Supreme Court of India
AMLAN JYOTI BOROOAHversusSTATE OF ASSAM AND ORS.
- Citation
- 2009 INSC 69
- Decided
- 23 January 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The appellant is estopped from challenging the appointments, and the appeal is dismissed.
Summary
The Assam Police advertised 112 Sub‑Inspector vacancies requiring a written test, a physical ability test and an interview, with the interview to follow the two tests. The Selection Committee, however, conducted interviews before the physical test, a procedural deviation the Supreme Court held to be a serious error. The appellant, who participated in the interview without objection, later challenged the appointment of 84 candidates selected from the waiting list, arguing the procedure was illegal and that new vacancies could not be filled from the list. The Court found the appellant estopped from contesting the appointments because he had accepted the altered procedure by his conduct. Consequently, the appeal was dismissed, leaving the appointments intact.
Issues considered
- The legality of the Selection Committee's alteration of the order of tests, conducting interviews before the physical ability test.
- Whether the appellant is estopped from challenging the appointments of candidates selected under the altered procedure.
- Whether filling additional vacancies from the select list complies with Articles 14 and 16 of the Constitution.
- Whether the Supreme Court should interfere with the High Court's judgment under Article 136.
Subjects
service lawrecruitmentselection procedurephysical ability testestoppelequalityArticles 14Articles 16panel lifeemergent situation
Judgment
[2009) 1 S.C.R. 593
AMLANJYOTIBOROOAH A
v.
STATE OF ASSAM AND ORS.
(Civil Appeal No. 387 of 2009)
JANUARY 23, 2009
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
Service Law:
Appointment - Post of Sub-Inspector of Police - c
Selection procedure - To hold written exams and candidates
qualifying therein to appear in physical test followed by
interview - Selection Committee holding interview prior to
holding of physical test - Correctness of - Held: In view of
the nature of job, physical ability test was extremely important
D
- Passing in physical test is sine qua non for selection of
candidates to the said post - It was a competitive test - Thus,
merit list should have been prepared not only on basis of
written test and interview but also physical ability test.
Appointment - Selection process - Change in, by E
Selection Committee - Candidate participating in selection
process without any demur - Estoppel, applicability of - Held:
Candidate accepted the change in the selection procedure
sub silentio - He did not challenge the appointment of
candidates made but challenged appointment of candidate F
made pursuant to increase in number of vacancies from time
to time - He cannot now be permitted to turn round and
contend that procedure adopted was illegal - He is estopped
and precluded from doing so.
G
Applications were invited for filling up the vacant-
- 11, posts of Sub-Inspector of Police. As per the procedure,
candidates possessing necessary qualifications were to
be called for written exams and the candidates qualifying
593 H
594 SUPREME COURT REPORTS (2009] 1 S.C.R.
A therein were to appear in physical test followed by
interview. Appellant and private respondents applied for
the post. The dates were fixed for written test and
physical ability test. Written test was held. Thereafter,
Selection Committee did not hold physical test but called
B the appellants and private respondents for interview. 1803
candidates were short listed and the select list was
published. It had life of two years. Appellant ranked 750
in the list. Thereafter, sanction was accorded for
appointment of 174 Sub-Inspector of Police. The eligible
C candidates were called for physical ability test. 169
candidates cleared the physical test/medical test and were
appointed. During the period the select list was active, 88
additional vacancies arose from the said select list, in
view of the insurgency situation in the State. Names of
the candidates appearing in the aforesaid select list from
0
serial no. 175 onwards were taken and again select list
was published. 84 candidates out of the said select list
were asked to appear in the physical test. 75 candidates
were found suitable for appointment. Appellant filed writ
petition challenging the selection of 84 candidates to the
E post. During pendency thereof, 74 persons joined the
post and have been working in the said post. However,
Single Judge of High Court set aside the appointment of
54 candidates. Division Bench of the High Court upheld
the appointment of private respondents, however, set
F aside the judgment of the Single Judge directing them to
fill up remaining 14 vacancies by holding physical and
medical test of the candidates from the select list
containing the names of 1803 candidates. Hence the
present appeal.
G
Dismissing the appeal, the Court ,.-
HELD: 1.1. In the advertisement, the candidates were
required not only to qualify in the written test but also the
t
physical ability test. A plain reading of the advertisement
H
AMLAN JYOTI BOROOAH v. STATE OF ASSAM AND 595
ORS.
clearly goes to show that the interview was to be A
conducted only after holding of the said two tests. In tune
with the said requirements only, the candidates were
asked to appear in the written test on 25/26.4.1998 and
in the physical test on 27/28.4.1998. However, there
cannot be any doubt whatsoever that a Selection B
Committee in a given situation, may lay down a
procedure for the purpose of short listing the candidates
but that does not mean that for the said purpose the order
of holding a requisite test would be changed. In terms of
a decision which was taken on 7.4.1999, the Selection c
Committee thought to take interview prior to holding of
the physical ability test. Physical ability test keeping in
view the nature of the job required to be performed by
the candidates was an extremely important one. Passing
in the physical ability test is a sine qua non for selection
0
of the candidates in the post of Sub-Inspector of Police.
