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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: 1. Leave  granted  in  the  special  leave  petitions.  I.A.

No.52 of 2015 is allowed.  

2. This  batch  of  appeals  raises  a  common  controversy

relating to the promotion of Constables and Head Constables

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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.

3. 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superseded  the  earlier  Order  dated  23.01.1999.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

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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.

4. 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

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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.

5. 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

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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.

6. 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

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candidates who were selected after the interview already

held, for the rank of Sub-Inspectors.

7. The  learned  Single  Judge  decision  weighed  on  the

following points:

(i) There  was  substantial  departure  from  the  Police

Regulations  as  amended  upto  1977  in  the  entire

process of selection and promotion.

(ii) 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.

(iii) The  members  of  the  Interview  committee  who

conducted  the  interviews  did  not  give  separate

marks individually but a single collective marking

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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.

8. 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:

(i) 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.

(ii) It  further  held  that  once  the  candidates  had

participated in the process of selection without

raising objections; they could not be allowed to

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challenge the process at a later stage.

(iii) 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.

(iv) 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.

(v) 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

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procedure set out under order dated 27.02.1999 was

followed throughout the selection process.

9. 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.

10. 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

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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.

11. 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,

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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.

12. 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.  

13. 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

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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.

14. 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

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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

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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.

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15. 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

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find this argument as a misplaced one.  

16. 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)

17. Further, in our view, the Division Bench has correctly

dealt with the issue of sealed cover procedure. The process

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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.  

18. 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.,

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(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.

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19. 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.