Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6860 OF 2021
(Arising out of SLP (CIVIL) No.5006 of 2020)
State of Uttar Pradesh and Ors. .…Appellant(s)
Versus
Pankaj Kumar …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
The appellants are before this Court assailing the order
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dated 29.08.2019 passed by the Division Bench of the High
Court of Judicature at Allahabad, Lucknow Bench, Lucknow, in
Special Appeal Defective No. 366/2019. Through the said order
the Division Bench of the High Court has dismissed the Special
Appeal, thereby upholding the judgment and order dated
12.03.2019 passed by the learned Single Judge in W.P. No.693
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2021.11.18
13:51:42 IST
Reason:
(S/S) of 2019, titled Pankaj Kumar vs. State of U.P and Ors.
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The brief facts leading to the present appeal is that the
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appellants had published an advertisement in the year 2015 to
recruit Police Constables to the Provincial Armed Constabulary
(Male) by direct recruitment. The respondent herein was one of
the candidates who had responded to the said advertisement
and submitted his application. Pursuant thereto, the admit
card was issued to the respondent and the initial fitness
examination was held. In order to complete the process of
selection, the documents were to be verified and the candidates
were to be subjected to physical fitness test which was to be
made subsequently as the next stage of recruitment process.
The issue presently is with regard to the respondent being
unable to appear for the physical fitness test and the
verification of documents which he alleges is for want of written
communication.
According to the appellants, the candidates who were
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required to appear for the physical fitness test and document
verification were intimated by issuing SMS over the mobile
phone, the number of which had been furnished in the
application. Several other candidates who had received such
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SMS had appeared and taken part in the process of document
verification and the physical fitness test. The respondent who
had not appeared, made out a grievance about appellants not
intimating the respondent through post. In that light, the
respondent filed the writ petition bearing SS No.693 of 2019
seeking that the appellants herein be directed to complete the
document verification and the physical fitness test of the
respondent pertaining to his height, weight and chest
measurement and to declare the result after completing the
process. The case put forth was that the appellants had not
adhered to the requirement contemplated under the Uttar
Pradesh (Civil Police) Constable and Head Constable Rules,
2008. According to the respondent, as per rule, a call letter was
required to be issued. Since, such call letter has not been
issued to the respondent he was unable to take part in the
process of document verification and physical fitness test. The
Learned Single Judge though did not record a finding with
regard to there being violation or noncompliance of any rule,
had arrived at the conclusion that there was inadvertence on
part of the respondent since an applicant would not have
deliberately not participated in the process of recruitment. In
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that circumstance, as a matter of equitable consideration, the
Learned Single Judge had directed the appellants to permit the
petitioner to appear for the document verification and physical
fitness test for the post of Constable in pursuance to the
recruitment advertised in the year 2015.
The appellants herein, claiming to be aggrieved by such
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direction issued by the Learned Single Judge filed an intra
court appeal in Special Appeal No.366/2019 before the Division
Bench of the High Court. The Division Bench having extracted
the portion of the observations made by the Learned Single
Judge wherein an equitable consideration was made, has
further indicated that there is no dispute to the fact that except
for the SMS sent to the respondent no other mode of
information was sent and in that view the Division Bench
approved the direction issued by the Learned Single Judge
whereby an opportunity has been granted to the respondent to
appear for the document verification and physical fitness test. It
is in that view, the appeal was dismissed.
5. Mr. Pradeep Misra, learned counsel representing the
appellants while assailing the order passed by the Learned
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Single Judge as also the Division Bench has contended that
keeping in view the large number of candidates and the process
to be completed, the candidates were intimated by sending SMS
to appear for the document verification and the physical fitness
test. It is his further contention that the negligence of the
respondent in not responding to such SMS by appearing for the
further process should be to his own detriment and cannot
interfere with the process of selection which has been
completed. It is pointed out that the physical standard test had
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been held as far back as on 17 , 18 and 19 September 2018.
At this belated stage, no indulgence can be shown when
admittedly the SMS had been received by the respondent on the
mobile no.8394959934 which was furnished by him. Reference
is made to the information/notification dated 15.05.2018
wherein the details of the process of selection had been
indicated and the candidates had also been notified therein that
the result is available on the website, the details of which was
furnished. The candidates were required to keep track of the
details of the selection process through the website. Hence the
respondent cannot come up with the contention as has been
put forth by him herein. It is contended that though one
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opportunity had been granted as a concession to about 151
candidates pursuant to direction issued by the Court, the said
process cannot be a continuing one, as and when
individuals/candidates seek to reopen the selection process
time and again. It is contended that the Coordinate Bench of
the High Court in another writ petition had rejected a similar
claim as that of the respondent and the Division Bench had
upheld the rejection. It is in that light contended that in respect
of the selection process which was commenced in the year 2015
and concluded in all respects in the year 2018, request for
opportunity at this belated stage ought not to have been
entertained by the High Court.
