WP(C)No.7164/2005 Page 1 of 19 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (C) No. 7164/2005 Reserved on : 15.12.2008 % Date of decision: 19.12.2008 SATVIR SINGH …PETITIONER Through Mr.Kamal Mehta, Advocate Versus UNION OF INDIA & ORS. …... RESPONDENTS Through Ms. Jyoti Singh with Mr.Aditya Chhiber and Mr.Yadunath Singh, Advocates CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‟BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? MOOL CHAND GARG, J. 1. The petitioner participated in a selection process for recruitment for the post of Assistant Commandant in Central Police Organization (CPOs) held by the Ministry of Home Affairs through a specially Constituted Selection Board by way of direct recruitment. The selection Board was constituted under the second respondent for the year 2002. The petitioner was an OBC candidate. 2. Pursuant to a public advertisement, the petitioner applied and was called for written examination held on 02.03.2003. In the written examination, the petitioner was declared successful as per the WPC 7164/2005 Page 2 of 19 communication sent by the Secretary of the special Selection Board on 15.09.2003. The said communication asked the petitioner to participate in a Physical Efficiency Test (PET), interview and medical examination on 22.3.2004. 3. It appears that travails of the petitioner started thereafter, inasmuch as before conducting his PET, the petitioner was called for measurement of height, weight and chest measurement. In so far as height and chest is concerned, the petitioner met the minimum requirement but when the weight of the petitioner was taken, it is alleged, that for ulterior motives the officer who was entrusted with this responsibility made a wrong endorsement in respect of weight measurement in violation of the established procedure and the gazette notification. Even though the weight of the petitioner was within the prescribed standards being less than 71 Kg, the officer recorded that the petitioner was over-weight. He was also rude and curt and asked the petitioner to leave immediately. 4. The petitioner then filed a writ petition before this Court being WP(C) No.11298/2004. Along with the writ petition, the petitioner annexed the material in support of his allegation that he was discriminated against. This Court vide order dated 19.07.2004 directed the respondents to forthwith allow the petitioner to appear before the Board conducting the PET and to examine the petitioner once again so as to ascertain as to whether the petitioner in fact was over-weight. 5. Pursuant to the directions of the Division Bench of this Court WP(C)No.7164/2005 Page 3 of 19 dated 19.07.2004, the PET was carried out and the petitioner was found to be eligible for taking further tests and accordingly vide order dated 04.10.2004 passed in W.P.(C) No. 11298/2004, respondents were directed to allow the petitioner to take further tests which were necessary for the purpose of recruitment for the post. The said order is reproduced hereunder: “Heard the learned counsel appearing for the parties. The present petition was filed by the petitioner praying for a direction to the respondents to allow the petitioner to re- appear in the medical examination including re-measurement so that the petitioner could be considered for recruitment to the post of Assistant Commandant in the Central Police Organization. The petitioner herein qualified in the written examination that was held by the respondents. Although the petitioner qualified in the said written examination held for the purpose of recruitment to the post of Assistant Commandant yet the petitioner was disqualified on the ground of being over-weight in the measurement test held prior to the petitioner taking his physical efficiency test. Since the petitioner was disqualified being over-weight, he was not allowed to appear in the physical efficiency test. Upon going through the records and considering the entire facts and circumstances of the case, an order was passed by this Court on 19th July, 2004 allowing the petitioner to appear before the medical board, conducting the physical efficiency test, for medical examination of the petitioner and also to take his physical measurements once again so as to ascertain whether the petitioner was, in fact, over-weight. Pursuant to the said order, the petitioner once again appeared before the medical board and he was examined by the said medical board. After the said physical measurement/physical efficiency test the petitioner was not only found to be within the permissible limit of weight but he has also qualified and passed the physical efficiency test. In view of the aforesaid position, it is ordered that the petitioner should be allowed to take further tests, which are necessary for the purpose of recruitment to the aforesaid post. If the petitioner qualifies in the said test and is found suitable in all respects and subject to his satisfying all other requirements, his case shall be considered for recruitment to one of such posts, which were advertised by the respondents. It is, however, made clear that this order is passed in the peculiar facts and circumstances of this case and the same shall not be treated as a precedent in any other case. Petition stands allowed to the aforesaid extent and is disposed of in terms of the aforesaid order. Copy of this order be given DASTI to the counsel appearing for the parties.” WPC 7164/2005 Page 4 of 19 6. Despite the aforesaid order, the petitioner was not called for interview by the respondents, which was the next step towards selection. The petitioner then filed a contempt petition bearing CCP No. 45/2005, notice thereof was issued to the respondents, who filed reply to the contempt petition and also preferred a review petition against the order dated 04.10.2004. The same was dismissed by this Court vide order dated 11.02.2005 and directions were issued to the respondents to comply with the order dated 04.10.2004 in letter and spirit. The said order dated 11.02.2005 passed by a Division Bench of this Court is reproduced for the sake of reference: “R.A.21/2005 in W.P.