It was indeed a competitive test. Thus, the merit list,
should have been prepared not only on the basis of the
written test and interview but also the physical ability test.
The Selection Committee committed a serious error in
changing the order of holding the tests. Therefore, Single E
Judge, was correct in holding that physical ability test
should have been held prior to holding of the interview.
[Para 18 and 19) [607-H; 608-A-E]
1.2. Appellant was aware of his position in the select F
list. He was also aware of the change in the procedure
adopted by the Selection Committee. He appeared at the
interview without any demur whatsoever although was
not called to appear for the physical ability test prior
thereto. Appellant chose to question the appointment of G
77 candidates not only on the premise that the procedure
- -.. adopted by the Selection Committee was illegal but also
on the premise that no new vacancy could have been
filled up from the select list. Appellant, having accepted
the change in the selection procedure sub silentio, by not H
596 SUPREME COURT REPORTS [2009] 1 S.C.R.
A questioning the appointment of 169 candidates, cannot
now be permitted to turn round and contend that the
procedure adopted was illegal. He is estopped and
precluded from doing so. [Para 20 and 21] [609-A-D]
Ashok Kumar Yadav and Ors. v. State of Haryana and
8
Ors. (1985) 4 SCC 417; State of UP. v. Rafiquddin and Ors.
(1987) Supp. SCC 401; Union of India and Ors. v. S. Vinodh
Kumar and Ors. 2007 (8) SCC 100; Sadananda Halo and Ors.
v. Momtaz Ali Sheikh and Ors. (2008) 4 SCC 619 and H. V.
C Nirmala v. Kamataka State Financial Corporation and Ors.
2008 (8) SCALE 315, referred to.
1.3. Articles 14 and 16 of the Constitution provide for
equality in the matter of recruitment. A large number of
posts of Sub-Inspector of Police fell vacant.
D Advertisement was issued in the year 1997. Effective
steps for filling up the said posts by holding written
examinations and interview were taken only in 1998
onwards. Appointments could be made of 169 candidates
only on or about 4.7.2000. For filling up the post of 112
E vacancies about 6000 candidates applied. Processing of
their applications and holding of written examination, viva
voce examination and physical ability test took a long
time. At the first stage of the recruitment process, 57
posts more than advertised 112 posts were filled up. ..
F Appellant did not question the legality and/or validity
thereof. He should have done the same at the earliest
possible opportunity. Having regard to the emergent
situation, in regard whereto note of earlier, proposal was
made to increase the number of vacancies from time to
G time. [Para 22] [611-A-E]
1.4. The State in an emergent situation would subject
to constitutional limitations is entitled to take a decision
which subserve a greater public interest. The
Constitution also demands that candidates who had
H acquired eligibility for recruitment to the post in the
AMLAN JYOTI BOROOAH v. STATE OF ASSAM AND 597
ORS.
meantime should also be given opportunities to A
participate in the selection process. This Court times
without number had lamented the lackadaisical attitude
on the part of the State to treat the matter of selection for
appointment to services in a casual and cavalier manner.
If no appointment could be made from 1997-2001, it is the 8
State alone who could thank itself therefor, but, unless
there exists constitutional or statutory interdict so as to
compel the Superior Court to set aside the selection
which has otherwise been validly made; in exercise of
their power of judicial review the same would not c
ordinarily be interfered herewith. [Para 23) [612-F-H; 613-
A]
1.5. In the instant case, the life of panel was two
years. The process of filling up the posts out of the said
select list started within one year from the preparation D
thereof. [Para 26) [613-D-E]
Union of India and Ors. v. B. Valluvan and Ors. (2006) 8
SCC 686; Surinder Singh v. State of Punjab 1997 (8) SCC
488 and State of Bihar and Ors. v. Amrendra Kumar Mishra
(2006) 12 sec 561, referred to. E
1.6. It was point out that even some appointees had
got zero marks in 100 meter race. Such a question had
not been raised before the courts below. Had such a
question been raised, the respondents could have dealt F
with the same. Furthermore, they were not found to be
physically handicapped of holding the post of Sub-
Inspector of Police. Their overall performance in all the
events had been taken into consideration for the purpose
of finding them physically fit for appointment. Those G
-. candidates who were absent in the interview or in the
physical ability test had not been selected. It is not a case
where the appellants had given a go-by to the physically
ability test. [Para 28] [614-D-F]
Gujarat State Dy. Executive Engineers' Association v. H
598 SUPREME COURT REPORTS [2009] 1 S.C.R.
A State of Gujarat and Ors. 1994 Supp (2) SCC 591, referred
to.
