Nirbhay Kumar vs The State Of Bihar

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO. 227 OF 2019 NIRBHAY KUMAR & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH WRIT PETITION (C) NO. 225 OF 2019 SHAILENDRA MOHAN SINGH & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH WRIT PETITION (C) NO. 582 OF 2019 GUNJAN KUMAR & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH WRIT PETITION (C) NO. 591 OF 2019 RAJAN KUMAR & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH WRIT PETITION (C) NO. 592 OF 2019 RAJESH KUMAR & ORS. … PETITIONERS Signature Not Verified

Digitally signed by ARJUN BISHT VERSUS Date: 2020.06.11 14:32:59 IST

STATE OF BIHAR & ORS. … RESPONDENTS Reason:

WITH 2

WRIT PETITION (C) NO. 106 OF 2020 HIMANSHU KUMAR & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH WRIT PETITION (C) NO. 1451 OF 2019 RAJU KUMAR & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH WRIT PETITION (C) NO. 273 OF 2020 NAVIN KUMAR & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH SLP(C) NO. 4370 OF 2020 ARINJAY KUMAR & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH WRIT PETITION (C) NO. 278 OF 2020 RAVI CHOUBEY & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH

WRIT PETITION (C) NO. 345 OF 2020 NEERAJ KUMAR SRIVASTAVA & ORS. … PETITIONERS 3

VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH WRIT PETITION (C) NO. 433 OF 2020 ABHIMANYU KUMAR & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS WITH WRIT PETITION (C) NO. 419 OF 2020 SHAILESH KUMAR & ORS. … PETITIONERS VERSUS STATE OF BIHAR & ORS. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

1. This bunch of writ petitions have been filed under

Article 32 of Constitution of India by the petitioners

claiming appointment to the post of Sub-Inspector of

Police in the State of Bihar claiming parity with 133

candidates who were appointed under Orders of this

Court by subjecting them only to the Medical test and

not subjecting them with the Physical test. Counter

Affidavit has been filed in writ petition No.227 of

2019 by State of Bihar as well as Bihar Staff Selection 4

Commission which writ petition is being treated as a

leading writ petition. The facts and claims made by

writ petitioners in all these petitions being based

on same ground, it shall be sufficient to refer to

pleadings in writ petition No.227 of 2019 for deciding

all the writ petitions. There has been a checkered

history of litigation with regard to selection to the

post of Sub-Inspector conducted in the State of Bihar.

2. Brief facts and sequence of the events giving rise to

the writ petitions need to be noted first: -

i. An Advertisement No.704 of 2004 was issued by Bihar

Staff Selection Commission (hereinafter referred

to as ‘Commission’) for appointment of 1510 posts

of Sub-Inspector in the State of Bihar. The

Physical test and thereafter written examination

were part of the process of selection. Physical

Test in pursuance of 2004 selection was held in

the year 2006 and those selected were permitted to

take written examination in the year 2008. The

result was declared on 30.05.2008.

ii. There were certain mistakes in model answers with

regard to which writ petitions were filed in the 5

Patna High Court challenging the result. The

Commission appointed an expert Committee and re-

scrutinizes the answer sheets. consequently, 160

originally selected candidates were required to be

removed. The State Government decided to retain

160 originally selected candidates also.

Consequently, 639 more vacancies were added to

accommodate 160 originally selected candidates and

to maintain the roster.

iii. The candidates still unsatisfied regarding

correctness of some answers and increase of

vacancies by 639, filed writ petitions in the High

Court and ultimately the matter was carried to this

Court in C.A.Nos.1240-1241 of 2011 with connected

appeals. This Court noticed that requisition for

appointment of 299 posts of Sub-Inspector of Police

has been received to the Commission from the State

Government. This Court directed the Commission to

hold fresh examination for 299 posts of Sub-

Inspector and only those appellants who were writ

petitioners before the High Court or pending before

the High Court (Total-223 as per list given in the 6

Court) are at liberty to appear in the Physical as

well as written examination. The appeals were

decided on 02.02.2011 issuing the above direction

to the Commission.

