NAYAK PNO NO.980510777 RAJ BAHADUR & ORS. versus STATE OF UTTAR PRADESH & ORS. on 9 May 2019

SUPREME COURT REPORTS

[2019] 7 S.C.R.

ALANCE NAYAK PNO NO.980510777 RAJ BAHADUR & ORS.

v.

STATE OF UTTAR PRADESH & ORS.

(Civil Appeal No. 4837 of 2019)

MAY 09, 2019

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[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Service Law – Appellants belonging to Scheduled Castecategory were posted as Constables/Head Constables in the PoliceDepartment of Uttar Pradesh – They appeared in the limitedCdepartmental examination held for filling up the posts of Sub-Inspector (Civil Police) – Conduct of examination was to begoverned by 2008 Rules – Candidates were required to appear inthe written examination carrying 300 marks–Written examinationcomprised of four subjects (2 papers of 100 marks and 2 of 50marks each) and the candidate who failed to obtain minimum 50Dmarks in each subject would not be eligible for promotion – Inchallenge to the examination on the ground that 18 questions wereset in erroneous manner, Single Judge directed the authorities toaward full marks to every candidate in respect of those 18 questions–Order stayed by the Division Bench – Supreme Court issued certainEdirections – Select list was published thereafter – In another SLP,Supreme Court vide order dtd. 10.08.15 directed that no court shallentertain any grievance relating to this particular selection – Writpetition filed by the appellants submitting inter alia that whileconsidering 50 per cent cut off marks, criteria must be “paper”wise and not “subject” wise– In view of the order of Supreme CourtFdtd. 10.08.15, the High Court dismissed the writ petition – Plea ofthe appellants that subject nos.3 & 4 of 50 marks each are part ofthe same paper and the appellants have secured 54% in the paperthough may not have secured 50% in subject nos.3 & 4, thus on thestrenght of the aggregate from all the subjects, they would be entitledGto be promoted – Held: Fact that the appellants had not obtained50 per cent marks in each of the subjects is accepted – Presentmatters concern limited Departmental examination where the ideais, regardless of seniority levels, a meritorious candidate be givenchance to reach higher levels – Merit is therefore the key elementand there can be no compromise and dilution of the criteria – What H

is required in terms of the Rules is minimum of 50 per cent marks“in each subject” – Subjects are delineated in the Rules and thereare four subjects – Irrespective whether subjects 3 and 4 form partof the same paper, the express language of the Rules does not permitany such interpretation and the construction as suggested by theappellants cannot be accepted – Uttar Pradesh Sub-Inspector andInspector (Civil Police) Service Rules, 2008 – r.16.

Disposing of the matters, the Court

HELD : CIVIL APPEAL NO. 4837 OF 2019

1.1 The fact that the appellants had not obtained 50 percent marks in each of the subjects is accepted. In these matterswith limited Departmental examination where the idea is,regardless of seniority levels, a meritorious candidate be givenchance to reach higher levels. Merit is therefore the key elementand there can be no compromise and dilution of the criteria. Whatis required in terms of the Uttar Pradesh Sub-Inspector andInspector (Civil Police) Service Rules, 2008 is minimum of 50per cent marks “in each subject”. The subjects are delineated inthe Rules and there are four subjects. Irrespective whethersubjects 3 and 4 form part of the same paper, the express languageof the Rules does not permit any such interpretation and theconstruction suggested by the appellants cannot be accepted.The reliance placed on the order passed by Supreme Court inWrit Petition (c) No. 45 of 2016 is also completely misplaced.The order by itself did not decide any controversy and as a matterof fact it was observed that the order would not automaticallyoperate as a precedent for other cases. Therefore, the submissionis rejected. [Paras 12-15] [877-D-H; 878-A]

CIVIL APPEAL NOs.4838-4839 OF 2019; CIVIL APPEALNos.4840-4842 OF 2019; CIVIL APPEAL NO.4845 OF 2019

1.2 The issues involved in the matters being identical tothe earlier matter where similar contentions were raised, noreason to interfere. [Para 18] [878-D]