Case Law Reference:
(1985) 4 sec 411 Referred to Para 21
8
(1987) Supp. sec 401 Referred to Para 21
2001 (8) sec 1oo Referred to Para 21
(2008) 4 sec 619 Referred to Para 21
c 2008 (8) SCALE 315 Referred to Para 21
(2006) 8 sec 686 Referred to Para 24
1997(8) sec 488 Referred to Para 24
D (2006) 12 sec 561 Referred to Para 25
1994 Supp (2) sec 591 Referred to Para 27
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 387
of 2009.
E
From the Judgment and Order dated 5.5.2006 of the
Gauhati High Court in W.A. No. 54 of 2004.
Amrit Phukan, Gen., Raju Ramachandran, P.K. Goswami,
Arun K. Sinha, Rakesh Singh, Sunit Sinha, Riku Sharma,
F Ranjan Majumdar (for Corporate Law Group), Rajiv Mehta,
Parthiv Goswami, Ahanthom Henry, Manish Goswami (for Map
and Co.), M. Bhuyan, Raka Phookan, Hrishkesh Baruah, Arjun
Bobde, Jagjit Singh Chhabra, Subodh Kr. Pathak, Arman
Sharma and Shimpy Garg for the appearing parties.
G
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. This appeal is directed against a judgment and order
H dated 5.5.2006 passed by a Division Bench of the Guwahati
AMLAN JYOTI BOROOAH v. STATE OF ASSAM AND 599
ORS. [S.B. SINHA, J.]
High Court in Writ Appeal No.54 of 2004 whereby and A
whereunder the judgment and order dated 12.2.2004 passed
by a learned Single Judge of the said Court was modified.
3. The basic fact of the matter is not in dispute.
The Director General of Police, Assam published an B
advertisement inviting applications for 112 vacancies which
were likely to arise in the post of Sub-Inspector of Police on or
.,._ about 6.9.1997, the relevant clauses laying down the
, procedures therefor, were as under :
c
"On selection candidates will be put through a prescribed
course of training for one year at the Assam Police
Training College. Dergaon and during the period of training
they will be treated as cadre S.I. of Police. The cadets who
fail in the final examination after training at the Police
D
.... Training College will be liable to be discharged. The
candidates securing top positions in the final Examination
will be considered for U.B. and the rest for AB. subject to
the 20 points Roster.
All candidates possessing necessary qualification will E
appear in a written test which will comprise of one paper
of 3 (three) hours duration. Questions will be on subjects
like General Knowledge, History Science, Basic
Mathematics, Comprehension etc. Venue of the test will
be decided by the Supdt. Of Police of the Districts in which F
candidates are presently residing as shown in the
application form. They will contact PoliceReserve of the
Districts for the purpose and ascertain dates.
Those candidates who qualify in the written testwill be
G
required to appear in a physical test and interview to be
-)I.
conducted centrally for which date will be notified later.
The candidates will have to appear in the written test,
physical test and interview at their own expenses."
H
600 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 4. Pursuant thereto or in furtherance thereof, appellant as
also the private respondents applied therefor. They were asked
by a call letter dated 18.3.1998 to appear at the written test on
25th/26th April, 1998 and physical ability test on 27th/28th April,
1998. Indisputably, the written test was held on 26.4.1998. It,
B however, appears that despite laying down the said procedures
in the advertisement, a decision was taken by the Selection
Committee to call such candidates for interview only who had
acquired 40% in the written test. Call letters were issued ~
accordingly, a sample copy whereof is as under:
'
c "You are requested to appear in the interview to be held
in the venue noted below alongwith original certificates.
No TA/DA would be paid for appearing in the above
interview.
D
In case you are selected in the interview you will be ....
called for physical test for final selection."
5. Appellants as also the private respondents amongst
others appeared in the interview before the duly constituted
E Interview Boards. The Selection Committee short listed 1803
candidates in order of merit. The said select list is said to have
been published and hung on the notice board of the office of
the Director General of Police on 1.2.2000. Appellant's position
in the select list was 750. He obtained 32 points in the interview ..
F and 92 in the written test, total being 124 marks. It is stated
that the life of the said select list was two years.
6. Allegedly, on 2.3.2000, the Inspector General of Police
requested the Home Department of the Government of Assam
to obtain sanction of the State Level Empowered Committee
-
G
for appointment of 17 4 Sub-Inspector of Police pursuant
whereto the Home Department accorded sanction therefor. ll. -
7. Those candidates who were found eligible to be called
for physical ability test were asked to appear therein which was
H
AMLAN JYOTI BOROOAH v. STATE OF ASSAM AND 601
ORS. [S.B. SINHA, J.]
