# State of U.P. & Ors v. Vindhyavasni Tiwari & Ors

- **Citation:** (2014) 1 ILRA 400
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-25
- **Case number:** Special Appeal Defective No. 292 of 2014
- **Bench:** Sunil Ambwani, Dr. Satish Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-vindhyavasni-tiwari-ors-42789
- **Pages:** 13

## Headnote

Constitution of India, Art.-226- vacancy of
S.I. and Platoon Commander advertised on
09.05.2011-selection process started as per
U.P. Sub Inspector Service Rules 200830000 candidate short listed in 3rd steps
test-by 5th amendment Rule 15 relaxing 10
km. Race within 60 minutes for male
reduced to 4.8 km. Within 35 minute to 2.4
km. Race within 20 minutes-considering
unnatural death of a candidate during raceultimately misinterpreting interim order
entire selection quashed-board decided to
re-advertise vacancy as per amended Rulequashed by Single Judge-no interference
called for.

Held:Para-33& 34

## Text

_Characters 0–39,874 of 44,258. This is a partial read: ask again with offset=39874 for what follows._

400 INDIAN LAW REPORTS ALLAHABAD SERIES

behalf of the appellant submitted that the
appellant
was
not
given
sufficient
opportunity to adduce the evidence from his
side before the application under Section 24
of the Hindu Marriage Act filed by the
respondent was decided and as such, he may
be permitted to file a recall application and/or
application for review of the said order and
the Court be directed to consider further
evidence before deciding the matter of
maintenance afresh.

11. It is not for this Court to issue any
such directions in this regard and it is always
open to the appellant to take such recourse as
may be available to him in law.

12. The appeal stands dismissed.

13. No order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2014

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DR. SATISH CHANDRA, J.

Special Appeal Defective No. 292 of 2014

State of U.P. & Ors. .Appellants
Versus
Vindhyavasni Tiwari & Ors........Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Sri Ashok Khare, Sri Seemant Singh, Sri
K.M. Asthana

Constitution of India, Art.-226- vacancy of
S.I. and Platoon Commander advertised on
09.05.2011-selection process started as per
U.P. Sub Inspector Service Rules 200830000 candidate short listed in 3rd steps
test-by 5th amendment Rule 15 relaxing 10
km. Race within 60 minutes for male
reduced to 4.8 km. Within 35 minute to 2.4
km. Race within 20 minutes-considering
unnatural death of a candidate during raceultimately misinterpreting interim order
entire selection quashed-board decided to
re-advertise vacancy as per amended Rulequashed by Single Judge-no interference
called for.

Held:Para-33& 34
33. In the case in hand an exercise with
more serious consideration and with expert
legal advice should have preceded the
decision taken by the senior police officers
sitting
together,
to
cancel
the
entire
selection. There is nothing to show that they
had taken any legal opinion from State Law
Officers, on the interim order passed by the
Court giving them option to either pursue
with the selections under the old rules or to
cancel the entire selections. The State
appellant has not placed any material before
us that it had taken into consideration the
expenditure incurred
in the selections
advertised in the year 2011, and the public
interest to be served in notifying the
selections afresh. The expenditure incurred
in the selections, the requirement of the
police officers at entry level, the aspirations
and legitimate expectation of more than
30,000 young men and women of the State,
who had crossed the 3rd level in the
selections, and the absence of any scientific
data which was required to be collected from
National Sports Colleges or experts in the
Sports Medicine has vitiated the decision to
cancel the entire selections. The entire
exercise is thus held to be wholly arbitrary
and unreasonable.

34. We do not find any good ground to
interfere with the judgment of learned
Single
Judge
in
setting
aside
the
Government Order dated 3.9.2013 and the
consequential orders dated 24.9.2013 by
which the selections were cancelled.

Case Law Discussed:
AIR 1983 SC 852; AIR 1983 SC 1143; AIR
1988 SC 2068; 1998(9)SCC 223; 1997(10) SCC
419; (2007) 11 SCC 605; 2007(5) SLR 237;
(1994) 6 SCC 151; (2002) 3 SCC 586; (2008
1 All] The State of U.P. & Ors. Vs. Vindhyavasini Tiwari & Ors.