iv. Subsequently, this Court vide order dated

28.11.2011 after considering various IAs filed in

the decided appeals permitted all the applicants

who are similarly situated to those candidates who

are eligible to appear in the examination for 299

posts of Sub-Inspector. It is useful to quote

following portion of the order:-

“...By the aforesaid order dated 2nd February, 2011, we had permitted only 223 candidates to appear in the examination. But now, after perusing the applications and hearing the counsel for the parties, we deem it appropriate to permit all these applicants who are similarly situated and also those candidates who are eligible, to appear in the examination for 299 posts of Sub-Inspector of Police. Uniform standard would be made applicable to all the candidates and all the candidates appearing for the above post will have to undergo similar physical and the written examination.”

v. For filling of 299 posts, advertisement No.704/511

dated 28.06.2011 was issued in pursuance of this 7

Court’s order dated 02.02.2011. The advertisement

provided for selection process which consist of: -

a) Physical standards and examination;

b) Written examination.

The candidates declared successful in Physical

test were required to undertake an Objective type

examination.

vi. As noted above, in pursuance of Selection of 2004,

result of select list of 1510+639 i.e. 2149 was

declared and the appointments were made. The High

Court in a writ petition issued a further direction

to appoint 67 candidates belonging to most backward

category who were wrongly left out. The State

appointed those 67 and to retain those who were to

be displaced decided to appoint 186 more

candidates. There was challenge to appointment of

186 candidates in the High Court and the matter

ultimately came to this Court where this Court on

15.08.2005 directed to maintain status quo.

vii. In separate selection for 299 posts in view of the

clarification dated 28.11.2011, 2479 candidates 8

were required to undertake the selection process.

This Court in C.A.Nos.2795-2797 of 2017 and other

connected matters had passed order to proceed with

the Physical test vide order dated 05.05.2017. It

was brought to the notice of this Court that only

2192 candidates turned up for selection for

Physical test out of which only 232 qualified and

in the process of selection of 299 posts ultimately

only 97 candidates were finally selected. This

Court had permitted appointment of those 97

candidates selected and also 186 candidates whom

the State decided to appoint to accommodate 67 OBC

candidates.

viii. The large number of candidates who had applied in

pursuance of advertisement No.511 of 2011 did not

appear for Physical test and most of them who

appeared were declared fail. All the writ

petitioners are the candidates who had applied in

pursuance of Advertisement No.511 of 2011 who

either did not participate in the Physical test or

participated and failed. This Court on 14.09.2017

in C.A.Nos.2795-2797 of 2017 has directed that 1035 9

candidates who did not turned up for selection be

subjected to Physical test which number also

included 133 candidates if not otherwise included.

ix. Contempt Petitions were filed in C.A.No.2805 of

2017 and C.A. Nos.2806-2810 of 2017 which appeals

were disposed of on 14.09.2017 along with

C.A.Nos.2795-2797 of 2017. This Court referred to

its order dated 08.05.2017 and took the view that

this Court having carved out and classified 133

candidates into a specific category and placed them

along with 186 candidates, there cannot be any

other procedure for 133 candidates except the

Medical examination. This Court took the view that

133 candidates should not be permitted to take

another written test and Physical efficiency test.