(C) 11298/2004 This review petition is filed by the respondents contending, inter alia, that the judgment and order dated 4th October, 2004 is required to be review in view of the fact that there were 304 candidates, who were rejected on the ground of physical measurement, out of which 66 similarly situated cases as that of the writ petitioner were rejected on the ground of over-weight/under weight. It is submitted that in case the said judgment is allowed to stand, the same would create administrative difficulties and complications for the respondents. We have heard the learned counsel appearing for the parties on he said application. In para 17 of the counter affidavit, it is stated that from 2002 and onwards measurement of weight is done by Physical Efficiency Test Board only. In support of the said contention, a copy of the physical efficiency test chart and proforma prescribed y the Union Public Service Commission are annexed as Annexure R-6 and R-7 respectively. We have carefully perused the said annexures, which are relied upon by the respondents in their counter affidavit. Para 9.4 of the format annexed thereto indicates and clearly establishes that weight would not be disqualification at the stage of physical efficiency test. However, the same is required to be assessed for its disqualification during medical examination. In the present case, weight of the petitioner was measured before the petitioner could take the physical efficiency test. In terms of the said paragraph the respondents also could not have rejected the candidature at that stage and should have waited till medical examination. Having regard to the aforesaid criteria, which is prescribed, the petitioner could not have been declared as disqualified, at that stage, as the factor of weight should have been considered, according to the own case of the respondent, during medical examination. It is established from the records that at the relevant time when the weight of the petitioner was measured, the aforesaid WP(C)No.7164/2005 Page 5 of 19 proforma, prescribed by UPSC, was in operation and, therefore, the same is applicable to the facts and circumstances of the present case. Counsel appearing for the respondent, however, has drawn our attention to para 20 of the counter affidavit. In our considered opinion the said statements instead of helping the respondents further the case of the petitioner, as it is an admitted position therein that with effect from 2003 and onwards for filling up the post of CPFs (Assistant Commandant) examination, overweight is not being considered as disqualification at the stage of physical efficiency test but during medical examination the same could be considered as a disqualification. In that view of the matter, we are of the considered opinion that no review of our judgment and order is called for. The application has no merit and is dismissed. It is also reiterated that the order passed on 4th October, 2004 and this order are passed in the peculiar facts of the present case.” 7. That even thereafter the respondents instead of complying with the orders dated 04.10.2004 and 11.02.2005 did not call the petitioner for interview even though they made a statement during the course of contempt petition that the petitioner will not be prejudiced and steps will be taken to ensure that he is able to undergo the complete training. In these circumstances, the Division Bench again passed an order dated 18.03.2005 directing the respondents to comply with the earlier orders, which order is also reproduced for the sake of reference: “Counsel appearing for the respondents submits that the review petition filed by them against the judgment dated 4th October, 2004 has been dismissed. Adjournment is requested on behalf of the respondents on the ground that certified copy of the judgment has been applied for to enable the respondents to implement the same. Counsel for the respondents on instructions submits that a period of four weeks may be given to enable the respondents to implement the judgment and to place status report in that behalf before this Court. Accordingly, the respondents are given further period of four weeks for placing on record the status report of compliance with the judgment. It is pointed out on behalf of the petitioner that training of the Assistant Commandants in the B.S.F. and C.R.P.F. has already been started and that training in the I.T.B.P. has to commence shortly and the petitioner apprehends that his rights would be prejudiced on WPC 7164/2005 Page 6 of 19 account of delay. On the other hand, counsel for the respondents submits that the petitioner shall not be prejudiced and steps would be taken to ensure that he is able to undergo the complete training. Renotify on 18th March, 2005. Copy of this order be given dasti to the counsel for the parties.” 8. The petitioner thereafter was allowed to participate in the interview held on 14.03.2005. However, it is the case of the petitioner that when the petitioner went to participate in the interview he was shocked and surprised to face with a hostile atmosphere inasmuch as he was asked various uncomfortable questions about the litigation before this Court pursuant to filing of a writ petition about his physical measurement and was made to understand that filing of the case is not sufficient as it was an Interview Board which has all the powers to reject his candidature. 