401
(1) SCC 362); (2008) 3 SCC 512; 2008(7) SCC
11; (1985) 4 SCC 417; (2006) 6 SCC 395;
(2013) 4 SCC 540; (1974) 3 SCC 220.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. This intra court Special Appeal
under Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952 is
directed against the judgment of learned
Single Judge dated 9.12.2013 by which he
has quashed the Government Order dated
3.9.2013 and the consequential order
dated 24.9.2013 cancelling the entire
proceeding
of
selection/recruitment,
initiated
vide
advertisement
dated
19.5.2011 by the UP Police Recruitment
and Promotion Board, Lucknow on 3698
substantive posts of Sub Inspector (Civil
Police),
and
312
posts
of
Platoon
Commander
in
Provincial
Armed
Constabulary (PAC). Learned Single Judge
has directed the State respondents to
complete recruitment commencing from the
stage it was stopped, in accordance with the
rules as they stood before 5th Amendment
Rules, 2013 expeditiously but not later than
three months from the date of production of a
certified copy of the order before the
respondents competent authority.

2. We have heard Shri Piyush
Shukla, Standing Counsel appearing for
the State appellants. Shri Ashok Khare,
Senior Advocate assisted by Shri K.M.
Asthana and Shri Seemant Singh have
appeared for the respondents, who were
petitioners in the writ petitions.

3. Brief facts giving rise to this
Special
Appeal
are
that
prior
to
enforcement of U.P. Sub Inspector and
Inspector (Civil Police) Service Rules,
2008,
and
U.P.
Pradeshik
Armed
Constabulary
Subordinate
Officers
Service Rules, 2008, the recruitment to
Civil Police and PAC was governed by
the executive instructions issued from
time to time. The Rules made in the year
2008 separately for the Sub Inspector and
Inspector (Civil Police) and PAC were
notified on 2.12.2008. The U.P. Sub
Inspector and Inspector (Civil Police)
Service
Rules,
2008
has
thereafter
undergone
seven
amendments
upto
11.12.2013, whereas the U.P. Pradeshik
Armed Constabulary Subordinate Officers
Service Rules, 2008 has undergone four
amendments. In this Special Appeal we
are concerned with the 1st Amendment
dated 2.4.2009 and the Corrigendum
dated
10.6.2009,
issued
to
1st
Amendment dated 2.4.2009 amending
Rule 15 and the 5th Amendment dated
1.3.2013 by relaxing the standard of
Physical Efficiency Test in Column No.II
(e) in the Rules of 2008; applicable to
recruitment
of
Sub
Inspector
and
Inspector in Civil Police, whereby the
following amendment was carried out:-

(e) Physical Efficiency Test - The
candidates who are declared successful in
the preliminary written test under clause
(d) shall be required to appear in a
Physical Efficiency Test of qualifying
nature. The male candidates shall be
required to complete a run of 4.8
kilometers in 35 minutes and the female
candidates a run of 2.4 kilometers in 20
minutes. The procedure for conducting
the Physical Efficiency Test shall be such
as prescribed in Appendix-2."

4. Similarly the 3rd Amendment dated
6.6.2013 under Rule 18 of the U.P.
Pradeshik Armed Constabulary Subordinate
Officers Service Rules, 2008, has carried
out amendments to the same effect relaxing
the criteria for the distance and time of run
in the physical efficiency test.
402 INDIAN LAW REPORTS ALLAHABAD SERIES

5. An advertisement was published
on 19.5.2011 by the State Government
through U.P. Police Recruitment and
Promotion
Board,
Lucknow
for
recruitment of 3698 substantive posts of
Sub Inspector (Civil Police) including
1849 posts in General Category; 998 in
Other
Backward
Classes,
777
in
Scheduled Castes and 74 in Scheduled
Tribes. The advertisement also included
recruitment of 312 substantive posts of
Platoon Commander in PAC including
156 in General Category, 84 in Other
Backwar Classes, 66 in Scheduled Castes,
and 6 in Scheduled Tribes.

6. In the second column of the
advertisement the recruitment procedure
was prescribed to be undertaken in six
steps namely (1) Physical Standard Test;
(2) Preliminary Written Examination; (3)
Physical Efficiency Test; (4) Main
Written
Examination;
(5)
Group
Discussion and (6) Medical Examination.
The candidates, who meet the minimum
of physical standards could appear in the
preliminary written examination in which
they were required to secure 50% marks
to be eligible for the next step for physical
efficiency
test.
Clause
2.6
of
the
advertisement provided for the standard
of physical efficiency test of qualifying
nature. The candidates, who are declared
successful in this test, are eligible to
appear in the main written examination.
Clause 2.6 further provided that male
candidates will be expected to complete
10 kilometres race in 60 minutes and
female candidates 5 kilometres race in 35
minutes in accordance with the then
prevailing Rules of 2008. Steps 1, 2 and 3
are qualifying in nature. The candidates
fulfilling
the
prescribed
minimum
physical standard; securing 50% marks in
the preliminary written examination and
completing the physical efficiency test,
were eligible to appear in the further steps
in the selection.