The said order was passed in exercise of

jurisdiction under Article 142 of the Constitution

of India and was stated to be not treated as a

Precedent.

x. Certain applicants had also filed applications for

impleadment in the Contempt who were permitted to 10

make representations before the Competent

Authority who was directed to decide the said

representation. 133 candidates who were referred

to in the order of this Court and on 24.10.2018

were not subjected to Physical test and were given

appointment as Sub-Inspector of Police in pursuance

of Advertisement No.511/2011. After appointment of

133 candidates who were not subjected to physical

test, the petitioners in these writ petitions

submitted representation to the Commission and the

Government claiming that they as well as 133

candidates were all part of list of 223 original

candidates who were permitted to participate in

selection against 299 posts by order of this Court

on 02.02.2011, the benefit of not undergoing

Physical test which was extended by this Court to

133 candidates should also be extended to the

petitioners and the petitioners should also have

been appointed as Sub-Inspector of Police as 133

candidates have been appointed. Various

representations were given by petitioners. The

representations submitted by the petitioners were 11

not acceded to. Hence the petitioners have filed

these writ petitions. In W.P.No.227 of 2019

following is the prayer made by the writ

petitioner: -

“PRAYER It is therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to:

(a) Issue writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to issue appointment letters to petitioner in parity with 133 candidates who were part of original 223 candidates/petitioners, as directed by this Hon’ble Court vide order dated 02.02.2011 I Civil Appeal No.1240-44 of 2011.

(b) Issue writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to subject the petitioners to the same test i.e. medical test as has been undergone by 133 candidates, who have been issued appointment letters and are now undergoing training.

(c) Pass any further order or directions, which this Hon’ble Court deems fir and proper in the facts and circumstances of the case and in the interest of justice.

AND FOR THIS ACT OF KINDNESS THE PETITIONERS AS ARE DUTY BOUND SHALL EVERY PRAY.

12

Drawn by Filed by

M.M.Singh Rameshwar Prasad Goyal Advocate Advocate for the Petitioners

Drawn on: 15.1.2019 Filed on: 24.01.2019”

3. In the Counter Affidavit filed by the State, it has

been stated that petitioners are not entitled for

appointment as Sub-inspector of Police nor they can

claim any parity with 133 candidates who were treated

as Special category by this Court in whose favour

order was passed under Article 142 of Constitution of

India specially mentioning that the Order of directing

for their appointment shall not be treated as

Precedent. It has been further stated that the

petitioners either failed in the Physical test or have

not undertaken the Physical test in pursuance of

Advertisement No.511/2011, hence, they have no claim

for being appointed. The exception which was carved

out for 133 candidates by this Court cannot be claimed

by all candidates who could not succeed in Selection

against 299 posts of Sub-Inspector of Police. 13

4. The Commission has also filed a counter affidavit

where it has been pleaded that after order of this

Court dated 20.04.2017 and 08.05.2017, total 3227

candidates were found eligible to appear in Physical

test and only 2192 candidates turned for selection.

In paragraph 10(G), following has been pleaded: -

“10.G. That in compliance to the orders dated 20.04.2017 and 08.05.2017 passed by this Hon’ble Court total 3227 candidates were found eligible to appear in physical test and 2192 candidates turned up for selection, 232 cleared the physical test and finally 97 of them cleared the written examination. It appear that the present Writ Petitioners either had not participated in the Physical or Written Test and if they participated then they had not succeeded in the tests conducted by the Respondents.”

5. Shri Jayant Bhushan, learned senior Advocate has

led the arguments on behalf of the petitioner

appearing for petitioner in Writ Petition No.227 of

2017. Shri Bhushan submits that under orders of this

Court dated 02.02.2011 for selection against 299

posts, a list of 223 candidates was given in which

list all the writ petitioners in this bunch of cases

were included as well as 133 candidates who were 14

directed to be appointed by this Court without

undergoing any physical test.

6. It is submitted that 133 candidates had claimed the

parity with 186 candidates who were decided to be

appointed by State of Bihar without subjecting to

any test, same benefit ought to be extended to the

petitioners also they being similarly situated to

133 candidates who were directed to be appointed as

against selection for 299 posts of Sub-Inspector.

7. Shri Bhushan submits that although petitioner did

not appear in the Physical test in pursuance of

Advertisement no.511/2011 but posts are still

available on which they can be appointed. Shri

Bhushan submits that there are still 67 posts vacant

on which all the petitioners can be accommodated.

