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2024:CGHC:34740-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

WA No. 481 of 2024

1 - Avinash Singh Thakur S/o Ramesh Singh Thakur Aged About

33 Years R/o Ward No. 23, Behind Old Bus Stand, Janjgir, District-
Janjgir- Champa (C.G.). (Petitioner No. 1 In Writ Petition No.
3549/2023)

2 - Khagendra Kumar Chouhan S/o Lahara Ram Chouhan Aged

About 35 Years R/o Near Hanuman Mandir, Raikera, District-
Jashpur, Chhattisgarh, (Petitioner No 2 In Writ Peition No.
3549/23)

3 - Dilip Kumar Dash S/o Trinath Dash Aged About 33 Years R/o
B-209, Adarsh Nagar Kusmunda, Ward No. 55, Post- Gevra Basti,
Sub District- Katghora, District- Korba, Chhattisgarh. (Petitioner
No.5 In Writ Petition No.3549/2023)

4 - Nimesh Kumar S/o Doman Lal Aged About 26 Years R/o Ward
No. 6, Bharri Para, Palari, District Balod (C.G.), Category - Obc
(Non - Creamy Layer) (Petitioner No. 1 In Wirt Petition No.
3546/2023)

5 - Vicky S/o Ashok Kumar Aged About 29 Years R/o House No. 4,
Kurmi Para, Saamudaayik Bhawan, Village Kulhadi, Post Kulhadi
- Sirri, District Dhamtari (C.G.), Category - Obc (Non - Creamy
Layer). (Petitioner No. 2 In Writ Petition No. 3546/2023)
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6 - Vikram Singh Thakur S/o Shri Tikendra Singh Thakur Aged

About 34 Years R/o Abhanpur Tahsil Abhanpur District- Raipur
Chhattisgarh. (Petitioner No. 1 In Writ Petition No. 3343/2023 )
Preliminary Examination Roll No.25230447),

7 - Atul Kumar Kashyap S/o Late Shri Narendra Kashyap Aged

About 32 Years R/o Shiv Mandir Gali, Mayapur, Ambikapur, Tahsil
Ambikapur District -Surguja (Ambikapur), Chhattisgarh (Petitioner
No. 2 In Writ Petion No3343/2023 ) Preliminary Examination Roll
No. 11100096)

8 - Anup Sharma S/o Har Govind Sharma Aged About 31 Years

R/o Shikari Road Bauripara, Ambikapur, Tahsil Ambikapur, District
Sarguja Chhattisgarh (Petitioner No. 1 In Writ Petition No
3384/2023 ) (Preliminary Examination Roll No.11120474)

Mahesh Ram Yadav S/o Bisahoo Ram Yadav Aged About 32

Years R/o Village Jetha Post Lavsara, Tehsil And District Sakti,
Chhattisgarh. Presently Posted As Constable, Category Obc.
(Petitioner No. 1 In Writ PetitionNo.3547/2023)(Categary-Obc)

10 - Hardeep Sahu S/o Ishwari Prasad Sahu Aged About 29 Years

R/o Ward No. 23, Behind Old Bus Stand, Janjgir, District Janjgir
Champa, Chhattisgarh.( Posted As Constable) Petitioner No. 2 In
Writ Petition No. 3547/2023 )category-Obc.
... Appellants

versus
1 - State of Chhattisgarh Through Its Secretary, Department Of

Home/police, Mahanadi Bhawan Mantralaya, P.S. And Post-

Rakhi, Atal Nagar, Nawa Raipur, District- Raipur, Chhattisgarh
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2 - Director General of Police (D.G.P) Police Head Quarter

(P.H.Q) Sector- 19, P.S. And Post- Rakhi, Atal Nagar, Nawa
Raipur,District-Raipur,Chhattisgarh.

3 - Chhattisgarh Professional Examination Board (Vyapam)

Through Secretary, Vyapam Bhavan, North Block, Sector- 19,
Nava Raipur, Atal Nagar, District- Raipur, Chhattisgarh.

