Case: NIRBHAY KUMAR Vs. THE STATE OF BIHAR

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 2 nd 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 Courts 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: -It is therefore most respectfully prayed that this Honble 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 Honble 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 Honble 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 byM.M.Singh Rameshwar Prasad Goyal Advocate Advocate for the PetitionersDrawn on: 15.1.2019Filed on: 24.01.2019

Reasoning:
14. All the writ petitioners are claiming appointment to the post of Sub-Inspector in pursuance of Advertisement dated 28.06.2011 for 299 posts of Sub- Inspector of Police. The Commission has categorically pleaded that all the petitioners in this batch of writ petitions are candidates who either did not participate in the physical test for the selection against 299 posts or they participated and failed.16. This Court made it very clear that order of this Court regarding selection and appointment of 133 candidates are passed in peculiar background of litigation in exercise of jurisdiction under Article 142 and the same shall not be treated as a Precedent.17. The petitioners are claiming that they should be extended the same benefit of not being subjected to physical test as the exemption was granted with regard to 133 candidates. There is more than one reason for not accepting the claim of the petitioner. Firstly, there has been specific order with regard to 133 candidates for not subjecting them to the physical test and directing their appointment without physical test which this Court had categorically held to be not treated as Precedent. The order when specifically held that it may not be treated as Precedent, no benefit can be claimed of the said order by the writ petitioner in the present writ petitions especially when otherwise the writ petitioners are not able to satisfy this Court that when they have either not undertaken the physical test or failed in the physical test, why they should be given appointment as Sub-Inspector of Police at this stage.18. The Counter affidavit filed by the Commission categorically states that for selection against 299 posts, 2192 candidates turned up for selection and only 232 cleared the physical test. The order dated 14.09.2017 of this Court passed in C.A.Nos.2795- 2797 of 2017 has also noticed the number of the candidates who were to subjected to the process of selection for 299 posts which number was mentioned 2479 candidates. From the order dated 14.09.2017 of this Court, it is further clear that 1035 candidates did not turned up for selection, this Court directed for them also to be subjected to physical test, thus, there are large number of candidates who did not take physical test or took the physical test and failed. Directing for appointment of all those candidates which includes the petitioners also who did not take the physical test or took the physical test and failed shall be an unending process and there are more than thousand of such candidates who may claim that although they did not take physical test or failed in physical test in pursuance of selection of 299 posts, they should be appointed they being similarly situated to 133 candidates.19. This Court has further passed an order on 01.11.2018. It is also relevant to notice that several candidates some of which are petitioners before us has also filed the impleadment application in Contempt Petition No.1711 of 2018 in C.A.No.2805 of 2017 which application were rejected on 01.11.2018 and in order dated 01.11.2018, it had although been observed that the applicants are free to make representation appealing to the good conscience of the State of Bihar and the State of Bihar is free to consider the same but in event if the representation are rejected, it shall not give rise to any proceeding/appeal in any of the Courts. Following observations are made in this regard: -...Mr. S.Nagamuthu, learned senior counsel, and other counsel appearing for some of the intervenors/applicants, pray for the same relief which is granted to 133 candidates.The said applicants are free to make representations appealing to the good conscience of the State of Bihar. The State of Bihar is free to consider the same and pass appropriate orders in accordance with law. In case such representations are made by the intervenors/applicants within one month from today, appropriate orders may be passed by the state on those representations within three months thereafter. However, we make it clear that even if their representations are rejected, it will not give rise to any proceedings/appeal in any of the Courts.20. The Court thus by order dated 01.11.2018 clearly indicated that in event the State of Bihar does not accede to the representation of applicants claiming similar relief to 133 candidates that shall not give rise to any proceedings in any of the Courts. We are not persuaded to grant the said relief in these proceedings under Article 32 of the Constitution.