9. The petitioner also filed an application for holding an independent Interview Board without participation of the officials of BSF who were annoyed with the petitioner on account of his approaching this Court earlier but his application filed in this regard was allowed to be withdrawn as this Court vide its order dated 22.03.2005 was of the view that the petitioner may agitate his other grievance, if any, by filing a separate writ petition. 10. The petitioner filed W.P.(C) No. 5868/2005, however as the result had not been declared at that time, the petitioner withdrew that writ petition, which was termed as premature but liberty was granted to the petitioner to file a fresh petition after the result is declared. WP(C)No.7164/2005 Page 7 of 19 11. In an affidavit filed by the respondents to the earlier contempt petition dated 08.04.2005, it was informed that the petitioner could not make in the merit list in the interview held on 14.03.2005 and accordingly he could not be considered for the post of Assistant Commandant and it is thereafter, the petitioner filed the present writ petition. 12. Before us, it is the case of the petitioner that the respondents have ensured that the petitioner does not make it in the interview even though he otherwise made his mark, inasmuch as the total marks secured by him in the written examination were 157 which were much higher than many of the candidates who were selected. It was only in the interview he was given 92 marks out of 200 which also included overall assessment including other curricular activities where he was given only 15 out of 40 while almost every candidate was given higher marks. He could not be selected because he was given 249 marks, whereas the last selected candidate was given 251 marks. According to the petitioner, the mala fides of the respondents are writ large as the petitioner had been categorically informed even at the time of interview that since the petitioner had filed a writ petition about his measurement, he would not be successful. This also became clear when the fact of the petitioner having not made it, was not disclosed on the date of hearing of his earlier writ petition on 11.04.2005 even though the interview was held on 14.03.2005 basically to suppress and conceal the said fact from this Court, more so when the affidavit informing the result was sworn on 08.04.2005. WPC 7164/2005 Page 8 of 19 13. According to the petitioner, his apprehensions that he may not be selected and may be kept away by the respondents from the selection were found to be correct when the respondents disclosed the marks obtained by the petitioner in the interview board and, in particular, in respect of the extra-curricular activities, which ultimately deprived him from selection in the panel of OBC candidates just by two marks. 14. Earlier the petitioner was sought to be rejected by alleging that he was over-weight but after he was allowed to undertake the interview and was also sent for medical examination pursuant to an order passed by this Court in W.P.(C) No. 11298/2004, his merits after the interview has been wrongfully shown to be lower by granting him lesser marks in a criteria, i.e., in respect of his other extra-curricular activities despite the fact that he filled the concerned column in the form and placed on record his certificates about his participation in NCC and other activities. The others who did not even say anything in respect of that column about their curricular activities nor produced any certificates were given more marks than the petitioner so as to deprive the petitioner of the selection inasmuch as the last person appointed was granted 251 marks whereas the petitioner was granted 249 marks. This happened because more than 10 persons were granted 30 out of 40 in respect of extra-curricular activities, whereas the petitioner was only granted 15 without any rhyme or reason. It has been submitted that right from the beginning it has been the case of the petitioner that the interview proceedings held by the respondents qua the petitioner were highly prejudiced and it was apparent from day WP(C)No.7164/2005 Page 9 of 19 one that the petitioner will be kept out of the selection and would not be allowed to be successful ultimately. In these circumstances, the petitioner while filing the present writ petition made the following prayers: a) issue a writ of certiorari and/or any other appropriate writ, order or direction of the similar nature quashing the interview proceedings for the post of Assistant Commandant held on 14.03.2005 for interviewing the petitioner. b) issue a writ of certiorari and/or any other appropriate writ, order or direction of the similar nature quashing the declaration of the result pursuant to the interview held on 14.03.2005 whereby the petitioner is declared unsuccessful. c) issue a writ of mandamus and/or any other appropriate writ, order or direction in the similar nature directing the respondents to constitute the independent interview board de-hors the officials from the respondent No. 2 being the interested party in the entire dispute between the petitioner and the respondents. d) Such other or further orders and/or directions as this Hon‟ble Court may deem fit, just and proper. 