CIVIL APPEAL NO.4844 OF 2019; CIVIL APPEALNO.4846 OF 2019; CIVIL APPEAL Nos. 4843 OF 2019

1.3 The criteria under the Rules is minimum of 50 per centmarks in each of the subjects. It was open to the State to have AB

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Aprescribed a relaxed or a different criterion for the reservedcategories candidates. However, no such relaxation was grantedby the State and consequently no relief can be granted by theCourt. In terms of the Rules, as they stand, the criteria of minimumof 50 per cent marks has to be met. Since the appellants do notfulfil the criteria, no exception can be made. [Para 22] [879-A-B]B

1.4 It is now submitted that the grievance raised by theapplicants in the Writ Petition was in respect of selection throughlimited departmental examination for promotion to the post ofCUP Sub-Inspector (Civil Police) Rankers Examination and wasnot by way of direct recruitment and that the matter was wronglyclubbed with Civil Appeal No.11370 of 2018. The Judgment andorder dated 27.11.2018 is recalled to the extent it disposed ofTransfer Case (Civil) No.287 of 2017. The principal prayer in thewrit petition is to the effect that the respondent be directed toDgive reservation and relaxation to the writ petitioners as SC/STcandidates. The submission in that behalf has already beenconsidered in the matters dealt with above. No reason to interferein the matter. Transferred Case No.287 of 2017, therefore,dismissed. [Paras 25, 26] [879-E-G]

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1.5 It is now submitted that the grievance raised by theapplicants in the Writ Petition was in respect of selection throughlimited departmental examination for promotion to the post ofUP Sub-Inspector (Civil Police) Rankers Examination and wasFnot by way of direct recruitment and that the matter was wronglyclubbed with Civil Appeal No.11370 of 2018. We, therefore, recallthe aforesaid Judgment and order dated 27.11.2018 to theextent it disposed of Transfer Case (Civil) No.297 of 2017.[Paras 27-29] [879-E-F]

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G1.6 The principal prayer in the writ petition is to the effectthat the respondent be directed to give reservation and relaxationto the writ petitioners as SC/ST candidates. The submission inthat behalf has already been considered in the matters dealt withabove. No reason to interfere in the matter. Transferred CaseNo.297 of 2017, therefore, stands dismissed. [Para 30][879-F-G]H

Qamar Hasan Khan & others v. State of U.P. & Ors.Decision of Supreme Court dated 10.08.2015 inSLP(C) No. 25377-78 of 2014 ; Alok Kumar Singh andothers v. State of U.P. and others 2018 (15) SCALE189 – referred to.

Case Law Reference

2018 (15) SCALE 189referred toPara 23

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4837of 2019.

From the Judgment and Order dated 20.04.2018 of the High Courtof Judicature at Allahabad in Writ-A No. 10308 of 2018.

With

Civil Appeal Nos. 4838, 4839, 4840-4842, 4844, 4845, 4843 and4846 of 2019

M.A. No 643 of 2019 in T.C. (C) No. 297 of 2017

M.A. No. 732 of 2019 in T.C. (C) No. 287 of 2017.

Pallav Shishodia, Ms. Vibha Dutta Makhija, Sr. Advs., PawanKumar Shukla, Pankaj Kr. Singh, Vivek Vishnoi, Maninder Dubey,Makrand Pratap Singh, Raj Singh Rana, Pankaj Kumar Singh MukeshVerma, Anupam Dwivedi, Kamal Kumar Pandey, Yash Pal Dhingra, P.N. Puri, Abhishek Puri, M. Reeta Dewan Puri, J. S. Marahatta, ManojGorkela, Arpit Bisht, M/s. Gorkela Law Office, Ram Anugrah Singh,Rabin Majumder, Mrs. Swarupama Chaturvedi, Pramod Kr. Singh, Advs.for the Counsel for the parties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

CIVIL APPEAL NO.4837 OF 2019

(Arising out of SLP(C) No.15699 of 2018)

1. Leave granted.

2. This appeal challenges the correctness of the final judgmentand order dated 20.04.2018 passed by the High Court of Judicature atAllahabad in Writ appeal No.10308 of 2018. This appeal was takenas the lead matter.