..._ held on 19.2.2000. On or about 4.7.2000, 169 candidates who A
had cleared the physical test/medical test were appointed on
the post of Sub-Inspector of Police.
The said order, appointing the aforementioned 169 posts
was not the subject matter of the challenge before the High B
Court. However, it appears that during the currency of the life
of the select list, the Director General of Police, by a letter dated '
~ 21.12.2000, addressed to the Commissioner- Secretary to the
Home Department, Dispur, asked for sanction of the State
Level Empowered Committee (SLEC) to fill up 77 additional
vacancies that had arisen from the aforementioned select list,
c
stating :
"I am writing to inform you that presently, there are 2154
number of vacancies in the rank of constables (Battalion
,.,., 1136, District AB 504, District UB 514) and 77 Nos. of D
vacancies in the rank of S.ls in the Assam Police. These
are all functional posts. In the context of insurgency situation
obtained in the state and that there will be Assembly
Election within the next four months, we will need to
mobilize all the manpower. In view of this, it is requested E
that permission of the State Level Empowered Committee
may be conveyed to us to fill up these vacancies by direct
recruitment from the results of the records of the previous
.... recruitment rallies already available with us. Government
orders on the same may kindly be issued immediately." F
8. Allegedly, urgency and compelling reasons for which the
said vacancies were to be filled up was vast deteriorating law
and order situation in the State as also sudden spurt of
extremists related incidents of violence. It was furthermore
stated that in the Brahmaputra vally, the ULFA and the NDFB G
\(
had intensified their subversive activities and resorted to
widespread killing and extortion spree in the hill district of Karbi
Anglong and the NC Hills where the UPDS and DHD had
already been active. It was furthermore contended that the
NSCN (IM) and the Kuki militants also resorted to sporadic acts H
602 SUPREME COURT REPORTS (2009) 1 S.C.R.
A of violence in the said two districts. According to the State,
during the period 1.7.2000 to 31.12.2000 356 extremists
related incidents took place and between the period 1.1.2001
to 30.6.2001, 259 such incidents took place wherein a large
number of civilians, force personnel and extremists were killed.
B It was contended that the number of kidnapping which took
place during the aforementioned period was 70.
9. An office note was thereafter put up for consideration "':'
of the Director General of Police in respect of 88 vacancies
c which had arisen by that time in the rank of Sub-Inspector of
Police. Approval was sought for from the Director General of
Police as to whether the said vacancies be filled up from
amongst the candidates whose names appear in the
aforementioned select list from Serial No.175 onwards as the
list had already been acted upon upto serial No.174. The
D Director General of Police is said to have accorded the
necessary approval. Pursuant thereto, the Home Commissioner
•
was requested to sanction 80 posts in the existing vacancies
in the State in place of 77 vacancies. The said select list was
again published on 8.1.2001. 84 candidates out of the said
E select list were asked to appear in the physical ability test on
22.1.2001. Three candidates failed to appear in the physical
test and four others failed to clear the physical test and
thereafter 77 candidates were called to appear for the medical
test on 25.1.20001 out of which 75 candidates were found ,.,
F suitable for appointment. The Deputy Secretary to the
Government of Assam, Home Department, thereafter by a letter
dated 20.2.2001 conveyed the sanction of the SLEC for direct
recruitment in respect of 80 vacancies to the post of Sub-
Inspector of Police, stating :
G
"In inviting a reference to your letter cited above, I am
directed to inform you that the Personnel (8) Department
has obtained and conveyed the clearance of the SLEC for
direct recruitment of 80 (UB) Sub-Inspector of Police by
obseNing necessary formalities as required in this regard.
H
AMLAN JYOTI BOROOAH v. STATE OF ASSAM AND 603
ORS. [S.B. SINHA, J.]
This issue as per endorsement of the Personnel (8) A
Department communicated vide their consulted U/O
No.141/2001, dated 17.2.2001."
10. Appellant herein and some other candidates thereafter
filed a writ petition before the High Court impuging the
B
selection of 84 candidates to the post of Sub-Inspector of Police
in February 2001.
