COMMISSIONER OF POLICE AND ANR. versus UMESH KUMAR on 7 October 2020

1. On 27 January 2013, a notice was published in the newspapersfor filling up 523 vacancies for the post of ‘Constable (Executive) –Male’ in the Delhi Police. The break-up of vacancies indicated 262 to beunreserved, 142 for OBC candidates, 79 for Scheduled Caste candidatesand 40 for those belonging to the Scheduled Tribes. The candidatesappeared for a physical endurance and measurement test on 4 October2013. Upon qualifying at the test, the candidates were allotted roll numbersfor appearing in the written examination. Of a total of 50,422 candidates,39,597 appeared in the written examination which was held on 8 March2014. This examination was cancelled by the Delhi Police, and a freshwritten examination was held on 25 May 2014, which was cancelled aswell. Finally, a written examination was conducted on 16 November 2014,consisting of one objective - type multiple choice question paper of 100marks. After an evaluation of the OMR sheets, a list of 514 provisionallyselected candidates was declared on 13 July 2015. Nine vacancies couldnot be filled up due to the unavailability of suitable candidates in the ex- A

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Aservicemen category. The respondents were declared to be selectedunder the OBC category. During the course of scrutiny, it was foundthat a bonus mark had not been allocated to candidates whose heightwas measured at 178 centimetres or above at the time of the physicalendurance and measurement test. Candidates were entitled to an extrabonus mark under the provisions of Point No. 4 (II) of the then StandingBOrder 212 of 2011, according to which:

“A candidate whose height is 178 cms or more shall be given 01bonus mark, to be added in the total marks while determining themerit list.”

CAccordingly, the result was recompiled after allocating one bonusmark to all the candidates with a height of at least 178 centimetres anda final revised result was declared on 17 July 2015. 512 candidates wereselected while the remaining 11 vacancies were not filled up due to theunavailability of candidates from the ex- servicemen category. In theresult which was declared on 17 July 2015, 32 new candidates cameDwithin the selection zone and 34 candidates were ousted.

2. The respondents to the present Civil Appeals were declared asselected from the OBC category in the revised result as well. The minimumqualifying marks for the OBC category were 71.29004295. UmeshKumar, the respondent in the first of the two appeals secured 74.16991306Emarks. Satyendra Singh, the respondent in the companion appeal secured71.49891738 marks. In the note attached to the final list declared on 17July 2015, all candidates were directed to report to the DCP –Recruitment Cell, New Police Lines, Kingsway Camp, Delhi for further“codal formalities” between 27 July 2015 and 31 July 2015. Candidateswere distributed on these dates in accordance with their roll numbers:F

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3. All the selected candidates were issued the prescribed forms soas to expedite the process of recruitment. The object appears to havebeen that during the commencement of batches for basic training, thecandidates should have all documents complete, to facilitate the issuanceof offers of appointment. The documents which were issued to candidateswere:

“a. Attestation Form for Police Verification (F-36).

b. Medical Form (F-37) for medical examination.

c. Agreement Form (F-81) i.e. regarding depositing of capitationcharges in case he / she left service before 5 years after joiningDelhi Police.

d. Certificate of Character (F-82).

e. Undertaking (F-83).”

4. All candidates were directed to submit the attestation form(F-36) for police verification and a medical form (F-37) for conducting amedical examination in accordance with Rules 24 and 25 of the DelhiPolice (Appointment and Recruitment) Rules, 1980. On receipt of asatisfactory police verification and medical report, candidates were tobe issued a communication directing them to report at the RecruitmentCell- NPL, together with original documents. The following forms hadto be submitted before the issuance of an offer of appointment:

“a. Agreement Form (F-81) i.e. regarding depositing of capitationcharges in case he/ she left service before 5 years after joiningDelhi Police.

b. Certificate of Character (F-82).

c. Undertaking (F-83).”

