NIRBHAY KUMAR Vs. STATE OF BIHAR
LAWS(SC)-2020-6-10
SUPREME COURT OF INDIA
Decided on June 11,2020

Nirbhay Kumar Appellant
VERSUS
STATE OF BIHAR Respondents

JUDGEMENT

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 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 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 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 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 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 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 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 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.

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.
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