11. Indisputably, during pendency of the said writ petition,
posts were filled up as 75 persons who had been found suitable
were offered appointment to the post of Sub-Inspector of Police c
on 2.3.2001. The respondents who were 74 in number had
accepted the said offer of appointment on 3.3.2001; one of
them, however, did not join the post. They were sent for and
completed their training. Indisputably, they have been working
in the said post. By reason of a judgment and order dated D
12.2.2004 a learned Single Judge of the said Court, however,
set aside the appointment of 54 candidates, opining:
"Surely, if the physical test constituted a competitive
component of the selection process, calling the 84/76
E
persons for the physical test on the basis of the marks
secured by them in the written test and oral interview and
in ignoring the petitioners was fatal. All the candidates
;..
were not judged by a uniform process; those appointed
and those left out were assessed by two different
yardsticks, discrimination, therefore, is writ large. The F
possibility of the petitioners, who were not appointed being
placed higher than those eventually appointed had the
petitioners also been assigned marks in the physical test
cannot be ruled out, particularly, when the records
produced reveal that the difference of the total marks G
~
secured by the candidates in the written test and oral
interview was exceedingly small. Illustratively, note may be
taken of the fact that not only a large number of candidates
secured the same marks, the first of the 84 candidates
called for the physical test had secured 147 marks in the H
604 SUPREME COURT REPORTS [2009] 1 S.C.R.
A written test and oral interview whereas the last candidate "'"
out of the group of 84/76 called for the physical test had
secured 146 marks. The petitioner in WP (C) No.628/01,
who secured the 750th position, secured 124 marks, i.e.,
a difference of only 22 marks in comparison to the last of
B the candidate appointed. The possibility of an entirely
different picture emerging, if the petitioners have been
called for the physical test, therefore, looms large. For the
aforesaid reasons, this Court has no hesitation in reaching *
the conclusion that the fundamental rights of the petitioners
c under Articles 14 and 16 of the Constitution have been
infringed by the procedure adopted. The yardstick applied
did not result in a correct determination of the inter se merit
D
of all the candidates for the purpose of securing
appointment."
Contention of the respondents herein that on equitable ...
-
grounds, their appointment should not be interfered with, was
rejected, stating :
"Equity must not be equated with compassion. Equitable
E principles must emanate from facts which by themselves
are unusual and peculiar. A balance has to be struck and
the Court must be cautious to ensure that its endeavour
to do equity does not amount to judicial benevolence or
acquiescence of established violation of fundamental "'
F rights and the principles of Rule of law."
It was directed :
"For all the aforesaid reasons, this Court is unable to save
any of the appointments of the 84/76 Sub-Inspectors of
G Police made on 1.3.2001. All such appointments, therefore,
shall stand interfered with. In view of the conclusion ~
reached, no relief to the petitioners by directing
consideration of their cases afresh, will also be possible.
However, in the totality of the facts and circumstances of
H the case, it is considered appropriate to direct that in the
AMLAN JYOTI BOROOAH v. STATE OF ASSAM AND 605
ORS. [S.B. SINHA, J.]
-" fresh selection process that will now have to be initiated
by the State, if any of the candidates, who had taken part
A
in the earlier selection process, opts to apply for the posts
that may be advertised, suitable relaxation of age, if
required will be made by the authorities."
B
12. Three Writ Appeals were preferred thereagainst. By
reason of the impugned judgment dated 5.5.2006, a Division
+ Bench of the High Court, while upholding the appointment of
the private respondents, set aside the judgment of the learned
Single Judge directing them to fill up remaining 14 vacancies
by holding physical and medical test of the candidates from the c
select list containing the names of 1803 candidates.
13. Appellant herein filed Special Leave Petition on
3.7.2006. However, even prior thereto, i.e. on 24.6.2006 in terms
-Y of the judgment of the Division Bench of the High Court, an D
advertisement was issued in a local daily "The Assam Tribune".
Indisputably, appellant with others appeared in the physical test,
of course, without prejudice to his rights and contentions herein.
He secured only 20 marks (144 marks in aggregate) in the
physical test which was lower than the marks secured by the E
last general category candidate who had secured 153.5 marks.
14. Mr. Raju Ramachandran, learned senior counsel
A
appearing on behalf of the appellant, would submit that the
Division Bench of the High Court committed a serious error in
passing the impugned judgment in so far as it failed to take F
into consideration the importance of holding a physical test
before preparation of the select list. The learned counsel urged
that arbitrariness on the part of the Selection Committee is
apparent from the fact that the order of holding tests kept on
changing as the physical ability test was pushed to the G
, ... ~
background. It was furthermore submitted that the Division
Bench of the High Court did not assign sufficient and cogent
reasons for interfering with the well considered judgment of the
learned Single Judge and proceeded to modify the same
without any applicant of mind. H
606 SUPREME COURT REPORTS [2009] 1 S.C.R.
A Our attention was moreover drawn to the fact that the
purported reasons for modification which were enumerated in
paragraph 12 of the impugned judgment really contain the
statement of facts and, thus, the same is wholly unsustainable.
