28.06.2011 for 299posts of Sub-Inspector of Police. The Commission has categoricallypleaded that all the petitioners in this batch of writ petitions are candidateswho either did not participate in the physical test for the selection against299 posts or they participated and failed. While hearing Contempt PetitionNo.14-18 of 2018 in C.A.Nos.2806-2810 of 2017, this Court with regardto 133 candidates has made following observations: - “...After hearing the persuasive arguments of Mr. ShivamSingh, learned counsel for the respondents, we find it difficultto see any contumacious conduct on the part of therespondents. However, we feel that in the interest of justicethe dispute needs a little clarification so that there can be aquietus to the long-drawn litigation. At the paragraph 10 ofour judgment dated 14.09.2017, we made it clear that 133candidates shall also form part of the 1035 candidates referredto in the judgment at paragraph 9. The only dispute nowremains is whether those 133 candidates who had clearedthe physical efficiency test conducted in the year 2006 shouldnow be subjected to the physical efficiency test, for theimplementation of our judgment dated 14.09.2017. It is notin dispute that in respect of selection to the post of sub-inspectors commenced in the year 2004, in the case of 186candidates, they were subjected only to medical fitness test inthe process of appointment since they had already cleared AB

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the physical efficiency test in the year 2006. Mr. Shivam Singh,learned counsel submits that this was only in pursuance toorders passed by the High Court and this Court.

We do not find any justification in taking a differentstand in the case of 133 candidates who also have clearedBthe physical efficiency test in the year 2006. Therefore, at thetime of their process of appointment in the year 2017/2018,they need only to be subjected to the same test undergone by186 candidates...”

15. Further in its order dated 24.10.2018, this Court in ContemptCPetition No.1711 of 2018 in Contempt Petition(C) No.22 of 2018 inC.A.No.2805 of 2017 passed following order in paragraph 4: -

“4. Therefore, we do not find any justification to reopen the orderand permit the State and the Selection Commission to subjectthose 133 candidates to another written test and physical efficiencyDtest, which, of course, is the normal procedure. This Court havingcarved out and classified 133 candidates into a specific categoryand placed them along with 186 candidates, there cannot be anyother procedure than the medical examination. Therefore, toremove any doubt on this aspect, we make it clear that the onlyremaining process to be undergone by the 133 candidates is theEprocess to which the 186 candidates were subjected to. The Stateand the Selection Commission are directed to complete the processpositively on or before 01.11.2018 and issue the appointment orderssubject, of course, to candidates passing the medical fitness test.We make it clear that this order and all the earlier orders regardingFthe selection and appointment of the 133 candidates are passed inthe peculiar background of the litigation starting from theadvertisement in the year 2004 and several rounds of litigationsduring the past fourteen years, in exercise of our jurisdiction underArticle 142 of the Constitution of India and the same shall not betreated as a precedent.”

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16. This Court made it very clear that order of this Court regardingselection and appointment of 133 candidates are passed in peculiarbackground of litigation in exercise of jurisdiction under Article 142 andthe same shall not be treated as a Precedent.

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17. The petitioners are claiming that they should be extended thesame benefit of not being subjected to physical test as the exemptionwas granted with regard to 133 candidates. There is more than onereason for not accepting the claim of the petitioner. Firstly, there hasbeen specific order with regard to 133 candidates for not subjectingthem to the physical test and directing their appointment without physicaltest which this Court had categorically held to be not treated as Precedent.The order when specifically held that it may not be treated as Precedent,no benefit can be claimed of the said order by the writ petitioner in thepresent writ petitions especially when otherwise the writ petitioners arenot able to satisfy this Court that when they have either not undertakenthe physical test or failed in the physical test, why they should be givenappointment as Sub-Inspector of Police at this stage.

18. The Counter affidavit filed by the Commission categoricallystates that for selection against 299 posts, 2192 candidates turned up forselection and only 232 cleared the physical test. The order dated14.09.2017 of this Court passed in C.A.Nos.2795-2797 of 2017 has alsonoticed the number of the candidates who were to subjected to the processof selection for 299 posts which number was mentioned 2479 candidates.From the order dated 14.09.2017 of this Court, it is further clear that1035 candidates did not turned up for selection, this Court directed forthem also to be subjected to physical test, thus, there are large numberof candidates who did not take physical test or took the physical test andfailed. Directing for appointment of all those candidates which includesthe petitioners also who did not take the physical test or took the physicaltest and failed shall be an unending process and there are more thanthousand of such candidates who may claim that although they did nottake physical test or failed in physical test in pursuance of selection of299 posts, they should be appointed they being similarly situated to 133candidates.

19. This Court has further passed an order on 01.11.2018. It isalso relevant to notice that several candidates some of which arepetitioners before us has also filed the impleadment application inContempt Petition No.1711 of 2018 in C.A.No.2805 of 2017 whichapplication were rejected on 01.11.2018 and in order dated 01.11.2018,it had although been observed that the applicants are free to makerepresentation appealing to the good conscience of the State of Biharand the State of Bihar is free to consider the same but in event if the A

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Arepresentation are rejected, it shall not give rise to any proceeding/appealin any of the Courts. Following observations are made in this regard: - “...Mr. S.Nagamuthu, learned senior counsel, and othercounsel appearing for some of the intervenors/applicants,pray for the same relief which is granted to 133 candidates.

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The said applicants are free to make representationsappealing to the good conscience of the State of Bihar. TheState of Bihar is free to consider the same and passappropriate orders in accordance with law. In case suchrepresentations are made by the intervenors/applicants withinCone month from today, appropriate orders may be passed bythe state on those representations within three monthsthereafter. However, we make it clear that even if theirrepresentations are rejected, it will not give rise to anyproceedings/appeal in any of the Courts.”

D20. The Court thus by order dated 01.11.2018 clearly indicatedthat in event the State of Bihar does not accede to the representation ofapplicants claiming similar relief to 133 candidates that shall not give riseto any proceedings in any of the Courts. We are not persuaded to grantthe said relief in these proceedings under Article 32 of the Constitution.

E21. In view of the foregoing discussion, we are of the view thatthe petitioners are not entitled for the reliefs as claimed in the writ petitions.All the writ petitions are dismissed.

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Writ petitions dismissed.

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