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A3. The appellants belong to Scheduled Caste category and areposted as Constables/Head Constables in the Police Department ofUttar Pradesh. They appeared in the limited departmental examinationheld for filling up the posts of Sub-Inspector (Civil Police), pursuant toan advertisement issued by UP Police Recruitment and PromotionBoard on 12.06.2010 for filling up 5389 posts. The conduct ofBexamination was to be governed by Uttar Pradesh Sub-Inspector andInspector (Civil Police) Service Rules, 2008. Said Rule 16 is to thefollowing effect:

“16. Procedure for recruitment by promotion to the post ofSub-Inspector – For the purpose of recruitment by promotionon the basis of departmental examination to the post of SubInspector, the Board shall conduct a written examination inthe following manner:

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(a) Written Examination - (I) The eligible candidates 3 shall berequired to appear in the written examination which shallcarry 300 marks. The details of the subjects included in thewritten examination and the marks shall allotted for eachsubjects are as follows:

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S.No.SubjectMaximum marks 1Hindi Essay (based on Law and 100 marksOrder case study and police functioning)2Basic Law, Constitution and Police 100 marks Procedure (Indian Penal Code, (objective Criminal Procedure Code, Evidence type) Act and Police Manual etc.) 3 Numerical and Mental Ability Test 50 marks (objective type) 4 Mental Aptitude Test/I.Q. 50marks Test/Reasoning (objective type)

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Note- The question papers shall be set up keeping in mind the jobprofile of the post of Sub-Inspector and commensurate with thejob responsibility.

Note 2- The candidates who fail to obtain minimum fifty percentmarks in each subject shall not be eligible for promotion.

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(ii) The Selection Committee shall, have regard to the provision ofreservation referred to in Rule 6, prepare a list of successfulcandidates on the basis of marks obtained by them in the writtenexamination under sub-clause (I) of Clause (a).

(b) Physical Efficiency Test – The candidates selected under clause(a) shall be required to appear in a Physical Efficiency Test ofqualifying nature. The male candidates shall be required tocomplete a run of 10 kilometers in 75 minutes and femalecandidates a run of 5 kilometers in 45 minutes.

(c) Service Records – marks on the basis of Service Recordsshall be awarded to each candidate selected under sub-clause (ii)of clause (a). the maximum marks for the length of service shallbe 20(01 marks for each year), for the educational qualificationof Graduation and above degree 10 marks. Training Course 30marks out of which 10 marks, Training Course 30 marks out ofwhich 10 marks each for every substantive training subject to amaximum of 20 and 02 marks each for every non-substantivetraining subject to a maximum of 10 marks and 30 marks forannual entry. For every medal of National leave 03 marks, everymedal of state level 02 marks subject to maximum of 10 marksand no marks will be given for cash reward. Thus, there shall bemaximum 100 marks as above. The Training Director of Policeorganization is authorised to 4 notify any training as substantiveand non-substantive subject to the condition that no training whichis less than one month’s during shall be notified as substantivetraining. For every major punishment 30 marks, for every minorpunishment 02 marks and for every adverse entry, petty punishment01 marks shall be deducted. The Service Records shall also beexamined keeping in view whether the candidate has been awardedsome kind of punishment which renders him unsustainable forpromotion. Any candidate whose integrity was withheld ever withinthe last five years shall not be eligible for promotion.

(d) Subject to the provision of clauses (a) and (c)- The marksobtained by each candidate shall sub-clause (ii) of clause (a) shallbe added to marks obtained by him under sub-rule (v). the SelectionCommittee shall prepare a list of candidates on the basis ofaggregate of marks so arrived.