7. The physical standard test was
held and carried out as per advertisement
in September-October, 2011 after which
the preliminary written test was held on
11.12.2011,
in
which
approximately
2,70,000 candidates appeared. The result
of the preliminary written test was
declared on 1.1.2013 in which 39,315
candidates qualified to appear in the next
qualifying level. The physical efficiency
test was scheduled to be held between
5.2.2013 to 22.2.2013.

8. On 18.2.2013 one of the
candidates
namely
Satendra
Kumar
Yadav, while appearing in the physical
efficiency test of the run of 10 kilometres,
died while running, before completing the
test. The matter was widely published in
media, on which on 20.2.2013 an order
was issued by the Secretary, Government
of UP, to the Chairman of UP Police
Recruitment & Promotion Board directing
that since one of the candidates had died
after he had fallen on the ground, while
taking part in the physical efficiency test,
the physical efficiency test, which is a
part of the selection, is postponed for a
period of one month.

9. On a request made by the Chairman,
UP Police Recruitment and Promotion Board,
Lucknow on 14.3.2012 the Secretary,
Government of UP vide his letter dated
11.4.2013 directed him to complete the
selection process according to UP Sub
Inspector and Inspector (Civil Police) Service
(5th Amendment) Rules, 2013 notified on
1.3.2013, for the remaining candidates, who
had not completed the test or who were
declared unsuccessful or were absent in the
physical efficiency test. Consequently a
notice/notification
was
published
on
1 All] The State of U.P. & Ors. Vs. Vindhyavasini Tiwari & Ors.

403
27.6.2013 directing all the candidates, who
had not participated in the physical efficiency
test or who were declared unsuccessful and
were absent to complete the physical
efficiency test. The notification provided the
revised standards in accordance with the 5th
Amendment to the Rules of 2008, namely that
the male candidates will be required to
complete a run of 4.8 kilometres in 35 minutes
and the female candidates a run of 2.4
kilometres in 20 minutes.

10. A Service Single No.91 of 2013
(Kendra Kunwar vs. State of UP and
others) was filed at Lucknow Bench of
this Court. The petitioner in the writ
petition was declared unsuccessful in the
physical efficiency test. Learned Single
Judge dismissed the writ petition on the
ground
that
the
petitioner
after
participating in the selection was declared
unsuccessful in the preliminary written
test and thus he has no right to challenge
the procedures adopted in the selection.

11. In another Writ A No. 36383 of
2013 (Rajesh Kumar vs. State of UP &
another) challenging the notification by
which the 5th Amendment to the Rules of
2008 was carried out on 27.6.2013 with
regard to the standards of physical
efficiency test, learned Single Judge
passed following orders:-

"Hon'ble Devendra Pratap Singh,J.

Heard learned
counsel
for the
petitioner and Sri C.B. Yadav, Learned
Additional Advocate General for the
respondents.

Sri Yadav prays for and is granted
three weeks further time to file counter
affidavit.

The petitioners in this petition and
the petitioners of the connected writ
petitions
had
applied
for
direct
recruitment to the post of Sub-Inspector in
accordance with the advertisement issued
in 2011 under the Uttar Pradesh SubInspector and Inspector (Civil Police)
Service Rules,2008. They were subjected
to physical standard test and preliminary
written test and thereafter in the physical
efficiency test and all of them cleared the
three stages of recruitment. However, a
notification was issued on 27.6.2013
amending the rules with regard to
physical efficiency test which has been
challenged.

The recruitment to the post of SubInspector is by direct recruitment and
from rankers.

It is evident that the recruitment
process had been initiated and it is settled
law that once recruitment process had
begun, rules cannot be amended so far as
that recruitment is concerned, as rules of
the game cannot be altered midway and
the respondents cannot invoke the power
of rule 28 so far as the direct recruits are
concerned.

Accordingly, the respondents are
restrained from proceeding further on the
basis of altered physical efficiency
criteria. However, it would be open for
them to carry on that recruitment on the
basis of the old rules or if they are so
advised, the entire recruitment may be
undertaken in accordance with the new
criteria but following the law on the issue.

It is clarified that this interim order
does not relate to promotion of rankers to
the post of Sub-Inspector.
404 INDIAN LAW REPORTS ALLAHABAD SERIES

List after three weeks.

