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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superseded the earlier Order dated 23.01.1999.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.