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(e) Group discussion – The candidates selected under the rule17(a) shall be required to appear in a Group Discussion for whichseparate groups of then candidates each shall be formed. Theprocess of Group discussion shall be carried out under thesupervision of a panel comprising Managing Expert, Psychologistand Criminologist in the presence of Chairman of the Board of hisnominee, one Additional Director General Police nominated byDirector General of Police, (Uttar Pradesh) or Inspector Generalof Police/Deputy Inspector General of Police nominated by him.In the said Group Discussion, Police case study shall be presentedfor discussion and the entire Group discussion shall be completedwithin the stipulated timeframe. The group discussion shall carry20 marks and it will include the evaluation of candidatesManagement Skill (5 marks), Presentation (5 marks), Attitude (5marks) and Personality (5-marks). The marks shall also beuploaded in the Board website.

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Note-1 The entire process of Group Discussion shall be videographed and a Compact Form thereof shall be prepared.

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Note 2-Nomination of officers for giving representation to theScheduled Castes, Scheduled Tribes and Other Backward Classesof Citizens in the Selection Committee shall be made in accordancewith Section 7 of the Act, as amended from time to time.

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(f) Election and merit list – The Board shall, having regard to theprovisions of reservation referred in Rule 6, prepare a final selectlist of candidates in order or merit as disclosed by aggregate ofmarks obtained by them under sub-clause (d) and sub-clause (e)if two or more 5 candidates obtain equal marks, the candidateobtaining higher marks under rule-rule(c) shall be placed higher inthe list. The selection committee shall forward the list of the Boardwhich shall forward it to the Head of the Department.”

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4. The candidates were thus required to appear in the writtenGexamination which was to carry 300 marks. The written examinationcomprised of four subjects as enumerated in Rule 16(a)(i) and thecandidate who failed to obtain minimum 50 marks in each subject wouldnot be eligible for promotion.

5. It appears that 18 questions in the written examination werefound to be set in an erroneous manner which mistake was accepted bythe Department in a challenge raised in Writ Petition (Service Single)No.3918 of 2011 (Aarakshi Vimal Kumar Singh and others v. State ofU.P. and others) before the High Court of Judicature at Allahabad,Lucknow Bench. The Single Judge by his order dated 03.08.2011directed the authorities to award full marks to every candidate in respectof those 18 questions. The order passed by the Single Judge was stayedby the Division Bench in Special Appeal arising therefrom. The matterfinally reached this Court and by an order dated 18.07.2014 followingdirections were issued by this Court in Civil Appeal No.6547 of 2014:

“Having heard learned counsel for the parties, we are of theconvinced opinion, the controversy should be put to rest from allspectrums and accordingly we issue the following directions:- (a) The posts that have been filled up by successful candidates,as has been apprised to us at the Bar, are 3358 and the candidateswho have joined in the said posts and presently working shall notbe disturbed.

(b) The U.P. Police Recruitment & Promotion Board, Lucknowshall scrutinise the papers of all the candidates, namely, the personswho had approached the writ court and the candidates who hadnot approached the writ court and if they have attempted andanswered the 18 questions, which were wrongly set out, they willbe awarded full marks for said 18 questions.

(c) If a candidate has not answered any erroneous question, thesame shall be proportionately reduced. To clarify, the candidateshall only get full marks for the questions answered.

(d) A fresh select list shall be drawn up taking into account theaforesaid marks in respect of 2031 posts which are available inpresent pertaining to the year 2008.

(e) The aforesaid exercise shall complete within a period of threemonths hence and the successful candidates shall be duly intimatedand subsequent action shall be taken by the State.

By virtue of our order, any matter pending in the Writ Court orbefore the Division Bench shall be deemed to have been disposedof.”

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A6. The select list was thereafter published on 27.11.2014.7. In SLP(C) No.25377-78 of 2014 (Qamar Hasan Khan & othersv. State of U.P. & Ors.) an order was passed on 10.08.2015 by thisCourt as under:

“It is hereby made clear that no court shall entertain any grievanceBrelating to this particular selection. Our present order would notdislodge, if any candidate, who has already been selected or sentfor training. Needless to emphasize, the present order has beenpassed regard being had to the special features of the case.”