Order Date :- 11.7.2013"

12. On 13.7.2013 in compliance
with the interim order passed by this
Court on 11.7.2013 in Writ A No.36383
of 2013 (Rajesh Kumar vs. State of UP &
another) a decision was taken by the
Chairman of the UP Police Recruitment &
Promotion Board in a meeting in which
Director General of Civil Police, and the
Director General of PAC participated, that
in view of the incident of death in the
physical efficiency test and considering
the directions issued by the High Court, in
public interest, the selection procedure be
started afresh and that the vacancies,
which have arisen upto June, 2015 on
account of promotion/retirement may also
be included in the new notification.

13. In pursuance to the resolution in
the meeting of the UP Police Recruitment
& Promotion Board, a decision was taken
by the State Government on 3.9.2013 to
cancel
the
entire
proceedings
of
selection/recruitment initiated by the
advertisement dated 19.5.2011, and to
start the selection process afresh including
vacancies upto June, 2015.

14. The Writ Petition No.17372 of
2013
connected
with Writ
Petition
No.36383 of 2013 (Rajesh Kumar vs.
State of UP & another) was dismissed as
having become infructuous on the ground
that the selections have been cancelled.
The interim order dated 11.7.2013 merged
in the final order.

15. The State Government has not yet
announced the fresh selections so far. In the
meantime
the
petitioners,
who
are
respondents in this Special Appeal filed Writ
A No.57576 of 2013 (Vindhyavasini Tiwari
and 4 ors vs. State of UP & 2 ors); Writ A
No.63093 of 2013 (Manjit Krishna and 16
ors vs. State of UP & 2 ors) and Writ A
No.60538 of 2013 (Arvind Kumar vs. State
of UP & 2 ors). Learned Single Judge
considered the facts and circumstances of the
case and the effect of the 5th Amendment to
the Rules of 2008 by which the standard of
physical efficiency test were altered and held
that the amendments carried out in the Rules
of 2008, do not show that the amended Rules
will govern the recruitment. The State
Government by Office Memorandum dated
27.6.2013 notified recommencing of the
physical
efficiency
test
on
7.7.2013,
providing that besides remaining candidates
who were yet to participate in the physical
efficiency test in the recruitment process,
even failed candidates and absentees would
be permitted to complete the physical
efficiency test as per amended rules i.e.
reduced length of run as also altered period
within which the run had to be completed.
While rejecting the challenge to the vires of
the
amendments
made
by
the
5th
Amendment
of
2013
and
the
3rd
Amendment Rules of 2013 for recruitment to
Sub Inspector (Civil Police) and Platoon
Commander in PAC, he held that in the
matter of recruitment and appointment the
recruitment procedure as was available on
the date of occurrence of vacancy must be
followed to fill in the advertised vacancies,
unless and until the changed procedure or
alteration or amendment in the rules has been
specifically made retrospective, so as to
govern the on going recruitment. When a
vacancy occurs the general principle is that it
must be filled in according to the procedures
applicable at the time when the vacancy
occurred.

16. Learned Single Judge relied on
Y.V. Rangaiah and ors vs. J. Sreenivasa
1 All] The State of U.P. & Ors. Vs. Vindhyavasini Tiwari & Ors.

405
Rao and ors AIR 1983 SC 852; A.A.
Calton vs. the Director of Education and
another
AIR
1983
SC
1143;
P.
Ganeshwar Rao and others vs. State of
Andhra Pradesh and others AIR 1988 SC
2068; B.L. Gupta and another vs. M.C.D.,
1998 (9) SCC 223; State of Rajasthan vs.
R. Dayal 1997 (10) SCC 419; Arjun
Singh
Rathore
and
ors
vs.
B.N.
Chaturvedi and ors (2007) 11 SCC 605;
State of Punjab and ors vs. Arun Kumar
Aggarwal and ors 2007 (5) SLR 237 and a
Division Bench judgment of this Court,
which
has
followed
the
aforesaid
decisions, in which it was held that the
vacancies existing in 2011 in respect
whereof the advertisement was published
on 19.5.2011, deserved to be dealt with in
accordance with rules as applicable at that
time.
The
subsequent
prospective
amendments would not govern the
selections.
The
selections
for
the
vacancies, which have arisen after 2011
may be made in accordance with the rules
as amended by 5th Amendment to the
rules in the year 2013 and the 3rd
Amendment to the rules applicable to
PAC in the same year of 2013.

