IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 575 of 2008 (S/S) Dan Singh Mehta and others ..……… Petitioners Versus State of Uttarakhand and others ……… Respondents Mr. U.K. Uniyal, Senior Advocate assisted by Mr. Shobhit Saharia, Advocate for the petitioners. Mr. S.N. Babulkar, Advocate General assisted by Mr. Subhash Upadhyaya, Brief Holder for the respondents. Mr. D.S. Patni, Advocate for the interveners. Hon’ble Tarun Agarwala, J. Heard Shri U.K. Uniyal, the learned Senior Counsel duly assisted by Shri Shobhit Saharia, the learned counsel for the petitioners, Shri S.N. Babulkar, the learned Advocate General duly assisted by Shri Subhash Upadhyaya, the learned Brief Holder for the respondents/State of Uttarakhand and Shri D.S. Patni, the learned counsel for the interveners. After the formation of the State of Uttarakhand, an exercise was taken to fill up the post of Sub Inspectors from the post of Constable and Head Constable in civil police. Since relevant rules were not framed by the State of Uttarakhand, the State Govt. directed the Police Deptt. to proceed with the selection process on the basis of the Government Orders and Circulars issued by the State of U.P. A circular dated 15th March, 2007 was issued by the Additional Director General of Police (A.D.G.P.) giving guidelines for the procedure to be adopted in the departmental promotion to the post of Sub Inspector. Clause 6 of the circular, stipulated that the candidates who were successful in the written test would be required to undergo a screening test, namely, Instrumental Training (I.T.) and Physical Training (P.T.) to be 2 conducted by a Selection Board. In this circular, it was stipulated that the constitution of the Selection Board would be, namely, that the Chairman would be the Inspector General (I.G.) / Director General of Police (D.I.G.) and a member would be the Superintendent of Police (S.P.) / Commandant. Pursuant to this circular and Government Order dated 19th May, 1998 and 27th February, 1999, issued by the Government of U.P., the departmental promotion to the post of Sub Inspector was undertaken by the police department. The petitioners being eligible candidates applied and succeeded in the written test. Pursuant to Clause 6 of the circular dated 15th March, 2007, the petitioners appeared before the screening committee. The petitioners could not qualify and they failed and, being aggrieved by their failure in the screening test, the present writ petition was filed praying for quashing of clause (6) of the circular dated 15th March, 2007. The contention of the petitioners in the writ petition is, that the I.T. / P.T. test could only be conducted in accordance with Government Order dated 19/05/1998 as modified by the Government Order dated 27th February, 1999 which provides for the formation of the Selection Board by the State Govt. and, consequently, the constitution of the Selection Board by an executive order of the A.D.G.P. was wholly illegal and without jurisdiction. The learned counsel for the petitioners submitted that Clause 6 of the circular dated 15th March, 2007 issued by the A.D.G.P. was contrary to the Government Order dated 19th May, 1998 and 27th February, 1999 and that the executive instructions could not over ride the Government Order which has been issued u/S 2 read with Section 46 (2) (c) of the Police Act, 1861. 3 On the other hand, the learned Advocate General submitted that the petitioners are estopped from questioning the selection process. The petitioners participated in the selection process; they qualified in the written test and also appeared in the screening test and, after having failed in the screening test, the petitioners cannot turn around and question the constitution of the Selection Board or the procedure adopted in the selection process. The learned counsel submitted that the petitioners are estopped from questioning the selection process. The learned Advocate General further submitted that the circulars issued by the A.D.G.P. was in consonance with the Government Order dated 19th May, 1998 and that the executive instructions only clarified the Government Order dated 19th May, 1998 and this fact was dealt with and accepted by a Division Bench of this Court in the matter of Naresh Chandra Jakhmola and 50 others Vs. State of Uttarakhand and others in Special Appeal No.70 of 2008 decided on 19th February, 2010. Having heard the attractive arguments of the learned counsel for the parties, this Court is of the opinion that the petitioners are not entitled for any relief. The petitioners had appeared in the selection process without any protest. The petitioners did not question the validity of the Selection Board. Once the petitioners participate in the selection process, appear in the written test and, subsequently appear before the screening test and, could not qualify, cannot turn around and question the selection process vis-à-vis the constitution of the Selection Board. In my opinion, the petitioners are estopped and precluded from questioning the constitution of the Selection Board. This view of mine is fortified by a decision of the Supreme Court in Marripati Nagaraja and others Vs. Government of Andhra Pradesh and others, (2007) 11 SCC 522. Similar view was again held by the 4 Supreme Court in the matter of Madan Lal and others Vs. State of J.&K. and others, (1995) 3 SCC 486 and Dhananjay Malik and others Vs. State of Uttaranchal and others, (2008) 4 SCC 171. In the light of the aforesaid, this Court is not inclined to accept the contention of the learned counsel for the petitioners on the question of the validity of the constitution of the Selection Board pursuant to the circular dated 15th March, 2007. The learned counsel for the petitioners submitted that pursuant to the interim order of this Court, the petitioners were allowed to participate in the selection process inspite of having failed in the screening test and, subsequently, by an interim order of the Court their results were declared and the petitioners have been promoted to the post of Sub Inspector and are working on the said post for the last one year. The learned counsel submitted that since the petitioners have qualified and promoted to the post of Sub Inspectors, they should not be disturbed and should be allowed to continue as Sub Inspectors. In support of his submission, the learned counsel placed reliance upon a decision of the Supreme Court in the case of Tridip Kumar Dingal and others Vs. State of West Bengal and others, (2009) 1 SSC 768, A.P. Public Service Commission Vs. K. Sudharshan Reddy and others (2006) 5 SCC 505 and V.N. Sunanda Reddy and others Vs. State of A.P. and others, 1995 Supp (2) SCC 235, wherein the Supreme Court held that it would be inequitable to set aside the appointments of the candidates selected who were working since long. Having pondered over the submissions of the learned counsel for the petitioners on this aspect of the matter, the Court 5 finds that by an interim order dated 8th August, 2008, the Court permitted the petitioners to provisionally appear in the examination and that the examination would not be declared without the leave of the Court. The Court further made it clear that the provisional permission to appear in the examination was entirely at the risk and responsibility of the petitioners. Subsequently, by an order dated 20th October, 2008, the Court directed the respondents to declare the results and to appoint the petitioners on the promotional post, if they were selected. The Court, however, made it clear that the appointments would be subject to the decision of the writ petition. In the light of the aforesaid, this Court is of the opinion that the permission granted to the petitioners to appear further in the selection process was entirely at the risk and responsibility of the petitioners. The declaration of the results and the selection on the promotional post was subject to the decision of the writ petition. The petitioners chose the said risk and since they could not qualify at an intermediate stage, the Court is of the opinion that the said advantage cannot be permitted to be given to the petitioners when in similar circumstances, there would be other candidates who had also became unsuccessful in the screening test. In the light of the aforesaid, the Court is of the opinion that since the petitioners could not qualify the screening test, they became ineligible for further consideration on the promotional post and, therefore, cannot be allowed to continue. In the light of the aforesaid, this Court does not find any merit in the writ petition and is dismissed. In the circumstances of the case, parties shall bear their own cost. Dated 21.04.2010 Shiv (Tarun Agarwala, J.)