TARAM DHAWAJ vs STATE OF U. P. - 2009 Supreme(All) 3314

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(All) 3314

[2009(9) ADJ 176]
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL, J.
TARAM DHAWAJ AND OTHERS ....Petitioners
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Writ Petition Nos. 48688, 49660, 54208, 51946, 46535, 49796, 48523, 44280, 58353, 53126, 58355, 52250, 50399, 47395, 51388, 55898, 53846, 44043, 47752, 53912, 45014, 48041, 49167, 50372, 55007, 55008, 51789, 52454, 51797, 51800, 51799, 53156, 53155, 54097, 47338, 56388, 52248, 53200, 69477, 52855, 62456 of 2006, 6602 of 2007, 4520, 11548 of 2006, 2108, 10024 of 2007, 53336, 53106, 54235, 47882 of 2006, 9913 of 2007, 52703, 52197, 67089, 50270, 49161, 47039, 51238, 54939, 53834, 59463, 54135, 55732, 61447, 51008, 51240, 53678, 48476, 53769, 44901, 50430 of 2006, 988 of 2007, 56455, 51406 of 2006, decided on 13th October, 2009)

Advocates:
Counsel :
Girish Tiwari, M.L. Rai, K.C. Shukla, Girijesh Tewari, Om Prakash Tripathi and D.K. Singh for the Petitioners; S.C. for the Respondents.

Headnote:(A) Judicial review—Scope of, in writ petitions, challenging selections on grounds of lack of transparency and extraneous considerations—Law relating to—Examined and found that scope of judicial review is limited and approach of Court is entirely different from an ordinary appeal—Grounds on which judicial review is permissible—Classified—If impugned decision is given on probable and reasonable view—It cannot be interfered with, in exercise of powers of judicial review. [Constitution of India, Article 226]. [Paras 67 to 71]
       (B) High Court’s observations—Writ petitions challenging selections/appointments, on grounds of unfairness, lack of transparency, political pressures, partiality and extraneous considerations—Increasing and flooding—It is causing lack of confidence in general public and creating alarming situations—Government should consider this fact at a high level scale and punish those officers who are found responsible—It was found surprising that these powerful and mighty responsible officers are escaping from clutches of rule of law—High Court expressed its dissatisfaction on such situation and stressed need of taking serious view of this factual aspect. [Paras 64 and 65]
       (C) Appointment—Selection process—Post of Assistant Radio Wireless Operator in U.P. Police—Challenged on ground of unfairness, favouritism, corruption, political pressure or lack of transparency and extraneous considerations—Court has to proceed in such matters with great care—Although a strong atmosphere of suspicion was created by petitioners—But High Court found that this suspicion could not cross demarcating line and enter into proof area—In absence of proof, mere suspicion howsoever strong may be, cannot replace proof—There were absence of proper pleadings and materials to substantiate allegations made by petitioners—Court will not act as an investigating agency for benefit of a party—Plea of mala fide, benefit of ex-service quota reservation and violation of mandatory requirements of procedure—Not substantiated—High Court, therefore, refused to interfere with impugned appointment. [U.P. Police Radio Subordinate Service Rules, 1982—Rule 15(2)(B)—Constitution of India—Article 226]. [Paras 77, 80, 82, 87, 88, 96, 97, 100, 103, 104, 112 and 116 to 123]

JUDGMENT

Hon’ble Sudhir Agarwal, J.—Writ Petition No. 48688 of 2006 (hereinafter referred to as the “1st set”) filed by six petitioners, namely, Taram Dhwaj, Brijesh Kumar Singh, Amar Nath Yadav, Rajesh Kumar, Vinod Kumar and Gajendra Singh, seeking writ of mandamus commanding the respondents to appoint them on the post of Assistant Radio Wireless Operator against the vacancies advertised on 7.9.2001 and 25.4.2005 and also to quash the selection process/result and appointment already made on the post of Assistant Radio Wireless Operator.

2. The case of the petitioner is that they are Ex-servicemen retired from various armed forced on various dates in the year 2001-02-03. The State Government vide Government Order dated 28th July, 1999 has provided 5% reservation for Ex-Serviceman vide advertisement dated 17.9.2001. The respondents advertised 890 vacancies of Assistant Radio Wireless Operator (hereinafter referred to as A.R.W.O). However, above selection could not be materialised and subsequently vide advertisement dated 15th September, 2004 further 170 vacancies of A.R.W.O. were advertised. The said selection also did not proceed and third advertisement was published on 14th May, 2005 advertising 1061 vacancies of A.R.W.O. wherein 530 posts for general category, 287 posts for other backward class (hereinafter to be referred as “O.B.C.”), 220 posts for Scheduled Caste (hereinafter to be referred as “S.C.”), 21 posts for Schedule Tribe (hereinafter to be referred as “S.T.”).

3. The pre-examination was held on 9th April, 2006, physical test held on 4th April, 2006 and 9th July, 2006, written test was held on 30th July, 2006 and interview was held in between 18th August to 23rd August, 2006. However, the petitioners have not been finally selected and have not been given benefit of 5% reservation of Ex-Serviceman. Selection has been held illegally. There is lack of transparency inasmuch as marks obtained by candidates have not been disclosed and selection of chosen candidates have been made without following the policy of reservation.

4. Sri Girish Tiwari, learned counsel for the petitioners has submitted that since the petitioners belonged to reserved category, they were entitled to be selected against the vacancies meant for Ex-Serviceman and the respondents have denied the said reservation to the petitioners and have acted illegally.

5. Respondents have filed counter affidavit stating that the recruitment in question was that of A.R.W.O., governed earlier by U.P. Police Radio Subordinate Service Rules, 1982 (hereinafter referred to as “Rules, 1982”) and which has now been amended by U.P. Police Radio Adhinastha Sewa (Second Amendment) Niyamwali, 2005 (hereinafter referred to as “Amending Rules 2005”). It is stated that 890 vacancies of A.R.W.O. were advertised in the year 2001 but due to administrative reasons selection process remained in abeyance till 2004. In the meantime 170 vacancies further became available which were advertised by the advertisement of 2004. The said selection also could not proceed. In the meantime 1982 Rules were amended by “Amending Rules 2005” which came into force on 31st March, 2005. In the light of the Amending Rules, 2005, the advertisement was published in 2005 for total numbers of 1061 vacancies of A.R.W.O. The selection thereafter has been completed in accordance with above Rules and due weightage of Ex-Servicemen quota has been extended to successful candidates in that category on the basis of their performance and merits. The petitioner could not be selected due to their inferior performance.

6. The petitioners have not filed any rejoinder affidavit.

7. The writ petition No. 49660 of 2006 (hereinafter referred to as the “2nd Set”) has been filed by four petitioners namely, Narendra Kumar (Roll No. 2005-112538), Mahesh Chandra Yadav (Roll No. 2005-321260), Km. Ranjana Singh (Roll No. 2005-017884) and Km. Anupama Agarhari (Roll No. 2005-017915), praying for issuance of writ of certiorari quashing t

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2009 Supreme(All) 3314

Cases Referred (21)

Judicial Analysis