5. The respondents submitted Form F-36 for verification ofcharacter and antecedents, and Form F-37 for medical examination on28 July 2015. Both of them were examined by the medical board andwere declared to be medically fit. The verification of character andantecedents was also received. In the case of Umesh Kumar, the medicalexamination was conducted by the Medical Board at Rao Tula RamMemorial Hospital, GNCT of Delhi on 20 August 2015, while theverification of character and antecedents was conducted by HaryanaPolice on 23 August 2015 and was received by the Recruitment Cell on A

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A8 September 2015. In the case of Satyendra Singh, the medicalexamination was conducted on 27 August 2015 by the Medical Board atGuru Gobind Singh Government Hospital, Raghubir Nagar, New Delhiwhile the verification of character and antecedents was conducted bythe SSP, Alwar, Rajasthan and was received by the Delhi Police througha letter dated 25 August 2015.B

6. In the ordinary course, both the respondents would likely havebeen appointed as Constables in Delhi Police. However, on 29 September2015, some other candidates approached the Central AdministrativeTribunal[1] in O.A. No. 3657 of 2015[2] and O.A. No. 4258 of 2015[3]. Theapplicants before the Tribunal challenged the answer keys in the writtenCexamination and claimed that they had not obtained marks for correctanswers for question Nos. 17, 55, 56, 71, 75, 79, 86 and 90 of questionbooklet series ‘C’ as well as for the same questions of booklet series‘A’, ‘B’ and ‘D’ with different sequence numbers. The CompetentAuthority in Delhi Police appointed an Expert Committee to examine allDthe issues and to submit its report after making “a master answercompendium and resultant answer key”. In the meantime, the recruitmentprocess for the joining of selected candidates in pursuance of the resultdated 17 July 2015 was kept in abeyance and no offers for appointmentwere issued. The Expert Committee which was constituted on 20November 2015 submitted its report on 26 December 2015. TheEgrievances which were raised in OAs were examined and it was foundthat there were typographical errors in the answer keys. The Tribunaldisposed of the OAs by a judgment dated 8 January 2016, with thefollowing directions:

“ …in view of the statements made by the respondents that furtherFaction regarding the recruitment process will be taken as per therecommendations of the Expert Committee, and that till date nocandidate has been given appointment for the post in question,and, considering the vagueness of the statements made by therespondents, we deem it just and proper to direct the respondentsGto ensure submission of the report by the said Expert Committeewithin one month from today, if such report has not yet beensubmitted by the Expert Committee, and to take further necessary H

1 “the Tribunal”

2 Ankit Kumar & others vs. Commissioner of Police, Delhi & others 3 Anuj Kumar vs. Commissioner of Police, Delhi & others action regarding the recruitment process within two months fromtoday. Ordered accordingly.”

Upon receipt of the report of the Expert Committee, the followingdecisions were taken on 1 February 2016 by the recruitment authority:

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i.14 questions declared “Null/Void” for the reasons like noneof the given options being correct. Questions having morethan one possible answers, mis-match in the meaning ofEnglish & Hindi versions etc.

ii.In all the 21 questions (12 for General Knowledge sectionand 07 of Reasoning ability section and 02 of Numericalability section) including 7 questions (3 for GeneralKnowledge section and 3 of Reasoning ability section and1 of Numerical ability section), which were declared voidearlier, full marks be given to all candidates in such amanner that all candidates were given marks as per scalingmethod for the respective number of Questions from eachcategory.

iii.The options of answer of Q. No.6 & 10 (Booklet Series‘A’) may be changed/modified from (B) to (D) & from(A) to (B) respectively as well as options of the samequestions of other Booklet Series (B, C & D) havingdifferent sequence number may also be changed accordingly.

iv.The option of answer of only Q.No.67 (Booklet Series- A)may be changed/modified from (B) to (D) as the option ofanswer of the same question of other Booklet Series (B),(C) and (D) is correct.”

7. Resultantly, the entire result was revised. The final result afterre-evaluation of all OMR sheets was declared on 22 February 2016. 518candidates were declared to be provisionally selected subject to “codalformalities”, such as the satisfactory verification of character andantecedents, medical examination and final verification of documents.Five vacancies could not be filled up due to the unavailability of suitablecandidates from the ex-servicemen category. In the final result whichwas declared on 22 February 2016, 129 new candidates came into theselection zone and 123 candidates who had been declared selected earlier A

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Ain the result of 17 July 2015 were ousted. The cut-off for the OBC categoryafter re-evaluation of results was 79.49134163 marks. The marks whichwere secured by the two respondents in the revised results of 22 February2016 were as follows:

