Dismissed

Kusum v. State of U.P. and 2 Others

Allahabad HC20 Apr 2018SPLA/356/2018

Case brief

AI extract

What is this about?

Special appellant challenged a writ dismissing her claim for appointment as Sub-Inspector after failing to secure 40% in each written paper. The Special Appeal was dismissed, affirming that eligibility criteria could not be waived and inadvertent interview call created no estoppel.

What did the court decide?

Special appeal dismissed; writ petition remanded to High Court for dismissal upheld.

Kusum Vs State of U.P. and 2 Others — Service and Employment | Allahabad HC (2018)

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Court No.39

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Case :- SPECIAL APPEAL No. - 356 of 2018

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Appellant :- Kusum Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Sanjay Kumar Singh,Pankaj Kumar Asthana Counsel for Respondent :- C.S.C.

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari, J.

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The dismissal of the writ petition that was filed for quashing the order dated 5 July 2006 passed by the U.P. Police Headquarters rejecting the claim of the petitioner for being declared successful in the recruitment for appointment on the post of Sub-Inspector (Civil Police)/Platoon Commander has led to the filing of this Special Appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules.

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It transpires that pursuant to an advertisement issued on 1 September 2001 inviting applications for appointment on the post of SubInspector (Civil Police)/Platoon Commander, the writ petitioner submitted an application treating herself to be a candidate belonging to the Scheduled Castes category. The petitioner appeared both at the preliminary examination and the main examination. In the result declared on 3 September 2005, the name of the petitioner was not included in the list of candidates selected for appointment.

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Writ-A No.61688 of 2005 was filed with a prayer that the petitioner should be treated as a candidate belonging to the Scheduled Tribes and not Scheduled Castes. The said writ petition was decided on 24 January 2006 and the petitioner was directed to be treated as a

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candidate belonging to the Scheduled Tribes category. It is stated that since the aforesaid order was not complied with, the writ petitioner filed contempt application and it is in the contempt application that the order dated 5 July 2006 issued by the Deputy Inspector General of Police (Establishment) was placed on record. A perusal of the said order indicates that the petitioner was found unsuccessful. This order was assailed by the petitioner in Writ-A No.45617 of 2006 , out of which the Special Appeal arises.

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In the counter affidavit filed to the writ petition, a specific stand was taken that the petitioner did not satisfy the requirement contained in the advertisement that for being successful in the reserved category, a candidate would have to obtain atleast 40% marks separately in each of the two written examinations but the petitioner had not obtained the requisite percentage of marks in the two papers.

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In the writ petition, an order was passed by the Court on 11 February 2010 directing the learned Standing Counsel to produce the original tabulation sheet/compilation generated after evaluation of OMR sheets. The impugned judgment mentions that the original tabulation sheet was produced before the Court from which it was clear that the writ petitioner had not obtained 40% marks separately in each of the two papers. The learned Judge has also mentioned in the order that faced with this difficulty, it was contended by learned counsel for the petitioner that the respondents had offered appointments to persons who had also not obtained 40% marks separately in each of the two papers. The Court,

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therefore, directed the DIG Headquarters to file his personal affidavit stating as to whether any candidate, who had not secured 40% marks separately in each of the two papers, had been offered appointment. The judgment notes that pursuant to the aforesaid order, a personal affidavit was filed in which it was categorical stated that only three reserved candidates did not obtain 40% marks separately in each of the two papers and none of them had been offered appointment.

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It is for this reason that the Court dismissed the writ petition and the observations are as follows:

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“ The undisputed facts which emerge before the Court are that the selection procedure prevalent at that time provided that a candidate should have scored at least 40% marks in each written paper for being declared successful in the written examination. The petitioner had failed to score the required 40% marks in each written paper separately . The petitioner had thus failed to qualify the written examination. Notwithstanding the same, she was called for interview. The selection scheme provided that candidates, who had passed written examination, would be called for interview. The issue which thus arises for consideration is whether the petitioner, who had failed to pass the written examination, could be given appointment solely on the ground that she was called for interview and could there be any estoppel against the State respondents in this regard.

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The selection scheme under which the petitioner is claiming appointment is sacrosanct. The eligibility criteria for passing the written examination i.e. scoring of more than 40% marks in each written paper separately could not be waived, even by the State respondents. The State respondents have stated on oath that they had not given selection to any candidate, who could not score the minimum required marks in the written papers . In the earlier writ petition, the controversy, as noted above, was entirely different. The direction issued by this Court was not for giving appointment to the petitioner, but

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for considering her candidature by treating her to be member of scheduled tribe. The mere fact that by inadvertence, the petitioner was issued interview letter and she was permitted to appear in the interview, in my considered opinion, would not act as estoppel against the State respondents to entitle the petitioner to appointment albeit being unsuccessful in the written examination . On the other hand, in case appointment is given to the petitioner despite the fact that she had failed to clear the written examination, it would be totally illegal and arbitrary. This Court does not find any illegality in the action of the respondents in declining to give appointment to the petitioner in the facts and circumstances discussed above.

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The petition lacks merit and is dismissed.” (emphasis supplied)

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Sri Sanjay Kumar Singh, learned counsel appearing for the appellant has submitted that it is only in the counter affidavit filed to the writ petition that a stand was taken by the respondents that the petitioner had not obtained 40% marks separately in each of the two papers and that such a stand was not taken earlier. It is, therefore, his submission that the tabulation sheet cannot be relied upon and the original OMR sheet should be summoned.

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It is not possible to accept this contention of learned counsel for the appellant. As noted above, the requirement of obtaining 40% marks separately in each of the two papers was an essential requirement both for the Scheduled Castes and Schedule Tribes candidates. The name of the petitioner was not included in the result declared on 3 September 2005, though the petitioner was treated as a candidate belonging to the Scheduled Castes category. The position would not alter even if the petitioner is treated to be a candidate belonging to the Scheduled Tribes

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because the requirement of obtaining atleast 40% marks separately in each of the two papers for the Schedule Castes candidates was also a requirement for the Scheduled Tribes candidates. The tabulation chart that was produced pursuant to the order dated 11 February 2010 clearly depicted that the writ petitioner had obtained less than 40% marks in each of the two papers. The tabulation chart is prepared on the basis of the marks obtained by candidates in the papers. The writ petitioner did not contend before the learned Judge that OMR sheet should also be produced nor was the OMR sheet directed to be produced by order dated 11 February 2010. It is, therefore, not open to the writ petitioner to now contend in the Special Appeal that OMR sheet should be summoned, particularly when the learned Judge has not recorded any finding that the tabulation chart was tampered nor was it contended by learned counsel for the petitioner that the tabulation chart had been tampered.

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The writ petitioner had admittedly not obtained 40% marks separately in each of the two papers. This was an essential requirement as set out in the advertisement. The writ petitioner was, therefore, not declared successful.

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We, therefore, do not find any error in the impugned judgment that may call for any interference in the Special Appeal.

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The Special Appeal is, accordingly, dismissed.

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Date :-20.04.2018 SK

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(Dilip Gupta, J.)

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(Neeraj Tiwari, J.)

Kusum v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Kusum v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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