17. On the second issue as to whether
the competent authority can cancel a
recruitment process at any stage unless the
decision taken is non-arbitrary and for valid
reasons, learned Single Judge held that the
only reason assigned in the case is that of
interim order dated 11.7.2013 passed in the
Writ Petition No.36383 of 2013 (Rajesh
Kumar vs. State of UP & ors). The decision,
when analysed in depth would show that the
respondents have completely misdirected
themselves. They have misread the interim
order dated 11.7.2013 in which learned
Single Judge added the words "but following
law on the issue". The respondents did not
look into nor considered whether it was
permissible in law to continue with the
recruitment under the old rules, and decided
to cancel the entire selections. The decision
was not an informed and reasoned decision.
He further held that since the interim order
gets merged into final order, the decision
taken in pursuance to the interim order
cannot be accepted.

18. Learned Single Judge also
considered the public interest involved,
and held that since admittedly more than
39,000 candidates had participated in
physical efficiency test, which is the third
stage of recruitment; and in which number
of candidates proved their physical
efficiency by completing rigorous running
test of 10 kilometres for male candidates
and 5 kilometres for female candidates
successfully as per the old rules, the
candidates who have failed had no
justification to request for appearing in
the re-test; and similarly there was no
justification for the candidates, who had
failed or had absented in the test to
participate in the process.

19. Learned Single Judge thereafter
held that those candidates, who have been
selected through more rigorous test would
be more useful for police force than those
who would be selected after reduced
standards. In para 57 of the judgement
learned Single Judge held as follows:-

"57. Be that as it may, the candidates
selected through more rigorous test would
be more useful for police force than those
who would be selected after reduced
standard. It goes beyond comprehension
of any person of ordinary prudence how
recruitment made with rigorous test,
particularly, when the matter relates to
uniform
force
like
police,
directly
responsible besides other for maintenance
406 INDIAN LAW REPORTS ALLAHABAD SERIES

of public law and order etc., would be less
in public interest than having persons
recruited
with
relaxed
or
reduced
standard."

20. Learned Single Judge for the
aforesaid reasons held that the decision
taken by the State Government to cancel
the selection process and to re-start the
process afresh was entirely arbitrary and
against public interest. The argument, that
the rigours of the physical efficiency test,
were relaxed to save the life of young
candidates, was not accepted. He held that
the recruitment in question pertains to
police force which must answer the best
standards of physical strength, endurance,
stress, efficiency etc which must be quite
higher than the average common man
otherwise the members of police force
may not be able to perform the kind of job
they are supposed to. The job of a police
officer
requires
courage,
valiant,
persistent onerous physical stressed duties
etc., and therefore, harder standards are
needed. These standards have continued
for decades together and have stood the
test of time. A large number of candidates
have successfully achieved the requisite
physical test and when such standards
were actually met by large number of
candidates, a single unfortunate incident
could not be a ground to cancel the
selections.

21. Learned Standing Counsel
appearing for the State appellants submits
that the State Government is competent to
frame rules or to make any amendments
in the rules. The 5th Amendment to the
rules made in the year 2013 revising the
standard of physical efficiency test was
not challenged. The State Government did
not act arbitrarily in cancelling the
selections
and
to
re-advertise
the
recruitment under the amended Rules.
The arbitrariness or unreasonableness by
itself was not a ground to challenge the
decision of the State Government to
cancel the selections. He submits that
where the State Government was satisfied
that the operation of any rule regulating
the conditions of service of persons
appointed to service will cause undue
hardship in any particular case, it may,
notwithstanding anything contained in the
rules applicable to the case, by order,
dispense with or relax the requirements of
that rule to such extent and subject to such
conditions as it may consider necessary
for dealing with the cases in just and
equitable manner.

22. Learned Standing Counsel
further submits that the decision of the
State Government to cancel the selection
process is based on the subjective
satisfaction, that it will cause undue
hardship in selection process, where a
candidate had died. The relaxation was
made in public interest without wasting
any time.

23. It is submitted on behalf of State
appellants that in the selection process no
candidate has acquired any vested right
against the State Government, even if his
name is included in the select list. No
right had accrued to the petitioners in the
selection process to be enforced by the
Court. The State Government had a right
to withdraw the notification and to start
the process of recruitment afresh under
the amended rules. Learned Single Judge
has
not
considered
the
facts
and
circumstances in its correct perspective
and that in the selection process the
human approach should not be lost. There
has been considerable delay in selections
and that considering the shortage of police
1 All] The State of U.P. & Ors. Vs. Vindhyavasini Tiwari & Ors.

