REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.     387           OF 2009 (Arising out of SLP (C) No.10726 of 2006)

Amlan Jyoti Borooah … Appellant

Versus

State of Assam & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against a judgment and order dated 5.5.2006

passed by a Division Bench of the Guwahati  High Court  in Writ  Appeal

No.54  of  2004  whereby  and  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 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 :

“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 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 A.B. subject to the 20 points Roster.

All  candidates possessing  necessary qualification will 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 candidates are presently residing as shown in the application form.  They will contact Police Reserve  of  the  Districts  for  the  purpose  and ascertain dates.

Those candidates  who qualify in the  written  test will  be required to appear in a physical  test  and interview to be 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.”

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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,  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 :

“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.

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 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

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select list was 750.  He obtained 32 points in the interview 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 for appointment of 174 Sub-Inspector

of  Police  pursuant  whereto  the  Home  Department  accorded  sanction

therefor.

7. Those candidates who were found eligible to be called for physical

ability test were asked to appear therein which was held on 19.2.2000.  On

or about 4.7.2000, 169 candidates who 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 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, stating :

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“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 vacancies in the rank of  S.Is  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 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.”

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 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 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

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personnel and extremists were killed.  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 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 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 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  therafter  77

candidates were called to appear for the medical test on 25.1.20001 out of

which  75  candidates  were  found  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 :

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“In inviting a reference to your letter cited above, I am directed to inform you that the Personnel (B) Department  has  obtained  and  conveyed  the clearance of the SLEC for direct recruitment of 80 (UB)  Sub-Inspector  of  Police  by  observing necessary formalities as required in this regard.

This  issue  as  per  endorsement  of  the Personnel  (B)  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 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  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

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,

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calling the 84/76 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  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 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 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 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  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  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 :

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“Equity  must  not  be  equated  with  compassion. Equitable  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  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 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 the case, it is considered appropriate to direct that in the fresh selection process that will now have to be initiated by the State, if any of the candidates, who had taken part 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.”

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

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vacancies by holding physical and medical test of the candidates from the

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 of the judgment of the Division

Bench of the High Court, an 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 last general category

candidate who had secured 153.5 marks.

14. Mr. Raju Ramachandran, learned senior counsel 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 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 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

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Single Judge and proceeded to modify the same without any applicant  of

mind.

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 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

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  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 Judge of

the High Court passed an interim order to the following effect :

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“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 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,  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  vacant  till  pendency  of  the  writ petition.”

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 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  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 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

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candidate  who  possesses  NCC  certificate  to  be precise, the highest NCC ‘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  above  direction  of  this  court within 10 (ten) days from the date of receipt of the same.”

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 order  of  the

learned Single Judge, a writ appeal had been filed by him which is pending.

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 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,  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

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terms of a decision which was taken on 7.4.1999, the 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 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 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  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.

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.

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Appellant was aware of his position in the select 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  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.

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 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 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

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qualities to meet the exigencies of situation.  It, however, does not mean

that the physical ability test should be relegated to a back seat.

The  question  came up  for  consideration  again  in  State  of  U.P. v.

Rafiquddin and Others [(1987) Supp. SCC 401], wherein it was held :

“…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  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 viva voce 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 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 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.”

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In Union of India and Others v. S. Vinodh Kumar and 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 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 :

“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 Corporation &

Ors. [2008 (8) SCALE 315]

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 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

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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 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  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.

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 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 services in a casual and cavalier manner.  If

no appointment 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

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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 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. 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 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 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  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:

“11.  The  Review  Bench  of  the  High  Court posed unto itself a wrong question. It did not say how an error  apparent  on the  face of  the record

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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 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 treatment. No mala fide was also alleged.”

In that case, the posts more than advertised were filled up.

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  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:

“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.”  

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.   

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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  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 situation had arisen except the claim of some of the 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 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  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 1993.  Exception therein had been made out in respect

thereof in an emergent situation.   

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 This case meets the said criteria.   

28. Mr. Raju Ramachandran would 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  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 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.

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.

………………………….J. [S.B. Sinha]

..…………………………J.     [V.S. Sirpurkar]

New Delhi; January 23, 2009

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