• Umesh Kumar : 77.51406888

B• Satyendra Singh : 77.27164463

8. The newly selected candidates from the result declared on 22February 2016 were called for the completion of “codal formalities”.Police verification and medical fitness was carried out and the candidateswho successfully completed this process were required to report to theCrecruitment cell at New Police Lines, Kingsway Camp, Delhi with originalattested copies of documents to collect their offers of appointment. Exceptfor candidates with an adverse background, all selected candidates wereissued offers of appointment and joined the basic training programme forConstables in Delhi Police with effect from 4 April 2016.D

9. After the declaration of the result on 22 February 2016, somecandidates challenged the process before the Tribunal in O.A. No. 969of 2016[4] and O.A. No. 1244 of 20165 in March 2016. The Tribunaldismissed the OAs on 5 May 2016, and the Review Petitions weresubsequently dismissed on 1 June 2016. Following this, writ petitions underEArticle 226 of the Constitution – W.P. (C) No. 7411 of 20166 and W.P.(C) No. 7624 of 20167 – challenging the judgments of the Tribunal werealso dismissed as not pressed by the Delhi High Court on 7 September2016.

10. On 21 March 2016, the respondents filed O.A. No. 1146 ofF2016 challenging their non-selection in the revised result declared on22 February 2016 before the Tribunal. The OA was dismissed on15 September 2017. Umesh Kumar then filed a writ petition under Article226 – Writ Petition (C) No.10143 of 2017 – in the Delhi High Courtwhich was allowed by a judgment dated 6 December 2018. Followingits decision in the case of Umesh Kumar, the Delhi High Court alsoGallowed the writ petition instituted by Satyendra Singh – Writ Petition(C) No.13052 of 2018 – by its judgment dated 19 December 2018. The 4 Sandeep Kumar & Ors. vs C.P. Delhi & Anr.

5 Bijendere Kumar & Ors. vs. C.P. Delhi & Anr.

6 Sandeep Kumar & Ors. vs. Delhi Police & Anr.

H7 Bijender Kumar & Ors. vs. Delhi Police & Anr.

COMMISSIONER OF POLICE AND ANR. v. UMESH KUMAR[DR. DHANANJAYA Y CHANDRACHUD, J.]

ultimate directions that have been issued by the Delhi High Court in thefirst of the two writ petitions are in the following terms:

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“For the aforesaid reasons, we find no merits in the submissionsof Mr. Satyakam, learned counsel for the respondents. The petitionis accordingly allowed and we direct the respondents to appointthe petitioner to the post of Constable (Executive), Delhi Police.He shall be deemed to have been appointed from the date ofappointment with his other batch mates and his seniority shall bedetermined accordingly, on notional basis. However, he shall notbe entitled to any arrears of pay and allowances. Compliance bemade within next four weeks.”

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The companion writ petition has been allowed in similar terms.

11. Ms Madhavi Divan, learned Additional Solicitor General hasassailed the correctness of the judgment of the Delhi High Court. Thelearned ASG submitted that:

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(i) The process of re-evaluation of the first result was necessitatedfollowing the receipt of complaints and the filing of OAsbefore the Tribunal;

(ii) An Expert Committee was constituted by the competentauthority of Delhi Police and upon due enquiry. The reportestablished irregularities in the preparation of the answerEkey and the allocation of marks;

(iii) Following the report of the Expert Committee a fresh revisedlist was drawn up and both the respondents secured marksbelow the cut-off for the OBC category; F

(iv) As many as 228 candidates are ranked higher than therespondent Umesh Kumar, while 265 candidates are rankedhigher than the respondent Satyendra Singh;

(v) The mere fact that all candidates, including the respondents,who had been successful in the first result declared on 17July 2015 have been furnished with requisite documentsincluding the agreement form did not confer a vested rightto appointment; G

(vi) The revision of result has taken place in accordance withdue process by applying the same yardstick to all candidates.

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592SUPREME COURT REPORTS

AAdmittedly, the respondents have thereafter failed to securemarks above the cut-off for the OBC category;

(vii) The judgement of the Delhi High Court is contrary to thelaw laid down by a two judge Bench of this Court in RajeshKumar vs State of Bihar[8]; andB(viii)A grievance of respondent Umesh Kumar that he hadresigned from the Railway Protection Force[9] was no groundfor the Delhi High Court to direct the appellants, by a writof mandamus, to issue an appointment. The respondent, interms of Rule 275 of the RPF Rules, 1987, could have soughtCre-instatement in service which he failed to do.12. On the other hand Mr Salman Khurshid, learned Senior Counselappearing on behalf of the respondents submitted that:

(i) Neither of the two candidates in question has been at fault; D(ii)Both the respondents participated in the selection processand were declared to have been successful in the first resultdeclared on 17 July 2015;

(iii) Though, as a consequence of the revision of the result, therespondents stand ousted, grave prejudice has been causedto them;E

(iv) By furnishing documents to the respondents including theagreement form, a representation was held out to them bythe appellants of their eligibility to join Delhi Police and oftheir selection to the post; and F(v)There may be other candidates higher than the respondentsin merit in the revised result, but none of them has approachedthis Court under Article 136 of the Constitution or the HighCourt under Article 226. Hence, the ultimate direction thatwas issued by the High Court should not be disturbed.

G13. This judgment has adverted to the course which the recruitmentprocess followed since the publication of an advertisement for selectionto the 2013 batch of Constables (Executive) – Male in Delhi Police. Thenarration of facts demonstrates that a result notifying a list of provisionally 8 (2013) 4 SCC 690H9 RFP

selected candidates was initially declared on 13 July 2015 but it wassoon found that an error had crept in due to the failure to allocate abonus mark to every candidate whose height was in excess of 178centimetres. The allotment of bonus marks was provided in StandingOrder No. 212 of 2011, which necessitated a revision of the results. Inthe revised result, which was declared on 17 July 2015, certain candidatesfrom the original list were ousted while new candidates came in. Boththe respondents were part of the list of successful candidates. Yet, therecan be no dispute about the factual position that the recruitment processwas yet to be concluded. For one thing, the process of verification ofcharacter and antecedents and the ascertaining of medical fitness wasyet to be carried out. But apart from this, a set of OAs came to beinstituted by unsuccessful candidates before the Tribunal highlightinggrievances in regard to the manner in which the answer key had beenprepared. The authorities agreed before the Tribunal to appoint an ExpertCommittee. Following the submission of the report of the ExpertCommittee, the results were revised on 22 February 2016. After a decisionwas taken by the Competent Authority for revising the result, as many as123 candidates who had been selected earlier were ousted and 129 newcandidates came into the selected list. This process of revising the resultswas carried out when the recruitment process was yet to be completedfor the candidates selected in the result declared on 17 July 2015. Thisprocess of the revision of the result was then unsuccessfully challengedin the first batch of OAs before the Tribunal, and subsequently the writpetitions under Article 226 before the High Court were also dismissed asnot pressed. The flip-flops which took place were undoubtedly becauseof the failure of the authorities to notice initially the norm of allotting 1bonus mark based on height and due to the failure to prepare a properanswer key. Such irregularities have become a bane of the public recruitmentprocess at various levels resulting in litigation across the country beforethe Tribunals, the High Courts and ultimately this Court as well. Much ofthe litigation and delay in carrying out public recruitment would be obviatedif those entrusted with the duty to do so carry it out with a sense ofdiligence and responsibility.

14. The real issue, however, is whether the respondents wereentitled to a writ of mandamus. This would depend on whether theyhave a vested right of appointment. Clearly the answer to this must be inthe negative. In Punjab SEB vs. Malkiat Singh[10], this Court held that10 (2005) 9 SCC 22

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Athe mere inclusion of candidate in a selection list does not confer uponthem a vested right to appointment. The Court held:

“4. …the High Court committed an error in proceeding on thebasis that the respondent had got a vested right for appointmentand that could not have been taken away by the subsequent changeBin the policy. It is settled law that mere inclusion of name of acandidate in the select list does not confer on such candidate anyvested right to get an order of appointment. This position is madeclear in para 7 of the Constitution Bench judgment of this Court inShankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991SCC (L&S) 800 : (1991) 17 ATC 95] which reads: (SCC pp. 50-C51)

“7. It is not correct to say that if a number of vacancies arenotified for appointment and adequate number of candidatesare found fit, the successful candidates acquire an indefeasibleright to be appointed which cannot be legitimately denied.Ordinarily the notification merely amounts to an invitation toqualified candidates to apply for recruitment and on their selectionthey do not acquire any right to the post. Unless the relevantrecruitment rules so indicate, the State is under no legal duty to fillup all or any of the vacancies. However, it does not mean that theState has the licence of acting in an arbitrary manner. The decision D

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not to fill up the vacancies has to be taken bona fide for appropriatereasons. And if the vacancies or any of them are filled up, theState is bound to respect the comparative merit of the candidates,as reflected at the recruitment test, and no discrimination can bepermitted. This correct position has been consistently followed byFthis Court, and we do not find any discordant note in the decisionsin State of Haryana v. Subash Chander Marwaha [(1974) 3SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , NeelimaShangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC(L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] .”