8. In April 2018 a writ petition being Writ A-No.10308 of 2018Cwas preferred by the appellants submitting inter alia that the selectionprocess was undertaken without applying Reservation Policy and thatwhile considering 50 per cent cut off marks criteria must be “paper”wise and not “subject” wise.

9. In view of the order passed by this Court on 10.08.2015 inD(Qamar Hasan Khan & others v. State of U.P. & Ors.) the High Courtrefused to entertain the writ petition and dismissed the same by its orderdated 20.04.2018, which order is now under challenge.

10. When the matters were taken up on 15.04.2019 Mr. PallavShishodia, learned Senior Advocate appearing for the appellants reliedEupon Order dated 30.01.2017 passed by this Court in Writ Petition (C)No.45 of 2016 whereunder the concerned petitioners having securedmore than cut off marks were directed to be sent for training. It wassubmitted that similar benefits be given to the appellants. Submissionsadvanced by Mr. Pallav Shishodia, learned Senior Advocate were notedin the order dated 15.04.2019 as under:F

“According to the Rule, the eligible candidates are to appearin the written examination which is to carry 300 marks and thedetails of the subjects are given in Rule 16(A). The subjects sospecified are 1 to 4 (subjects 3 & 4 carry 50 marks each).

According to the petition, the requirement to secure 50%marks is not to be reckoned subject-wise but ought to reckonpaper-wise. And since there is common paper for subjects 3&4,the minimum marks which ought to be insisted upon must be interms of the entire paper and not per subject i.e., subjects 3&4.

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Mr. Shishodia submits that his clients have secured 54% in thepaper though the clients may not have secured 50% minimum insubjects 3&4.

According to Mr. Shishodia, if this submission is accepted,the petitioners would be entitled to the benefit of Order dated30.01.2017 passed by this Court as the aggregate marks securedby them are more than 50%.”

11. The stand of the State Government is:

(a) That the candidates were awarded full marks in the mannerprescribed by this Court; (b) That even then, none of the appellants in all these matterswere fulfilling the criteria of having obtained 50 per cent marks in all thesubjects;

12. The fact that the appellants had not obtained 50 per cent marksin each of the subjects is accepted and what is submitted by the appellantsis that Subject Nos.3 and 4, namely, “Numerical and Mental Ability Test”and “Mental Aptitude Test/I.Q, Test/Reasoning” carrying 50 marks each,were part of the same paper. The further submission is that on the strengthof the aggregate from all the subjects, the appellants would be entitled tobe promoted.

13. We have given anxious consideration to the submissions asadvanced. We are concerned in these matters with limited Departmentalexamination where the idea is, regardless of seniority levels, a meritoriouscandidate be given chance to reach higher levels. Merit is therefore thekey element and there can be no compromise and dilution of the criteria.What is required in terms of the Rules is minimum of 50 per cent marks“in each subject”. The subjects are delineated in the Rules and thereare four subjects. Irrespective whether subjects 3 and 4 form part ofthe same paper, the express language of the Rules does not permit anysuch interpretation and the construction suggested by Mr. Shishodiacannot be accepted.

14. The reliance placed on the order dated 30.01.2007 is alsocompletely misplaced. The order by itself did not decide any controversyand as a matter of fact it was observed that the order would notautomatically operate as a precedent for other cases.

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[2019] 7 S.C.R.

A15. We, therefore, reject the submission and dismiss the appeal.No costs.

CIVIL APPEAL Nos. 4838 and 4839 OF 2019

(Arising out of SLP(C) No.10674 and 10675 of 2018)

BCIVIL APPEAL Nos.4840-4842 OF 2019

(Arising out of SLP(C) No.12891-12893 of 2018)

and

CIVIL APPEAL NO.4845 OF 2019

C(Arising out of SLP(C) No.12248 of 2019)

[D.No.42625 of 2018]

16. Delay condoned.

17. Leave granted.

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18. The issues involved in the matters being identical to the earliermatter where similar contentions were raised, we see no reason tointerfere. These appeals are, therefore, dismissed. No costs.