8. Smt. Aishwarya Bhati, Senior Advocate, appearing

for some of the petitioners adopting the arguments

of Shri Bhushan contends that when the exemption was

granted to 133 candidates since they had cleared

physical test in pursuance of 2004 selection, the 15

petitioners in these petitions should also be given

the same.

9. Shri Chinmay Pratap Sharma, learned counsel,

submits that petitioners were all subjected to

physical test in pursuance of 2004 selection and who

want to take benefit which has been extended to 133

candidates of not participating in the physical test.

10. Shri Amit Pawan submits that petitioners belong

to same group in 2011 selection. He submits that some

of the petitioners have more marks than 133

candidates.

11. Shri Kundan Kumar Mishra, Shri Anand Nandan and

other counsel for the petitioners adopted the same

argument.

12. Learned counsel appearing for the Commission

submits that order dated 24.10.2018 of this Court

was confined to only 133 candidates and this Court

having clearly stated that the order shall not be

treated as precedent, no other person can claim same

benefit. He reiterated that the petitioners are the 16

candidates who either did not appear in the physical

test in pursuance of 2011 selection or participated

and failed. Since their names were not included in

select list of 97 which select list was prepared

after conducting the physical test and the written

test.

13. We have considered the submissions of learned

counsel for the parties and have perused the record.

14. All the writ petitioners are claiming appointment

to the post of Sub-Inspector in pursuance of

Advertisement dated 28.06.2011 for 299 posts of Sub-

Inspector of Police. The Commission has

categorically pleaded that all the petitioners in

this batch of writ petitions are candidates who

either did not participate in the physical test for

the selection against 299 posts or they participated

and failed. While hearing Contempt Petition No.14-18

of 2018 in C.A.Nos.2806-2810 of 2017, this Court with

regard to 133 candidates has made following

observations: -

17

“...After hearing the persuasive arguments of Mr. Shivam Singh, learned counsel for the respondents, we find it difficult to see any contumacious conduct on the part of the respondents. However, we feel that in the interest of justice the dispute needs a little clarification so that there can be a quietus to the long-drawn litigation. At the paragraph 10 of our judgment dated 14.09.2017, we made it clear that 133 candidates shall also form part of the 1035 candidates referred to in the judgment at paragraph 9. The only dispute now remains is whether those 133 candidates who had cleared the physical efficiency test conducted in the year 2006 should now be subjected to the physical efficiency test, for the implementation of our judgment dated 14.09.2017. It is not in dispute that in respect of selection to the post of sub-inspectors commenced in the year 2004, in the case of 186 candidates, they were subjected only to medical fitness test in the process of appointment since they had already cleared the physical efficiency test in the year 2006. Mr. Shivam Singh, learned counsel submits that this was only in pursuance to orders passed by the High Court and this Court.

We do not find any justification in taking a different stand in the case of 133 candidates who also have cleared the physical efficiency test in the year 2006. Therefore, at the time of their process of appointment in the year 2017/2018, they need only to be subjected to the same test undergone by 186 candidates...” 18

15. Further in its order dated 24.10.2018, this Court

in Contempt Petition No.1711 of 2018 in Contempt

Petition(C) No.22 of 2018 in C.A.No.2805 of 2017

passed following order in paragraph 4: -

“4. Therefore, we do not find any justification to reopen the order and permit the State and the Selection Commission to subject those 133 candidates to another written test and physical efficiency test, which, of course, is the normal procedure. This Court having carved out and classified 133 candidates into a specific category and placed them along with 186 candidates, there cannot be any other procedure than the medical examination.

Therefore, to remove any doubt on this aspect, we make it clear that the only remaining process to be undergone by the 133 candidates is the process to which the 186 candidates were subjected to. The State and the Selection Commission are directed to complete the process positively on or before 01.11.2018 and issue the appointment orders subject, of course, to candidates passing the medical fitness test. We make it clear that this order and all the earlier orders regarding the selection and appointment of the 133 candidates are passed in the peculiar background of the litigation starting from the advertisement in the year 2004 and several rounds of litigations during the past fourteen years, in exercise of our jurisdiction under Article 142 of the 19

Constitution of India and the same shall not be treated as a precedent.”