407
officers at the entry level it is necessary to
hold selections afresh. He has relied on
State of M.P. And others vs. Raghuveer
Singh Yadav and others (1994) 6 SCC
151 (paras 5 and 6), in which it was held:-

"5.It is not in dispute that Statutory
Rules have been made introducing Degree
in Science or Engineering or Diploma in
Technology
as
qualifications
for
recruitment to the posts of Inspector of
Weights and Measures. It is settled law that
the State has got power to prescribe
qualifications for recruitment. Here is a case
that pursuant to amended Rules, the
Government has withdrawn the earlier
notification and wants to proceed with the
recruitment afresh. It is not a case of any
accrued right. The candidates who had
appeared for the examination and passed the
written examination had only legitimate
expectation to be considered of their claims
according to the rules then in vogue. The
amended Rules have only prospective
operation. The Government is entitled to
conduct selection in accordance with the
changed rules and make final recruitment.
Obviously no candidate acquired any vested
right against the State. Therefore, the State
is entitled to withdraw the notification by
which it had previously notified recruitment
and to issue fresh notification in that regard
on the basis of the amended Rules.

6.The ratio in P Mahendran v. State of
Karnataka1 has no application to the facts in
this case. In that case, for the posts of Motor
Vehicles
Inspector,
apart
from
the
qualifications
prescribed,
they
issued
additional qualifications and selection was
sought to be made on the basis of additional
qualifications. It was held that since
recruitment was sought to be made on the
basis of the qualifications prescribed, the
additional qualifications prescribed thereafter
have
no
retrospective
effect
to
the
recruitment already set in motion. Under
those circumstances, additional qualifications
were directed not to be taken into account for
considering the claims of the candidates on
the basis of the original advertisement. The
ratio therein is clearly inapplicable to the
facts in this case."

24. Shri Ashok Khare has, on the other
hand, supported the reasons given in the
judgement. He submits that the legal position
has been fairly explained by learned Single
Judge namely that the selection process must
be concluded in accordance with the service
rules as are prevailing on the date of the
advertisement.
There
were
no
such
circumstances which could have validly
persuaded the State Government to cancel
the selections. The unfortunate death of one
of the candidate was on account of lack of
medical facilities, that there was nothing in
the interim order passed by learned Single
Judge to have cancelled the selections. He
submits that the decision was political in
nature inasmuch as in the middle of selection
process a new Government had taken over
which did not want selection process
initiated at the time of old Government to
continue. The decision was neither informed
with relevant material nor reasonable.

25. Shri Ashok Khare submits that
under the executive instructions prevailing
prior to the enforcement of the Rules of
2008, the run in the physical efficiency test
had to be completed almost within the same
time. The death of one of the candidates out
of more than 30,000, who had participated
could not be a ground to cancel the entire
selections as the death could have taken
place in circumstances other than the stress
of the test. The State Government did not
take into consideration nor held any enquiries
into the medical condition of the person, who
408 INDIAN LAW REPORTS ALLAHABAD SERIES

had died participating in the exercise. He
may have been ill or suffering with any
disease or in a condition in which he should
have been advised not to take the test. He
submits that it is difficult to comprehend that
the standard of physical efficiency test would
be lowered in case of selection in Civil
Police and PAC where a higher level of
physical efficiency is required for the training
and in the job, than in any other service.

26. The legal position that the
recruitment in public service has to be
completed in accordance with the rules
laying
down
eligibility
including
qualification and standard during the test in
accordance with the rules prevailing at the
time of advertisement is not in any doubt.
Any amendment in the rules mid way
changing the rules of game is not
permissible. The amendments in eligibility
and selection process have to be applied for
selections to be held in future. The change in
the
rules
altering
the
conditions
of
recruitment by prescribing qualification and
standards, which are higher or lower, affects
the entire selection process and the right of
persons who participate in the selection
process, in violation of guarantee of equality
before law, under Articles 14 and 16 of
Constitution of India.

27. It is not necessary to add to the
precedent of cases referred on by learned
Single Judge. It is sufficient to state that
the legal position has been further
explained and followed by the Supreme
Court in K. Shekar Vs. Indiramma (2002)
3 SCC 586 (para 23); B. Ramakichennin
Vs. Union of India (2008 (1) SCC 362);
K. Manjushree v. State of Andhra Pradesh
(2008) 3 SCC 512 and Hemani Mehrotra
Vs. High Court of Delhi 2008 (7) SCC 11.
An argument in Himani Mehrotra (supra),
that the decision in K. Manjushree
(supra), did not notice the decision of
Ashok Kumar Yadav v. State of Haryana
(1985) 4 SCC 417 and K.H. Siraj vs. High
Court of Kerala and others, (2006) 6 SCC
395,
was
met
with the
following
observations:-

"15. There is no manner of doubt that
the authority making rules regulating the
selection can prescribe by rules the
minimum
marks
both
the
written
examination and viva voce, but if
minimum marks are not prescribed for
viva voce before the commencement of
selection process, the authority concerned,
cannot either during the selection process
or after the selection process add an
additional requirement/qualification that
the
candidate
should
also
secure
minimum
marks
in
the
interview.
Therefore, this Court is of the opinion that
prescription of minimum marks by the
respondent at viva voce test was illegal.

