IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1628 of 2009 In SPECIAL CIVIL APPLICATION No. 4998 of 2009 With CIVIL APPLICATION No. 10897 of 2009 In LETTERS PATENT APPEAL No. 1628 of 2009 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE G.B.SHAH ========================================= ========================================= AJRA HIMMATKUMAR NARANBHAI & 3 - Appellant(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================= Appearance :
MR Y N Oza Sr. Advocate with Mr SP MAJMUDAR for Appellant(s) : 1 – 4., MR PP MAJMUDAR for Appellant(s) : 1 - 4.
Mr Rakesh R Patel, Asstt. AGP for Respondent(s) : 1, RULE SERVED for Respondent(s) : 1 - 5.
========================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE G.B.SHAH Date : 02/11/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE G.B.SHAH)
1. This appeal has been filed by the appellants challenging the common judgment and order dated 28.8.2009 passed by the learned Single Judge in Special Civil Application No. 4998 of 2009 and other allied petitions.
2. Out of the four appellants, the appeals in respect of appellants No. 1, 3 and 4 were disposed of by order dated 19.7.2012 passed in LPA 1628 of 2009 in view of the amendment brought about by the Police Sub-Inspector (Unarmed) Class-III Recruitment Rules, 2008 and the Rules of 2012 published by Notification dated 21.6.2012. In view of the above amendment in Rules, an identical group of appeals were disposed as not surviving. Hence the present appeal only in respect of appellant No.2-Shri Gadhavi Jayarajsinh Madhubha is taken up for final hearing.
3. The facts of the case in brief are that the appellant is serving as Police Constable under the respondent authorities. After completion of 9 years of service as constable, he has been granted higher grade pay-scales of the promotional post of Head Constable. By notice dated 8.5.2009 the Director General of Police invited applications for filling up of 554 posts in question and as the eligibility for the said recruitment is minimum 3 years experience as Head Constable/ASI and as the appellant did not fulfil the eligibility criteria of having minimum three years' experience as Head Constable/ASI and being ineligible for appearing in the Special Competitive Examination for the post, the appellant preferred Special Civil Application before the learned Single Judge. The learned Single Judge, by order dated 28.8.2009 dismissed the petition and being aggrieved, he has filed the present appeal.
4. The appellant has also filed Civil Application No.
10897 of 2009 with the following prayer:
“(9) (B) Your Lordship may be pleased to direct the respondent authority to take the entire physical examinations of the present applicant No.2 again after period of three months and if the present applicant No.2 passes the physical examinations, the respondent authorities may take the oral interview of present applicant No.2.
ALTERNATIVELY Your Lordships may be pleased to direct the respondent authorities to take the physical test with regard to running of 800 mtrs on any appropriate date after a period of three months and if present applicant no.2 passes the physical examination successfully, the respondent authorities may be directed to take the oral interview of present applicant No.2.”
5. Learned senior counsel for the appellant-applicant submitted that, vide order dated 3.9.2009 of this court, the appellant along with other appellants was permitted to appear at the written examination followed by physical test which were to be conducted on 5.9.2009 and 25.9.2009 respectively and the final result was ordered to be kept in sealed cover. On 8.9.2009, the present appellant had made a representation stating that he had sustained multiple injuries while on duty and therefore, he requested that his physical examination may be postponed. It is submitted that despite making representations, the concerned authority made the appellant- applicant undergo the physical test. Despite his physical condition, he did participate in some physical tests but he could not participate in the 800 mtr. running and thus he was unable to clear the physical test. According to the appellant- applicant, because he had met with an accident while trying to catch a wanted accused, he had sustained injuries. It is submitted that, vide order dated 8.7.2009 of the Deputy Police Commissioner, the appellant was given duty to catch certain accused persons who had fled to Rajasthan. It is submitted that while he was on duty, he met with an accident and FIR in this regard was also registered. On account of multiple fractures, he was advised complete rest for four months. To make it believable, learned counsel has submitted that the fact of compelling the appellant to participate in physical examinations despite his poor physical position was also highlighted in a newspaper – Times of India dated 28.9.2009. Therefore, learned counsel has prayed for a direction to the respondent authorities to take physical examinations of the present appellant after three months within which he would have recovered. He has then submitted that the appellant is a highly meritorious candidate and only on account of the unfortunate accident while performing his duty, he might miss out his promotion.
6. As per the affidavit-in-reply filed by respondent No.2, as the Recruitment Rules do not permit exemption to the candidate either for not appearing in the physical test or deferring of the physical test, the request of the appellant for giving exemption was not granted. Moreover, appellant has already participated in the other categories of physical examination including the rope-climbing and obstacle course and he has been declared failed in the physical examination. The selected candidates have already reported for training from 12.10.2009 after following the procedure and police verification. Learned AGP submitted that, since there was no provision in the police sub-Inspector Recruitment Rules, 2008 and Competitive Examination Rules, 2004, the applicant was duly conveyed on 21.9.2009 that his request for taking of this physical test after 90 days cannot be granted. In view of these facts, it was submitted that the Civil Application and the Appeal deserve to be dismissed.