15. Mr. P.K. Goswami, learned senior counsel appearing
8
on behalf of the private respondents and Mr. Phukan, appearing
on behalf of the State, on the other hand, would contend that
the appellant, in the facts and circumstances of this case, must +
be held to be estopped and precluded from raising any
contention with regard to the validity or otherwise of the
C procedure for selection adopted by the Selection Committee
as he had participated in the Selection process without any
demur whatsoever.
16. Mr. Manish Goswami, learned counsel appearing on
o behalf of respondent No.157, Rajesh Kumar Das, would draw
our attention to the fact that the said respondent was an NCC
candidate and as such was entitled to a preferential treatment.
He, having been ignored, filed a writ petition being WP(C}
No.1757 of 2000 and by an order dated 7.4.2000, a learned
E Judge of the High Court passed an interim order to the following
effect:
"Mr. Uzir, learned counsel for the petitioner submitted
that an advertisement was published inviting applications
for filling up of vacant posts of Sub-Inspector (UB), Assam
F Police Force and it was clearly stated in the advertisement
that preference will be given to those candidates who
possess N.C.C. ·c· certificate. The petitioner also
possesses N.C.C. ·c· certificate and yet he did not get
preference to the selection. The petitioner had therefore,
G challenged the selection to the post of Sub-Inspector of
Police (UB).
As an interim measure, I direct that one post of Sub-
Inspector (UB) out of the 31 posts advertised shall be kept
H
AMLAN JYOTI BOROOAH v. STATE OF ASSAM AND 607
ORS. [S.S. SINHA, J.]
vacant till pendency of the writ petition." A
-....
The said writ petition was allowed by a judgment and order
dated 10.8.2000, directing :
"While issuing a notice of motion, this Court by an order
dated 7.4.2000 passed an interim order directing that one B
post of Sub-Inspector (UB) out of the 31 such posts
advertised shall be kept vacant till the disposal of this writ
+
petition.
This writ petition is finally disposed of with a direction c
to the respondent No.2, the Director General of Police,
Government of Assam, to consider the case of the
petitioner for appointment against the post of Sub-
Inspector (UB) directed to be kept vacant by this Court's
interim order dated 7.4.2000, as a special case subject D
~·
to verification as to his antecedents in view of the fact that
the advertisement categorically mentioned that the
candidates possessing NCC certificate would be given
preference and the petitioner is the only candidate who
possesses NCC certificate to be precise, the highest NCC
E
'C' certificate. The petitioner shall furnish a certified copy
of this order along with a copy of this writ petition and the
annexures thereto to the respondent No.2, the Director
General of Police, Assam, who shall comply with the
.ii,
above direction of this court within 10 (ten) days from the
date of receipt of the same."
F
17. It is stated that pursuant thereto and in furtherance
thereof only the said respondent had been appointed and had
been working since then. Our attention was furthermore drawn
to the fact that against the o~der of the learned Single Judge, G
a writ appeal had been filed by him which is pending.
- ,'I(
18. Indisputably in the advertisement, the candidates were
required not only to qualify in the written test but also the
physical ability test. A plain reading of the advertisement clearly
H
608 SUPREME COURT REPORTS (2009) 1 S.C.R.
A goes to show that the interview was to be conducted only after
holding of the said two tests.
19. In tune with the said requirements only, the candidates
were asked to appear in the written test on 25/26.4.1998 and
in the physical test on 27/28.4.1998. There cannot, however,
B
be any doubt whatsoever that a Selection Committee in a given
situation, may lay down a procedure for the purpose of short
listing the candidates but that does not mean that for the said +
purpose the order of holding a requisite test would be changed.
In terms of a decision which was taken on 7.4.1999, the
c Selection Committee thought to take interview prior to holding
of the physical ability test. Physical ability test keeping in view
the nature of the job required to be performed by the candidates
was an extremely important one. Passing in the physical ability
test is a sine qua non for selection of the candidates in the post
D of Sub-Inspector of Police. It was indeed a competitive test. The ...
merit list, thus, should have been prepared not only on the basis
of the written test and interview but also the physical ability test.
The Selection Committee, in our opinion, committed a serious
error in changing the order of holding the tests. The learned
E Single Judge, therefore, was correct in arriving at a conclusion
that physical ability test should have been held prior to holding
of the interview.
20. The question which, however, arises for consideration ...
F is as to whether despite the same, we, in exercise of our
jurisdiction under Article 136 of the Constitution of India, should
interfere with the impugned judgment. Appellant concededly did
not question the appointment 169 candidates. It is idle to
contend that he was not aware thereof.
G If he was to challenge the validity and/or legality of the
entire select list in its entirety, he should have also questioned )<
the recruitment of 169 candidates which took place as far back
as on 4.7.2000.
AMLAN JYOTI BOROOAH v. STATE OF ASSAM AND 609
ORS. [S.S. SINHA, J.]