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(emphasis supplied)”

In the present case, after the name of respondents appeared inthe results declared on 17 July 2015, the process of recruitment was putin abeyance since the results were challenged before the Tribunal. Theprocess of revising the results during the course of the recruitment wasHnecessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings beforethe Tribunal. The report of the Expert Committee established errors inthe answer key, and thereafter a conscious decision was taken, afterevaluating the report, to revise the results on 1 February 2016. In thefresh list which was drawn up, both the respondents have admittedlyfailed to fulfil the cut-off for the OBC category to which they belong. Asthe learned ASG submitted before the Court, as many as 228 candidatesare ranked above Umesh Kumar on merit while 265 candidates standabove Satyendra Singh. The submission of Mr Khurshid that these arethe only two candidates before this Court would not entitle them to adirection contrary to law since they had no vested right to appointment.

15. In regard to respondent Umesh Kumar, it is also brought toour attention that he resigned from the RPF on 16 August 2015 and hisresignation was accepted on 25 August 2015. Evidently, the respondenttendered his resignation without any justification when the recruitmentprocess had not been concluded and even before an offer of appointmentwas made to him. In any event, it would have been open to him seek re-enlistment in the RPF at the material time which he chose to not do.

16. In Rajesh Kumar (supra), Justice TS Thakur, as the learnedChief Justice of India then was, dealt with a case where the model answerkey, and hence the process of evaluation of answer scripts by the BiharStaff Selection Commission, had been found to be flawed. The Courtheld:

“15.The writ petitioners, it is evident, on a plain reading of the writpetition questioned not only the process of evaluation of the answerscripts by the Commission but specifically averred that the “modelanswer key” which formed the basis for such evaluation waserroneous. One of the questions that, therefore, fell for considerationby the High Court directly was whether the “model answer key”was correct. The High Court had aptly referred that question toexperts in the field who, as already noticed above, found the “modelanswer key” to be erroneous in regard to as many as 45 questionsout of a total of 100 questions contained in ‘A’ series questionpaper. Other errors were also found to which we have referredearlier. If the key which was used for evaluating the answer sheetswas itself defective the result prepared on the basis of the samecould be no different. The Division Bench of the High Court was,therefore, perfectly justified in holding that the result of the AB

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Aexamination insofar as the same pertained to ‘A’ series questionpaper was vitiated. This was bound to affect the result of the entireexamination qua every candidate whether or not he was a partyto the proceedings. It also goes without saying that if the resultwas vitiated by the application of a wrong key, any appointmentmade on the basis thereof would also be rendered unsustainable.BThe High Court was, in that view, entitled to mould the relief prayedfor in the writ petition and issue directions considered necessarynot only to maintain the purity of the selection process but also toensure that no candidate earned an undeserved advantage overothers by application of an erroneous key.”CIn Rajesh Kumar (supra), the Court then refused the oust thoseindividuals from service who did not make the grade after re-valuation ofthe result since they had been in service for nearly seven years. However,in the present case, as we have discussed above, the revised result wasdeclared even before offers of appointment were made to the respondentsDsince the entire process of recruitment had been put in abeyance.

17. For the above reasons, we are of the view that the judgementsdelivered by the Delhi High Court on 6 December 2018 in Writ Petition(C) No. 10143 of 2017 and on 19 December 2018 in Writ Petition (C)No. 13052 of 2018 do not comport with law. The High Court has beenEmanifestly in error in issuing a mandamus to the appellants to appoint therespondents on the post of Constable (Executive) in Delhi Police. Thedirection was clearly contrary to law. The respondents have participatedin the selection process and upon the declaration of the revised result, it hasemerged before the Court that they have failed to obtain marks abovethe cut-off for the OBC category to which they belong. We accordinglyFallow the appeals and set aside the judgments of the High Court dated 6December 2018 in Writ Petition (Civil) No.10143 of 2017 and 19December 2018 in Writ Petition (Civil) No.13052 of 2018. Both the WritPetitions shall stand dismissed. There shall, however, be no order as tocosts.G18. Pending application(s), if any, shall stand dismissed.

Ankit Gyan

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