16. The contention raised by the
learned counsel for the respondent that the
decision rendered in K. Manjusree did not
notice the decisions in Ashok Kumar
Yadav v. State of Haryana as well as in
K.H. Siraj v. High Court of Kerela and,
therefore, should be regarded either as
decision per incuriam or should be
referred
to
a
larger
Bench
for
reconsideration, cannot be accepted. What
is laid down in the decisions relied upon
by the learned counsel for the respondent
is that it is always open to the authority
making the rules regulating the selection
to prescribe the minimum marks both for
written examination and interview. The
question whether introduction of the
requirement of minimum marks for
interview after the entire selection process
was completed was valid or not, never fell
for consideration of this Court in the
1 All] The State of U.P. & Ors. Vs. Vindhyavasini Tiwari & Ors.

409
decisions referred to by the learned
counsel
for
the
respondent.
While
deciding the case of K. Manjusree the
Court noticed the decisions in (1) P.K.
Ramachandra Iyer v. Union of India; (2)
Umesh Chandra Shukla v. Union of India;
and (3) Durgacharan Misra v. State of
Orissa, and has thereafter laid down the
proposition of law which is quoted above.
On the facts and in the circumstances of
the case this Court is of the opinion that
the decision rendered by this Court in K.
Manjusree can neither be regarded as
judgment per incuriam nor good case is
made out by the respondent for referring
the matter to the larger Bench for
reconsidering the said decision."

28. In Tej Prakash Pathak and ors
vs. Rajasthan High Court and others
(2013) 4 SCC 540 a three-Judge Bench of
Supreme Court reiterated the principles,
which have been ingrained in service law
since State of Haryana vs. Subash
Chandra Marwa (1974) 3 SCC 220. After
considering the entire case law on the
subject the Supreme Court held as
follows:-

"9. In the context of the employment
covered by the regime of Article 309, the
''law' - the recruitment rules in theory could
be either prospective or retrospective subject
of course to the rule of non- arbitrariness.
However, in the context of employment
under the instrumentalities of the State which
is
normally
regulated
by
subordinate
legislation, such rules cannot be made
retrospectively unless specifically authorised
by some constitutionally valid statute.

10.
Under the Scheme of our
Constitution an absolute and non-negotiable
prohibition against retrospective law making
is made only with reference to the creation of
crimes. Any other legal right or obligation
could be created, altered, extinguished
retrospectively by the sovereign law making
bodies. However such drastic power is
required to be exercised in a manner that it
does
not
conflict
with
any
other
constitutionally guaranteed rights, such as,
Articles 14 and 16 etc. Changing the ''rules of
game' either midstream or after the game is
played is an aspect of retrospective law
making power.

11. Those various cases deal with
situations where the State sought to alter (1)
the eligibility criteria of the candidates
seeking employment or (2) the method and
manner of making the selection of the
suitable candidates. The latter could be
termed as the procedure adopted for the
selection, such as, prescribing minimum cutoff marks to be secured by the candidates
either in the written examination or vivavoce as was done in the case of Manjusree
(supra) or the present case or calling upon the
candidates to undergo some test relevant to
the nature of the employment [such as
driving test as was the case in Maharashtra
State Road Transport Corporation (supra).

12. If the principle of Manjusree's
case (supra) is applied strictly to the
present case, the respondent High Court is
bound to recruit 13 of the "best"
candidates out of the 21 who applied
irrespective of their performance in the
examination
held.
In
such
cases,
theoretically it is possible that candidates
securing very low marks but higher than
some other competing candidates may
have to be appointed. In our opinion,
application of the principle as laid down
in Manjusree case (supra) without any
further scrutiny would not be in the larger
public interest or the goal of establishing
an efficient administrative machinery.
410 INDIAN LAW REPORTS ALLAHABAD SERIES