CIVIL APPEAL NO.4844 OF 2019

(Arising out of SLP(C) No.12247 of 2019) [ D.No.31847 of 2018]

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And

CIVIL APPEAL NO.4846 OF 2019

(Arising out of SLP(C) No.12250 of 2019) [ D.No.46457 of 2018]

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CIVIL APPEAL Nos.4843 OF 2019

(Arising out of SLP(C) No.7168 of 2018)

19. Delay condoned.

G20. Leave granted.

21. It is additionally submitted that the appellants belong to reservedcategories and as such are entitled, inter alia, to relaxation in qualifyingmarks.

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22. The criteria under the Rules is minimum of 50 per cent marksin each of the subjects. It was open to the State to have prescribed arelaxed or a different criterion for the reserved categories candidates.However, no such relaxation was granted by the State and consequentlyno relief can be granted by the Court. In terms of the Rules, as theystand, the criteria of minimum of 50 per cent marks has to be met. Sincethe appellants do not fulfil the criteria, no exception can be made. Theseappeals are, therefore, dismissed. No costs.

23. Selection undertaken pursuant to an advertisement dated19.05.2011 for recruiting 4010 posts of Sub-Inspectors (Civil Police)and 312 posts of Platoon Commanders (Provincial Armed Constabulary– PAC) in the State of UP by direct recruitment was the subject matterof decision by this Court in Alok Kumar Singh and others v. State ofU.P. and others Civil Appeal No.11370 of 2018 and other connectedmatters.

24. Writ Petition No.2604 of 2015 preferred by the presentapplicants in the High Court, was transferred to this Court and wasnumbered as TC(Civil) No.287 of 2017. It was disposed of along withaforesaid Civil Appeal No.11370 of 2018 etc.

25. It is now submitted that the grievance raised by the applicantsin the Writ Petition was in respect of selection through limiteddepartmental examination for promotion to the post of UP Sub-Inspector(Civil Police) Rankers Examination and was not by way of directrecruitment and that the matter was wrongly clubbed with Civil AppealNo.11370 of 2018. We, therefore, recall the aforesaid Judgment andorder dated 27.11.2018 to the extent it disposed of Transfer Case (Civil)No.287 of 2017.

26. Said Transferred Case is now taken up for consideration. Theprincipal prayer in the writ petition is to the effect that the respondent bedirected to give reservation and relaxation to the writ petitioners as SC/ST candidates. The submission in that behalf has already been consideredin the matters dealt with above. We see no reason to interfere in thematter. Transferred Case No.287 of 2017, therefore, stands dismissed.

27. Selection undertaken pursuant to an advertisement dated19.05.2011 for recruiting 4010 posts of Sub-Inspectors (Civil Police)

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Aand 312 posts of Platoon Commanders (Provincial Armed Constabulary– PAC) in the State of UP by direct recruitment was the subject matterof decision by this Court in Alok Kumar Singh and others v. State ofU.P. and others Civil Appeal No.11370 of 2018 and other connectedmatters.

B28. Writ Petition No.18788 of 2017 preferred by the presentapplicants in the High Court, was transferred to this Court and wasnumbered as TC(Civil) No.297 of 2017. It was disposed of along withaforesaid Civil Appeal No.11370 of 2018 etc.

29. It is now submitted that the grievance raised by the applicantsCin the Writ Petition was in respect of selection through limiteddepartmental examination for promotion to the post of UP Sub-Inspector(Civil Police) Rankers Examination and was not by way of directrecruitment and that the matter was wrongly clubbed with Civil AppealNo.11370 of 2018. We, therefore, recall the aforesaid Judgment andorder dated 27.11.2018 to the extent it disposed of Transfer Case (Civil)DNo.297 of 2017.

30. Said Transferred Case is now taken up for consideration. Theprincipal prayer in the writ petition is to the effect that the respondent bedirected to give reservation and relaxation to the writ petitioners as SC/ST candidates. The submission in that behalf has already been consideredEin the matters dealt with above. We see no reason to interfere in thematter. Transferred Case No.297 of 2017, therefore, stands dismissed.

Divya Pandey

Matters disposed of.

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