16. This Court made it very clear that order of this

Court regarding selection and appointment of 133

candidates are passed in peculiar background of

litigation in exercise of jurisdiction under Article

142 and the same shall not be treated as a Precedent.

17. The petitioners are claiming that they should be

extended the same benefit of not being subjected to

physical test as the exemption was granted with

regard to 133 candidates. There is more than one

reason for not accepting the claim of the

petitioner. Firstly, there has been specific order

with regard to 133 candidates for not subjecting

them to the physical test and directing their

appointment without physical test which this Court

had categorically held to be not treated as

Precedent. The order when specifically held that it

may not be treated as Precedent, no benefit can be

claimed of the said order by the writ petitioner in

the present writ petitions especially when otherwise 20

the writ petitioners are not able to satisfy this

Court that when they have either not undertaken the

physical test or failed in the physical test, why

they should be given appointment as Sub-Inspector

of Police at this stage.

18. The Counter affidavit filed by the Commission

categorically states that for selection against 299

posts, 2192 candidates turned up for selection and

only 232 cleared the physical test. The order dated

14.09.2017 of this Court passed in C.A.Nos.2795-

2797 of 2017 has also noticed the number of the

candidates who were to subjected to the process of

selection for 299 posts which number was mentioned

2479 candidates. From the order dated 14.09.2017 of

this Court, it is further clear that 1035 candidates

did not turned up for selection, this Court directed

for them also to be subjected to physical test,

thus, there are large number of candidates who did

not take physical test or took the physical test and

failed. Directing for appointment of all those

candidates which includes the petitioners also who 21

did not take the physical test or took the physical

test and failed shall be an unending process and

there are more than thousand of such candidates who

may claim that although they did not take physical

test or failed in physical test in pursuance of

selection of 299 posts, they should be appointed

they being similarly situated to 133 candidates.

19. This Court has further passed an order on

01.11.2018. It is also relevant to notice that

several candidates some of which are petitioners

before us has also filed the impleadment application

in Contempt Petition No.1711 of 2018 in C.A.No.2805

of 2017 which application were rejected on

01.11.2018 and in order dated 01.11.2018, it had

although been observed that the applicants are free

to make representation appealing to the good

conscience of the State of Bihar and the State of

Bihar is free to consider the same but in event if

the representation are rejected, it shall not give

rise to any proceeding/appeal in any of the Courts.

Following observations are made in this regard: - 22

“...Mr. S.Nagamuthu, learned senior counsel, and other counsel appearing for some of the intervenors/applicants, pray for the same relief which is granted to 133 candidates.

The said applicants are free to make representations appealing to the good conscience of the State of Bihar. The State of Bihar is free to consider the same and pass appropriate orders in accordance with law. In case such representations are made by the intervenors/applicants within one month from today, appropriate orders may be passed by the state on those representations within three months thereafter. However, we make it clear that even if their representations are rejected, it will not give rise to any proceedings/appeal in any of the Courts.”

20. The Court thus by order dated 01.11.2018 clearly

indicated that in event the State of Bihar does

not accede to the representation of applicants

claiming similar relief to 133 candidates that

shall not give rise to any proceedings in any of

the Courts. We are not persuaded to grant the said

relief in these proceedings under Article 32 of

the Constitution.

23 21. In view of the foregoing discussion, we are of the

view that the petitioners are not entitled for the

reliefs as claimed in the writ petitions. All the

writ petitions are dismissed.

..........................J. ( ASHOK BHUSHAN )

..........................J. ( M.R.SHAH )

..........................J. ( V.RAMASUBRAMANIAN ) NEW DELHI, JUNE 11,2020