Mr. Sarvesh Kumar Dubey, learned counsel for the
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respondent on the other hand seeks to sustain the order passed
by the Learned Single Judge and approved by the Division
Bench of the High Court. It is his contention that the Rules
contemplated that the intimation has to be sent through post,
but no such intimation was issued to the respondent. It is
contended that the mere issue of SMS intimating the date of
further process in the selection would not be sufficient. He
contends that the mobile number would be furnished by the
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candidates at the time of making an application and in the
instant case since about 3 years had elapsed from the date of
the application, there could be no assumption that the
candidate would possess the very same mobile connection and
the number. In that light, it is contended that the appropriate
course to ensure proper service would be through postal
intimation, which had not been done in the instant case. It is in
that background, the Learned Single Judge as also the Division
Bench has arrived at the conclusion that an opportunity is
required to be furnished as the employment opportunity should
not be jeopardized. He therefore, seeks that this appeal be
dismissed.
In the light of the rival contentions, having perused the
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order passed by the learned Single Judge as also the conclusion
reached by the Division Bench of the High Court, it would
indicate that the High Court has not granted the relief to the
respondent by recording a finding with regard to the non
compliance of any requirement envisaged under the Rule or
procedure provided in the advertisement calling for
applications. The Rule as referred to by the learned counsel for
the respondent mentions that the intimation is to be provided
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by postal communication or any other mode. In that view, there
is no bar in intimating the candidates through SMS, more
particularly when large number of candidates had to appear in
the subsequent process and majority of the candidates have
appeared for document verification and physical fitness test
pursuant to intimation by SMS. Even, so far as the respondent
is concerned, it is not his case that he had not received the
SMS. It is only a technical contention that he ought to have
been intimated through postal communication. When a
requirement is stated in the application to provide the mobile
number, it is with a purpose to communicate and in the instant
case, the appellants have sent the SMS to the very number
which had been furnished by the appellant.
Though, the learned counsel for the respondent vaguely
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contended that a person may not retain the same number after
a long lapse of time, no material has been brought on record to
indicate that the respondent did not possess the said mobile
connection as on the date the SMS was sent. Further, the
argument as put forth by the learned counsel for the
respondent that one may not retain the same number after
lapse of long time would hold good even for the address which
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is furnished for issue of postal communication. In a given case,
the person may not reside in the same address which is
furnished for communication as it existed when the application
is made. In such circumstance, it is for the candidate to
intimate any change to the authorities, since such change
would be within the knowledge of the candidate and it is in his
or her own interest such intimation is to be made. In the
instant case, when there can be no dispute that the respondent
was in possession of the same mobile connection, the detail of
which was furnished in the application and the SMS had been
sent to the respondent, the respondent having not acted on the
same cannot at his own convenience make request to be
permitted to participate in the selection process which has
already concluded, not having utilized the opportunity which
was available to him.
Further, from the very nature of consideration made by
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the High Court, it is seen that it was the casual attitude of the
respondent which had brought about the situation though the
High Court has mildly put it as, inadvertence and provided an
opportunity. It is no doubt true, that as contended by the
respondent in the objection statement, an opportunity was
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granted to about 151 candidates to take part in the selection
process as indicated in the notice dated 14.01.2019 issued
pursuant to directions issued by the High Court in the writ
petitions which were filed. It is to be noticed that the
respondent was not vigilant at the earliest point in time but it is
only after such consideration had been made by the High Court
and an opportunity was granted to certain other persons, the
respondent had chosen to file the writ petition by merely
contending that he had made a request to permit him to take
part in the process on 15.01.2019 and he had not been
permitted.
In that background, it is to be noted that another
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learned Single Judge of the High Court in a similar
circumstance had dismissed Writ Petition No.3647 of 2019 filed
by one Radha Sharma seeking similar relief and the said order
was upheld by the Division Bench in Special Appeal Defective
No.903 of 2019. The order of the learned Single Judge was
dated 13.05.2019. In any event, though indulgence was shown
in the earlier cases, a line has to be drawn at some stage as
otherwise, the recruitment process undertaken by the
competent authorities would be meaningless without a time line
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and the next recruitment process will also get effected since
determination of the number of vacancies for the next process
will keep fluctuating. The process herein had commenced in the
year 2015 and the document verification along with the
physical fitness test was held in 2018. Several candidates who
were permitted pursuant to the order of the High Court had
taken part in early January 2019. Since, sufficient time has
elapsed thereafter it would not be appropriate to make an
exception in the case of the respondent at this stage as
otherwise the trickle would continue.
We are therefore of the opinion that the learned Single
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Judge as also the Division Bench of the High Court was not
justified in their conclusion. The order dated 12.03.2019
passed by the learned Single Judge in W.P No.693 (SS) of 2019
and the order dated 29.08.2019 passed in Special Appeal
Defective No.366 of 2019 by the Division Bench are set aside.
Consequently, the Writ petition No.693 (SS) of 2019 titled
Pankaj Kumar vs. State of U.P. and Ors. stands dismissed.
12. The appeal is allowed with no order as to costs.
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Pending application, if any, stands disposed of.
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..…………………….….………………………J.
(DR. DHANANJAYA Y. CHANDRACHUD)
…………………….……………………….J.
(A.S. BOPANNA)
New Delhi,
November 18, 2021
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