7. We have considered the rival submissions made by learned counsel for the applicant as well as learned AGP for the respondent. The complaint dated 15.7.2009 lodged against the driver of Tata Safari bearing No. GJ-5CH 7879 in which the applicant and other police officers were travelling is at page No.39. The another vehicle which was bearing registration No. HR 55 GO 556 was stationed on the road. The driver in which the applicant and other police officials were travelling had dashed with the rear portion of the vehicle which was stationed on the road. Translation of the relevant portion of the complaint reads as under:
“Therefore, on the date, time and place mentioned above, by driving the vehicle speedily, carelessly and negligently, the driver of the said vehicle Tata Safari bearing No.GJ-5 CH 7879 dashed the parked container bearing No. HR 55 G 0556 from back side and caused fractures and minor-major injuries to me and the police persons with me and thereby committed an offence and therefore, it is my complaint to take legal action against him. My witnesses are the police persons with me and those who will be found in police investigation etc.
This much fact of my complaint as dictated by me is true and proper.”
8. Translation of the relevant extract of the representation dated 8.9.2009 in the form of letter written by the applicant for grant of extension of time for exemption from examination reads as under:
“During the course of investigation of the accused persons, after making investigation of the accused persons at Godhra, District Panchmahals and in villages of Madhya Pradesh, we left for Rajasthan. In the meantime, at about 22.40 hrs at night on 14.07.2009, as the lights of the truck parked on the road were not on and it was raining, an accident of my vehicle took place on the road due to mistake of the opponent truck driver, wherein minor-major injuries were caused to me and other staff persons as well as driver who were sitting in the vehicle. In this accident I sustained injuries on right hand, on right leg and on waist part wherein normal injury has been sustained on hand and waist part. The competitive examination of PSI (Mode-2) Class 3 was held on 5.9.09 and written examination was held on 6.9.09 in which I have appeared and I have performed very good in papers and as the injury on my bottom part of right leg is little more, as per the opinion of the doctor, still it may take about 90 to 100 days from this date to recover the same and thereafter, as per the opinion given by the doctor, I shall become completely fit physically.”
9. Translation of the reply dated 21.9.2009 to the above representation given by Inspector General of Police (Law and Order), Gandhinagar reads as under:
“With reference to the subject noted above, considering the provisions of rules of special competitive examination for PSI (Mode-2) class-3, vide resolution of Home Department No. GG/04/EST/1097/3757/C, there is no provision of granting permission separately for the cases as per the submission made by the applicant. As per the provisions mentioned therein, it is compulsory to pass written and oral examinations as well as physical fitness test being taken by Recruitment Board on the prescribed date. Therefore, the time limit for individual candidate cannot be extended and accordingly the dates for physical and oral examination have been fixed and the concerned candidates have been informed that they shall have to pass the physical examination compulsorily at minimum 50% of marks and the merit obtained therein shall be calculated in final merit.
Considering the aforesaid fact, his application in respect of exemption from physical test or extension of time limit of PSI (Mode-2) is not accepted. The applicant be informed accordingly.”
10. Thus it is clear that while the applicant and other police officials were travelling from one place to another in search of collecting data pertaining to the investigation entrusted to them, the driver of the vehicle in which they were travelling had dashed the front portion of his vehicle with the rear portion of the stationary vehicle. On account of this accident, the applicant and other police officials had sustained injuries and the applicant could not clear his physical examination. It is clear that considering the provisions of rules of special competitive examination for PSI (Mode-2) class-3 there is no provision for granting special permission and it is compulsory to pass written and oral examination as well as the physical fitness test according to the prescribed schedule only and so the permission sought by the applicant had to be rejected.
11. It is stated on oath by Chairman of the Recruitment Board, for the respondent, that the applicant-appellant has got a criminal record and he is presently under suspension from duty. He was arrested on 31.7.2010 for offences under section 406, 419, 177, 120-B and 114 of IPC pursuant to I-CR No. 37/2010 and charge sheet in that regard is filed on 15.8.2010. In the meantime, he was transferred and while he was on casual leave from 16.4.2011 to 18.4.2011, he had fired from his personal revolver in a land dispute for which I-CR No. 45 of 2011 was registered on 23.6.2011 for offences under section 279, 332, 186, 160, 504 and 158 of IPC and Section 25 (1) (b) of Arms Act. Departmental proceedings are also stated to be under way against the applicant. By now, a new Recruitment Board is already formed and the applicant is free to participate in fresh examinations for the recruitment, if eligible. Under those circumstances, the applicant neither has a good case in equity nor in law to retrospectively grant him an exemption from the physical test and the main appeal is otherwise admittedly not surviving for any relief or order on merits.
12. In view of the aforesaid, we do not find any merit in the present Civil Application or the Letters Patent Appeal and they are accordingly dismissed with no order as to costs.
[D.H. WAGHELA, J.] msp [G. B. SHAH, J.]