Appellant was aware of his position in the select list. He A
--+
was also aware of the change in the procedure adopted by the
Selection Committee. He appeared at the interview without any
demur whatsoever although was not called to appear for the
physical ability test prior thereto.
B
Appellant chose to question the appointment of 77
candidates not only on the premise that the procedure adopted
+ by the Selection Committee was illegal but also on the premise
that no new vacancy could have been filled up from the select
list.
c
21. Appellant, in our opinion, having accepted the change
in the selection procedure sub silentio, by not questioning the
appointment of 169 candidates, in our considered opinion,
cannot now be permitted to turn round and contend that the
procedure adopted was illegal. He is estopped and precluded D
from doing so.
In Ashok Kumar Yadav and Others v. State of Haryana
and Others [(1985) 4 SCC 417], a Constitution Bench of this
Court has stated that a viva voce examination plays an important
E
role in the matter of selection of candidates in responsible
posts. So far as the post of a Sub-Inspector is concerned, he ·
not only must have educational qualification as prescribed in
the advertisement but also must have a good presence of mind
and other qualities to meet the exigencies of situation. It,
however, does not mean that the physical ability test should be F
relegated to a back seat.
The question came up for consideration again in State of
UP. v. Rafiquddin and Others [(1987) Supp. SCC 401],
wherein it was held : G
)( " ... Commission is required to judge the suitability of a
candidate on the basis of sufficiently high marks obtained
by a candidate in the viva voce test, it has to fix some
percentage of marks which in its opinion may be sufficient
H
610 SUPREME COURT REPORTS [2009] 1 S.C.R.
A to assess the suitability of a candidate. In the absence of
a fixed norm, there could be no uniformity in assessing
suitability of candidates in the viva voce test. The
Commission had therefore power to fix the norm and in the
instant case it had fixed 35 per cent minimum marks for
B viva vocei test. The viva voce test is a well recognised
method of judging the suitability of a candidate for
appointment to public services and this method had almost
universally been followed in making selection for +
appointment to public services. Where selection is made
c on the basis of written as well as viva voce test, the final
result is determined on the basis of the aggregate marks.
If any minimum marks either in the written test or in viva
voce test are fixed to determine the suitability of a
candidate the same has to be respected. Clause (ii) of the
proviso to Rule 19 clearly confers power on the
D
Commission to fix minimum marks for viva voce test for
judging the suitability of a candidate for the service. We do
not find any constitutional legal infirmity in the provision."
In Union of India and Others v. S. Vinodh Kumar and
E Others [(2007) 8 SCC 100], this Court held :
"18. It is also well settled that those candidates who
had taken part in the selection process knowing fully well
the procedure laid down therein were not entitled to question
F the same."
The matter again came up for consideration before this
Bench in Sadananda Halo and Others v. Momtaz Ali Sheikh
and Others ((2008) 4 SCC 619], wherein this Bench held :
G "59. It is also a settled position that the unsuccessful
candidates cannot turn back and assail the selection
)<
process. There are of course the exceptions carved out by
this Court to this general rule."
[See also H. V. Nirmala v. Karnataka State Financial
H
AMLAN JYOTI BOROOAH v. STATE OF ASSAM AND 611
ORS. [S.B. SINHA, J ]
Corporation and Ors. [2008 (8) SCALE 315] A
22. Submission of Mr. Raju Ramachandran that new
vacancies created should not have been filled up from the select
list may now be considered. Articles 14 and 16 of the
Constitution of India provide for equality in the matter of
B
recruitment. A large number of posts of Sub-Inspector of Police
fell vacant. Advertisement was issued in the year 1997.
+· Effective steps for filling up the said posts by holding written
examinations and interview were taken only in 1998 onwards.
Appointments could be made of 169 candidates only on or
about 4.7.2000. It is not in dispute that for filling up the post of
c
112 vacancies about 6,000/- candidates applied. Processing
of their applications and holding of written examination, viva
voce examination and physical ability test took a long time. At
the first stage of the recruitment process, 57 posts more than
advertised 112 posts were filled up. Appellant did not question D
the legality and/or validity thereof. He should have done the
same at the earliest possible opportunity. Having regard to the
emergent situation, in regard whereto we have taken note of
earlier, proposal was made to increase the number of
vacancies from time to time. E
23. The State in an emergent situation would subject to
constitutional limitations is entitled to take a decision which
subserve a greater public interest. While saying so, we are not
unmindful of the fact that the Constitution also demands that F
candidates who had acquired eligibility for recruitment to the
post in the meantime should also be given opportunities to
participate in the selection process. This Court times without
number had lamented the lackadaisical attitude on the part of
the State to treat the matter of selection for appointment to
G
services in a casual and cavalier manner. If no appointment
;Ji
could be made from 1997 to 2001, it is the State alone who
could thank itself therefor, but, unless there exists a constitutional
or a statutory interdict so as to compel the Superior Court to
set aside the selection which has otherwise been validly made;
H
612 SUPREME COURT REPORTS [2009] 1 S.C.R.
A in exercise of their power of judicial review the same would not
ordinarily be interfered therewith.
