TaxTMI 
TaxTMI 
2009 (1) TMI 853
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as cadre S.I. of Police. The cadets who fail in the final examination after training at the Police Training College will be liable to be discharged. The candidates securing top positions in the final Examination will be considered for U.B. and the rest for A.B. subject to the 20 points Roster. All candidates possessing necessary qualification will appear in a written test which will comprise of one paper of 3 (three) hours duration. Questions will be on subjects like General Knowledge, History Science, Basic Mathematics, Comprehension etc. Venue of the test will be decided by the Supdt. Of Police of the Districts in which candidates are presently residing as shown in the application form. They will contact Police Reserve of the Districts for the purpose and ascertain dates. Those candidates who qualify in the written test will be required to appear in a physical test and interview to be conducted centrally for which date will be notified later. The candidates will have to appear in the written test, physical test and interview at their own expenses." 4. Pursuant thereto or in furtherance thereof, appellant as also the private respondents applied therefor. They were asked b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "I am writing to inform you that presently, there are 2154 number of vacancies in the rank of constables (Battalion 1136, District AB 504, District UB 514) and 77 Nos. of vacancies in the rank of S.Is in the Assam Police. These are all functional posts. In the context of insurgency situation obtained in the state and that there will be Assembly Election within the next four months, we will need to mobilize all the manpower. In view of this, it is requested that permission of the State Level Empowered Committee may be conveyed to us to fill up these vacancies by direct recruitment from the results of the records of the previous recruitment rallies already available with us. Government orders on the same may kindly be issued immediately." 8. Allegedly, urgency and compelling reasons for which the said vacancies were to be filled up was vast deteriorating law and order situation in the State as also sudden spurt of extremists related incidents of violence. It was furthermore stated that in the Brahmaputra vally, the ULFA and the NDFB had intensified their subversive activities and resorted to widespread killing and extortion spree in the hill district of Karbi Anglong and the NC Hi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tition before the High Court impuging the selection of 84 candidates to the post of Sub-Inspector of Police in February 2001. 11. Indisputably, during pendency of the said writ petition, posts were filled up as 75 persons who had been found suitable were offered appointment to the post of Sub-Inspector of Police on 2.3.2001. The respondents who were 74 in number had accepted the said offer of appointment on 3.3.2001; one of them, however, did not join the post. They were sent for and completed their training. Indisputably, they have been working in the said post. By reason of a judgment and order dated 12.2.2004 a learned Single Judge of the said Court, however, set aside the appointment of 54 candidates, opining : "Surely, if the physical test constituted a competitive component of the selection process, calling the 84/76 persons for the physical test on the basis of the marks secured by them in the written test and oral interview and in ignoring the petitioners was fatal. All the candidates were not judged by a uniform process; those appointed and those left out were assessed by two different yardsticks, discrimination, therefore, is writ large. The possibility of the petition....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll now have to be initiated by the State, if any of the candidates, who had taken part in the earlier selection process, opts to apply for the posts that may be advertised, suitable relaxation of age, if required will be made by the authorities." 12. Three Writ Appeals were preferred thereagainst. By reason of the impugned judgment dated 5.5.2006, a Division Bench of the High Court, while upholding the appointment of the private respondents, set aside the judgment of the learned Single Judge directing them to fill up remaining 14 vacancies by holding physical and medical test of the candidates from the select list containing the names of 1803 candidates. 13. Appellant herein filed Special Leave Petition on 3.7.2006. However, even prior thereto, i.e. on 24.6.2006 in terms of the judgment of the Division Bench of the High Court, an advertisement was issued in a local daily "The Assam Tribune". Indisputably, appellant with others appeared in the physical test, of course, without prejudice to his rights and contentions herein. He secured only 20 marks (144 marks in aggregate) in the physical test which was lower than the marks secured by the last general category candidate who had s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ference to the selection. The petitioner had therefore, challenged the selection to the post of Sub-Inspector of Police (UB). As an interim measure, I direct that one post of Sub-Inspector (UB) out of the 31 posts advertised shall be kept vacant till pendency of the writ petition." The said writ petition was allowed by a judgment and order dated 10.8.2000, directing : "While issuing a notice of motion, this Court by an order dated 7.4.2000 passed an interim order directing that one post of Sub-Inspector (UB) out of the 31 such posts advertised shall be kept vacant till the disposal of this writ petition. This writ petition is finally disposed of with a direction to the respondent No.2, the Director General of Police, Government of Assam, to consider the case of the petitioner for appointment against the post of Sub-Inspector (UB) directed to be kept vacant by this Court's interim order dated 7.4.2000, as a special case subject to verification as to his antecedents in view of the fact that the advertisement categorically mentioned that the candidates possessing NCC certificate would be given preference and the petitioner is the only candidate who possesses NCC certificate ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f India, should interfere with the impugned judgment. Appellant concededly did not question the appointment 169 candidates. It is idle to contend that he was not aware thereof. If he was to challenge the validity and/or legality of the entire select list in its entirety, he should have also questioned the recruitment of 169 candidates which took place as far back as on 4.7.2000. Appellant was aware of his position in the select list. He was also aware of the change in the procedure adopted by the Selection Committee. He appeared at the interview without any demur whatsoever although was not called to appear for the physical ability test prior thereto. Appellant chose to question the appointment of 77 candidates not only on the premise that the procedure adopted by the Selection Committee was illegal but also on the premise that no new vacancy could have been filled up from the select list. 21. Appellant, in our opinion, having accepted the change in the selection procedure sub silentio, by not questioning the appointment of 169 candidates, in our considered opinion, cannot now be permitted to turn round and contend that the procedure adopted was illegal. He is estopped and prec....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Halo and Others v. Momtaz Ali Sheikh and Others [(2008) 4 SCC 619], wherein this Bench held : "59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule." [See also H.V. Nirmala v. Karnataka State Financial Corporation & Ors. [2008 (8) SCALE 315] 22. Submission of Mr. Raju Ramachandran that new vacancies created should not have been filled up from the select list may now be considered. Articles 14 and 16 of the Constitution of India provide for equality in the matter of recruitment. A large number of posts of Sub-Inspector of Police fell vacant. Advertisement was issued in the year 1997. Effective steps for filling up the said posts by holding written examinations and interview were taken only in 1998 onwards. Appointments could be made of 169 candidates only on or about 4.7.2000. It is not in dispute that for filling up the post of 112 vacancies about 6,000/- candidates applied. Processing of their applications and holding of written examination, viva voce examination and physical ability test took a long time. At the first stage o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ar 1999 did not arise. The impugned judgment, therefore, cannot be sustained." In that case, however, it was held: "11. The Review Bench of the High Court posed unto itself a wrong question. It did not say how an error apparent on the face of the record had been committed. It did not assign sufficient or cogent reason to hold as to how the original application before the Tribunal would have been maintainable if the petitioners had no existing legal right. The 1st respondent did not have any legal right to be appointed. He filed an application pursuant to the said advertisement. It is not his case that his application had not been considered. He did not raise any plea of unfair treatment. No mala fide was also alleged." In that case, the posts more than advertised were filled up. 25. Yet again in State of Bihar and Others v. Amrendra Kumar Mishra [(2006) 12 SCC 561], this Court took the same view, stating: "Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel." It was furthermore held: "13. The decisions noticed hereinbefore are authorities for th....