M. Badmanabhan vs Union of India

The challenge in this Writ Petition is to the order dated 1 March 2006 in O.A. No.145/2005 whereby and whereunder the Madras Bench of Central Administrative Tribunal (hereinafter referred to as the Tribunal), negatived the challenge made to the select list dated 25 January 2005, relating to the promotion of police constables as Head Constables.

Brief facts:-

The Government of Puducherry have notified the recruitment rules for promotion to the post of Head Constable. The recruitment rules provides for promotion by adopting non selection method in respect of 50% of the post and selection method to fill up the remaining 50%.

The first respondent issued a notification for filling up 81 posts of Head Constables, by resorting to selection method. The petitioners took part in the selection process. The grievance of the petitioners is that though they have cleared the prescribed test conducted by the first respondent, the list published after conducting parade test does not contain their names. The petitioners have therefore challenged the select list dated 25 January 2005, in O.A. No.145/2005.

Before the Tribunal, the second respondent filed a reply affidavit indicating the factual position. According to the second respondent, only those constables who have secured 40% marks in the written test would qualify for parade test, according to seniority. The Police Department have stipulated minimum 40 marks in parade test. The second respondent contended that the petitioners failed to perform well in the parade test and therefore, they were not selected.

The Tribunal rejected the contentions taken by the petitioners. According to the Tribunal, the petitioners having taken part in the selection process, are estopped from challenging the process of selection. The Tribunal opined that the petitioners have no legal right to challenge the selection process. Feeling aggrieved by the said order, the unsuccessful applicants are before this Court.

Submission of parties :-

The learned counsel for the petitioners contended that the respondents have not followed seniority in the matter of promotion. The petitioners though succeeded in the written examination were not selected ultimately, and as such, they are made to work under their juniors. The learned counsel contended that the Tribunal erred in rejecting the original application on the ground of res judicata. It was submitted that the petitioners have not filed original applications earlier and as such, the Tribunal was not correct in rejecting the application on the ground of res judicata.

The learned Additional Government Pleader (Puducherry), submitted that the petitioners were unsuccessful in the parade test and as such, they were rightly denied promotion to the post of Head Constable. The learned Additional Government Pleader has taken us through the marks obtained by the petitioners in the parade test, in support of his contention that none of the petitioners secured pass marks.

Analysis:-

The Government of Puducherry have published recruitment rule for the post of Head Constable. The mode of recruitment is 50% by promotion from among regular police constables on seniority, subject to rejection of unfit and remaining by selection method.

The first respondent has issued a notification calling for applications for selection to the post of Head Constable. The circular issued in connection with selection contain a statement to the effect that the selection would be by way of departmental test (qualifying test) consisting of written examination and parade test. Sl.No.3 of the Circular contain the procedure relating to departmental test. It reads thus :-

Procedure of the departmental test :

For the departmental test, all eligible candidates will be permitted to appear for the written test and those who get 40% marks and above will be called for the parade test according to their seniority subject to three times of the total vacancy. In the parade test minimum 40% of the marks should be obtained. The result will be published with the names of candidates, who secure minimum marks of 40% in the written test and 40% in the parade test individually. While arriving at the vacancy, the anticipated vacancies during the current year will also be taken into account. A select list will be drawn one and half times of the actual vacancy based on the seniority of the candidates subject to obtaining minimum qualifying marks.

The petitioners have submitted applications for taking departmental test for promotion to the post of Head Constable. The documents produced by the first respondent shows that the petitioners secured only less marks in the parade test and that was the reason for their non selection.

There was a challenge made earlier to the circular, on the ground that it was against relevant rules and that the process to fill up posts by selection method is not warranted. The Tribunal dismissed the original applications in O.A. Nos. 915/2003, 1093/2004, 579/2005. The matter was taken up before this Court in W.P. Nos.34711 of 2004, 2774 of 2005 and 8179 of 2006. Though the police constables in the above Writ Petitions contended that there was no attempt made to fill up 50% by non selection, the Division Bench considered it not fit to take up the said contention. The Division Bench having found that there were vacancies available, directed the Government of Puducherry to promote the petitioners therein notionally.

The petitioners have taken part in the selection process, knowing very well that it involves written examination as well as parade test. The petitioners have no case that they secured the required cut off marks in parade test.

We are concerned with uniformed force. The constables must have the physical fitness to function as Head Constables and there after as Sub Inspector of Police. In case constables are not physically fit, there is no question of granting them promotion notwithstanding the rule position that promotion is by selection method.

We are informed that the petitioners have all been given promotion subsequently, against 50% quota earmarked for promotion by seniority. The petitioners now wanted notional promotion from the date on which the impugned selection list was published by the Government. There is no question of considering the case of the petitioners for notional promotion, for the simple reason that they have failed in the selection test conducted by the first respondent. We therefore do not find any merit in the contentions taken by the petitioners.

In the upshot, we dismiss the Writ Petition. No costs. Consequently, connected miscellaneous petitions are closed.