C.W.P No. 7620 of 2009 ::1:: IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.W.P No. 7620 of 2009 Date of decision : May 20, 2009. Dinesh Kumar ... Petitioner. Versus State of Haryana and others, ... Respondent. *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. R.K.Malik, Sr. Advocate with Mr. Yashdeep Singh, Advocate for the petitioner. *** 1. Whether Reporters of local newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) This is a second round of litigation. The petitioner had applied for the post of Constable in the year 2007. Since he was not selected, he earlier filed CWP No. 4567 of 2009 which was disposed of on 23.3.2009 in the following terms :- “ The only contention of learned counsel for the petitioner is that in the physical test the petitioner was entitled to 20 out of 20 marks and not 18 and that the appellate authority has not considered this factual aspect while passing order Annexure P-3 and has considered as if the petitioner has rightly been awarded 18 marks I find C.W.P No. 7620 of 2009 ::2:: that the order indeed reflects this. In the circumstances, this writ petition is disposed of with a direction to respondent No.3 to consider the factual aspect of the representation indicated above and pass a fresh order within a period of four weeks from the date of receipt of a certified copy of this order. Needless to say in case the petitioner is found entitled to appointment he would be given all consequential benefits.” The allegation in the said writ petition as well as in the present writ petition is that the petitioner's marks in the physical efficiency test has not been rightly granted. Pursuant to the order dated 23.3.2009, respondent No.3 has passed the impugned order (Annexure P-5) by holding as follows :- “ The petitioner has completed physical efficiency test of 100 meter race in 14.22 second and was rightly awarded 3 marks as he had completed this race less than or equal to 14.5 seconds but more than 13.5 seconds. In Physical Efficiency test-II he had secured 5 marks in 800 meter race as he had completed this race in 2.28 minutes which is less than 2 minutes 30 seconds. In physical Efficiency Test-III he had secured 5 marks as he had jumped 15 feet in long jump. In physical efficiency test- IV he had secured 5 marks as he had jumped 4 feet in high jump. Thus, his total marks come to 3+5+5+5=18 marks. C.W.P No. 7620 of 2009 ::3:: Keeping in view of above facts on record and directions of the Hon'ble High Court to consider the factual aspect of the representation, there is no merit in the representation as he had completed 100 meter race in 14.22 seconds which is less than 14.5 seconds for which he is eligible for only 3 marks and therefore the representation is filed.” Counsel for the petitioner has argued that respondent No.3 has misconstrued the order of this Court. As per him, under the order of this Court it was incumbent upon respondent No.3 to personally time the petitioner in a 100 meter race since that would have been the only sure-way of ascertaining whether the petitioner was entitled to 5 or 3 marks. In my opinion, this argument is fallacious. It is trite that any performance particularly in the sports arena can vary from day to day. As per the record, the petitioner's performance on the day of physical test in the year 2007 was that he had run 100 meter race in 14.22 seconds. Even if the petitioner can run 100 meter in less than 13.5 seconds today it cannot be said that on the day of the test he had also run the same race in less than 13.5 seconds. In my opinion, the factual aspect which had to be considered by respondent No.3 was in the matter of re-examining whether the petitioner had been rightly graded on the basis of his performance. Counsel for the petitioner has argued that the petitioner had been given less marks only to accommodate other persons. However, there is no specific allegation in this regard either in the writ petition or in the representations moved. In the circumstances, the contention that the interpretation of the term `factual aspect' to the extent of having re-test is C.W.P No. 7620 of 2009 ::4:: too broad by half. A course like that suggested by counsel for the petitioner may have been resorted to in the event of there being some documented instance of mala fide against the selection committee. To hold that in all cases where there is an allegation that the petitioner's performance has not been correctly judged, the necessary correction could only be by re- examining such person would, in my opinion, ultimately end in rendering the selection committee otiose because in every case, un-successful candidate would make such an allegation and then try to improve his performance on the day of re-test. In my opinion, this cannot be the intention of the rule making authority. Consequently, this writ petition is dismissed with no order as to costs. ( AJAY TEWARI ) May 20, 2009. JUDGE `kk'