15. The respondents have contested the proceedings by filing a counter affidavit solely on the ground that the petitioner was not able to secure enough marks so as to find a place in the merit list. 16. The respondents were directed to file relevant records. From the details of the list of the selected candidates of the OBC category in which the case of the petitioner also falls, it is apparent that the petitioner obtained 91 marks in Part-I of the objective type WPC 7164/2005 Page 10 of 19 examination and 66 in Part-II examination which was of descriptive type. As such, he got 157 marks out of 300 marks in written examination and thus secured marks much more than almost all the selected candidates. However, with respect to his extra-curricular activities the petitioner has been granted 15 out of 40 whereas more than 10 persons have been granted 30 out of 40 despite the fact, that in the relevant column the petitioner mentioned about his participation in various sports & other activities, the others just left the column blank. Thus, while assessing the petitioner in respect of his other extra-curricular activities, intentionally he was given the lowest marks i.e. 15 out of 40, primarily because the respondents were not willing to permit the petitioner to come in the list of the selected candidates who have been successful with 251 marks as per the list filed by the respondents themselves which includes even the interview marks which are much lower than the marks received by the petitioner which are 92 solely because he has been given the lowest marks in respect of his other extra-curricular activities i.e only 15 whereas the others were granted marks varying from 26 to 30. Had the petitioner been granted 17 instead of 15, he would have been in the select list. As a matter of fact, all persons above him who have also not been selected with even 250 marks have all been granted marks ranging from 26 to 28. 17. The respondents were asked during the course of hearing of the matter to specify the criteria which prevailed in the mind of the Selection Board for granting marks in respect of column of extra- curricular activities and as to why only 15 marks were given to the petitioner while the marks given to others varied from 26 to 30, but no WP(C)No.7164/2005 Page 11 of 19 explanation could be furnished. It is surprising to note that those who did not even mention any interest in the extra-curricular activities have been granted more marks than the petitioner, who has only been granted 15 marks, despite the fact that he disclosed his extra- curricular activities and sports activities in the relevant column. 18. It is their case that out of 200 marks fixed for interview, the petitioner scored only 92 marks and therefore, after including the written examination marks his total marks stood 249, whereas the last person selected was having 251 marks. Thus, as the petitioner fell below the cut off marks, he could not be selected. It is also their case that out of 40 marks in the category of “Overall assessment including other extra-curricular activities” the petitioner got only 15 marks out of 40, whereas many others got more marks than him which also include the candidates who were not selected. Hence, it is submitted that the petitioner who once participated in the selection process cannot now question the selection and therefore, they pray that the writ petition be dismissed. 19. Learned counsel for the petitioner submitted that the manner in which the respondents conducted themselves right from the date of calling the petitioner for PET and taking his measurements which as stated above were not correct. It is apparent that the respondents have awarded lowest marks to the petitioner in respect of extra- curricular activities only to keep him out of selection. This reflects arbitrariness and malice on the part of the respondents. It has been submitted that such arbitrariness and malice tantamount to inequality WPC 7164/2005 Page 12 of 19 and strikes at the root of Article 14 of the Constitution of India and cannot be sustained. As such, the petitioner becomes entitled to the consequential reliefs as prayed for by him in this petition. 20. We have heard the learned counsel for the parties and have also perused the written submissions filed by them. 21. The Hon‟ble Supreme Court in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India & Ors. reported in (1973) 3 SCC 489 has discussed the concept of equality in relation to arbitrariness. It has been held that arbitrariness in state action strikes at the very root of equality and, thus, violative of the provisions contained under Article 14 of the Constitution of India and thus, cannot be sustained. 22. Some observations made by the Apex Court in the aforesaid case are reproduced hereunder: “10. ………….. It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Viteralli v. Seton 359 U.S. 535 : 3 Law. Ed. (Second series ) 1012 where the learned Judge said: An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword. This Court accepted the rule as valid and applicable in India in A.S. Ahluwalia v. Punjab MANU/SC/0363/1974 and in subsequent decision given in Sukhdev v. Bhagatram MANU/SC/0667/1975 Mathew, J., quoted the above-referred observations of Mr. Justice Frankfurter with approval. It may be noted that this rule, though supportable also as emanation from Article 14, does not rest merely on that article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority. If we turn to the judgment of Mr. Justice Frankfurter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution, but evolved it purely as a rule of administrative law. Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pages 540-41 in Prof. Waders Administrative WP(C)No.7164/2005 Page 13 of 19 Law 4th edition. There is no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law. Today with tremendous expansion of welfare and social service functions, increasing control of material and economic resources and large scale assumption of industrial and commercial activities by the State, the power of the executive Government to affect the lives of the people is steadily growing. The attainment of socio-economic justice being a