24. Mr. Raju Ramachandran ·has strongly relied upon a
judgment of this Court in Union of India and Others v. B.
B Valluvan and Others [(2006) 8 SCC 686]. This Court therein
opined that the life of a panel ordinarily is one year. Therein
this Court noticed this Court's earlier's decision in Surinder
Singh v. State of Punjab [(1997) 8 SCC 488] to hold:
"17. The life of a panel ordinarily is one year. The
C same can be extended only by the State and that too if
the statutory rule permits it to do so. The High Court
ordinarily would not extend the life of a panel. Once a panel
stands exhausted upon filling up of all the posts, the
question of enforcing a future panel would not arise. It was
D for the State to accept the said recommendations of the
Selection Committee or reject the same. As has been
noticed hereinbefore, all notified vacancies as also the
vacancy which arose in 2000 had also been filled up. As
the future vacancy had already been filled up in the year
E 2000, the question of referring back to the panel prepared
in the year 1999 did not arise. The impugned judgment,
therefore, cannot be sustained."
In that case, however, it was held:
F "11. The Review Bench of the High Court posed unto
itself a wrong question. It did not say how an error apparent
on t11e face of the record had been committed. It did not
assign sufficient or cogent reason to hold as to how the
original application before the Tribunal would have been
G maintainable if the petitioners had no existing legal right.
The 1st respondent did not have any legal right to be
appointed. He filed an application pursuant to the said
advertisement. It is not his case that his application had
not been considered. He did not raise any plea of unfair
H treatment. No ma/a fide was also alleged."
AMLAN JYOTI BOROOAH v. STATE OF ASSAM AND 613
ORS. [S.B. SINHA, J.]
In that case, the posts more than advertised were filled up. A
25. Yet again in State of Bihar and Others v. Amrendra
Kumar Mishra [(2006) 12 SCC 561], this Court took the same
view, stating:
"Life of a panel, it is well known, remains valid for a B
year. Once it lapses, unless an appropriate order is issued .
by the State, no appointment can be made out of the said
panel."
It was furthermore held: c
"13. The decisions noticed hereinbefore are
authorities for the proposition that even the wait list must
be acted upon having regard to the terms of the
.. advertisement and in any event cannot remain operative
beyond the prescribed period."
D
26. In this case, however, the life of panel was two years.
The process of filling up the posts out of the said select list
started within one year from the preparation thereof.
E
27. In Gujarat State Dy. Executive Engineers' Association
v. State of Gujarat and Others [1994 Supp (2) SCC 591], this
Court while opining that the future vacancies should ordinarily
not be filled up from the waiting list, however, observed:
"Appointment in future vacancies from waiting list F
prepared by the Commission should be exception rather
than the rule. It has many ramifications .... There was no
contingency nor the State Government had taken any
decision to fill the vacancies from the waiting list as it was
not possible for it to hold the examination nor any emergent G
situation had arisen except the claim of some of the
4·
candidates from the waiting list that they should be given
appointment for vacancies which arose between 1980 and
1983 and between 1983 and 1993 .... The direction of the
High Court, therefore, to appoint the candidates from the H
614 SUPREME COURT REPORTS [2009] 1 S.C.R.
A waiting list in the vacancies which, according to its
calculation, arose between the years 1980 to 1983 and
between 1983 to 1993 cannot be upheld."
Therein, the State Government had taken any decision to
fill the vacancies from the waiting list as it was not possible for
8
it to hold the examination nor any emergent situation had arisen
except the fact that some candidates claimed that from the
waiting list they should be given appointment in the vacancies
which arose between 1980 and 1983 and between 1983 and
C 1993. Exception therein had been made out in respect thereof
in an emergent situation.
This case meets the said criteria.
28. Mr. Raju Ramachandran would point out that even
0 some appointees had got zero marks in 100 meter race. Such
a question had not been raised before the courts below. Had
such a question been raised, the respondents could have dealt
with the same. Furthermore, they were not found to be
physically handicapped of holding the post of Sub-Inspector of
E Police. Their overall performance in all the events had been
taken into consideration for the purpose of finding them
physically fit for appointment. Those candidates who were
absent in the interview or in the physical ability test had not been
selected. It is not a case where the appellants had given a go-
by to the physically ability test.
F
29. For the reasons aforementioned, there is no merit in
this appeal which is dismissed accordingly. However, in the
facts and circumstances of this case, there shall be no order
as to costs.
G
N.J. Appeal dismissed.
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