13. This Court in the case of the
State of Haryana v. Subash Chander
Marwaha and Others [(1974) 3 SCC 220]
while dealing with the recruitment of
subordinate judges of the Punjab Civil
Services (Judicial Branch) had to deal
with the situation where the relevant Rule
prescribed a minimum qualifying marks.
The recruitment was for filling up of 15
vacancies. 40 candidates secured the
minimum qualifying marks (45%). Only 7
candidates who secured 55% and above
marks were appointed and the remaining
vacancies
were
kept
unfilled.
The
decision of the State Government not to
fill up the remaining vacancies in spite of
the availability of candidates who secured
the minimum qualifying marks was
challenged.
The
State
Government
defended its decision not to fill up posts
on the ground that the decision was taken
to maintain the high standards of
competence in judicial service. The High
Court upheld the challenge and issued a
mandamus. In appeal, this Court reversed
and opined that the candidates securing
minimum
qualifying
marks
at
an
examination held for the purpose of
recruitment into the service of the State
have no legal right to be appointed. In the
context, it was held:-

12. ......In a case where appointments
are made by selection from a number of
eligible candidates it is open to the
Government with a view to maintain
high-standards of competence to fix a
score which is much higher than the one
required
for
more
(sic
mere)
eligibility.......

14. Unfortunately, the decision in
Subash Chander Marwaha (supra) does
not appear to have been brought to the
notice of their Lordships in the case of
Manjusree (supra). This Court in the case
of Manjusree (supra) relied upon P.K.
Ramachandra Iyer and Others v. Union of
India and Others [(1984) 2 SCC 141],
Umesh Chandra Shukla v. Union of India
and Others [(1985) 3 SCC 721] and
Durgacharan Misra v. State of Orissa and
Others [(1987) 4 SCC 646]. In none of the
cases, the decision in Subash Chander
Marwaha (supra) was considered.

15. No doubt it is a salutary principle
not to permit the State or its instrumentalities
to tinker with the ''rules of the game' insofar
as the prescription of eligibility criteria is
concerned as was done in the case of C.
Channabasavaiah v. State of Mysore [AIR
1965 SC 1293] etc. in order to avoid
manipulation of the recruitment process and
its results. Whether such a principle should
be applied in the context of the ''rules of the
game' stipulating the procedure for selection
more particularly when the change sought is
to impose a more rigorous scrutiny for
selection
requires
an
authoritative
pronouncement of a larger Bench of this
Court. We, therefore, order that the matter be
placed before the Hon'ble Chief Justice of
India for appropriate orders in this regard."

29. In the present case more than 3
lacs persons participated in the selections
from which about 30,000 was shortlisted
upto the 3rd step which was given up and
fresh selections were announced only on the
death of one of the candidates. The
unfortunate incident by no stretch of
imagination could be a ground to cancel the
entire selections. In the police force and
para
military
services
a
candidate
participates in the selection and thereafter in
training at his own risk. The standards of
physical efficiency test, which have stood
the test of time and were uniformly applied
to all the candidates in which more than
30,000 candidates participated, could not be
1 All] The State of U.P. & Ors. Vs. Vindhyavasini Tiwari & Ors.

411
treated to be rigorous on the death of one
candidate. His medical condition was not
subjected to any enquiry. The incident,
however, was singular and should not have
been taken into consideration except for
sympathies to his family of the deceased.
The incident, without any proper enquiry
could not have been taken into account for
relaxing the rule by an amendment during
the process of selections and for taking a
decision to cancel the entire selections in
which about 3 lacs candidates had
participated.

30. We are informed that on account
of delay in the selections and the
pendency of the writ petitions, the State
Government has not yet started the
exercise of making fresh selections
causing serious shortage of police officers
at entry level, resulting into deteriorating
law and order situation in the State of UP
and delay in pending investigations in the
criminal cases.

31. In the past the succeeding
Governments in the State of UP, have not
favoured the recruitment in the police
force at the entry level of Constables or
Sub Inspectors initiated by the previous
Governments. The administration and
management of the police force by the
Government to their advantage, has been
a subject matter of perpetual litigation in
courts in the State of UP. The selections
of Constables was cancelled twice by
succeeding governments in the past
resulting into severe shortage of the
trained Constables in the State of UP.

32. Every discretionary power in
public law has to be structured on
objective principles to be exercised with
scrupulous care. The powers in public
sphere vested in the authorities, for taking
administrative decisions is given in order
to deal with a case in a just, fair and
equitable manner keeping in view the
principles of law. The discretion must not
be exercised to swallow the objectives for
the purposes of which it is vested and to
render the basic purpose and object of use
of power nugatory.

33. In the case in hand an exercise
with more serious consideration and with
expert legal advice should have preceded
the decision taken by the senior police
officers sitting together, to cancel the
entire selection.