4 - Krishna Thakur S/o Devcharan Thakur Aged About 27 Years

R/o Darri Para Ward No. 24, District- Kabirdham, Chhattisgarh.
(Petitioner No. 3 In Writ Petition No. 3549/2023)

5 - Vikas Upadhyay S/o Santosh Upadhyay Aged About 34

Years /o Near Jai Bharat School, Ward No. 14, Janjgir, District-
Janjgir-Champa, Chhattisgarh. ( Petitioner No 4 In Writ Petition
No.3549/2023)

6 - Praveen Shyam Gupta S/o Suraj Prasad Gupta Aged About 32

Years R/o Near Pahuna Shop, Shri Ramcharit Dular Bhawan,
Ambikapur, District Sarguja (C.G.), Category - Obc (Non - Creamy
Layer) ( Petitioner No. 3 In Writ Petition No. 3546/2023 )

7 - Dharmendra Sahu S/o S/o Dhanku Sahu Aged About 26 Years

R/o Ward No. 1 Ramnagar, District Kabirdham (C.G.), Category -
Obc ( Non - Creamy Layer) (Petitioner No. 4 In Writ Petition No.
3546/2023)

8 - Gajendra Pratap Chandra S/o Teras Ram Chandra Aged About

26 Years R/o House No. 14, Village Kirit, Tehsil Navagarh, District
Janjgir - Champa (C.G.), Category - Obc (Non - Creamy Layer)
(Petitioner No.5 In Writ Petition No. 3546/2023)

Motidas Mandal S/o Late Shri Baladas Mahant Aged About 32

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Years R/o Chhal Tahsil Dharamjaigarh, District- Raigarh ( C.G.)

(Petitioner No.3 In Writ Petition No. 3343/2023)

10 - Mohan Kumar Yadav S/o Shankar Yadav Aged About 32

Years Presently Working As Constable, R/o B-52, Pragati Nagar,
Dipka, District Korba Chhattisgarh. ( Petitioner No. 2 In Writ
Petition No. 3384/2023)

11 - Natwar Nishad S/o Neelkanth Nishad Aged About 36 Years

R/o Village Jorapali, Post Dhanagar, District Raigarh, (C.G.).
Posted As Constable ) ( Petitioner No. 3 In Writ Petition No.
3547/2023 )
... Respondents

For Appellants : Mr. Prateek Sharma, Advocate.

For Respondents/State : Mr. Prafull N. Bharat, Advocate General
with Mr. Shashank Thakur, Deputy
Advocate General.

Hon'ble Shri Ramesh Sinha, Chief Justice

Hon'ble Shri Bibhu Datta Guru, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
06.09.2024

1. Heard Mr. Prateek Sharma, learned counsel appearing for the

appellants/writ petitioners. Also heard Mr. Prafull N. Bharat,

learned Advocate General with Mr. Shashank Thakur, learned

Deputy Advocate General.

2. The present intra Court appeal has been filed by the

appellants/writ petitioners against the order dated 20.05.2024

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passed by the learned Single Judge in WPS Nos.3549/2023 &

other bunch matters, where by the learned Single judge has

dismissed the writ petition filed by the appellants /writ petitioners,

wherein the learned Single Bench accepted the contention of

some petitioners of other writ petitions during analogous hearing

and declared the inclusion of female category candidates in merit

list prepared after Mains Examination for physical efficiency test

illegal, therefore, quashed the inclusion of 30% female category

candidates in merit list prepared for physical efficiency test and

further directed to conclude the entire selection process within four

months from the date of declaration of 370 candidates and rest

other matter were dismissed.

The appellants herein in the writ petitions have challenged

the recruitment procedure initiated by the State for appointment in

various posts in the Police Department and WPS No.4378/2023 in

case of Roopesh Kumar and others Vs. State of C.G. has been

taken up as lead case.

3. In the bunch of petitions, the contention of the

appellants/petitioners, in brief, was that the respondent

Department has issued an advertisement on 17.09.2021 for

recruitment of 975 posts of Subedar, Platoon Commander and

Sub-Inspector (special Branch) /(Fingerprints)/(questioned

documents) and Sub-Inspector (Computer and Radio). Out of

these, 247 posts were earmarked for platoon commanders. In the

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advertisement as well as in the Chhattisgarh Police Executive

(Non-Gazatted) Service Recruitment Ruels, 2021 (hereinafter

referred to as (“The 2021 Rules”) it has been clearly mentioned

that women candidates are not entitled to be appointed on the post

of Plantoon Commnader. As per the advertisement and Rules of

2021 the candidates have to undergo four stages of examination

i.e. prelims, mains, physical test and interview. The Rule 13 of the

Rules 2021 provides that final list for direct recruitment shall be

prepared on the basis of marks obtained in mains written

examination, physical proficiency test, interview and bonus marks.

The said advertisement further provides that the candidates

working on the post of constable in the Police Department and

those having requisite educational qualifications could also apply

for these posts. The preliminary examination was conducted on

29.01.2023.

It was contended that the recruitment process is governed by

the Chhattisgarh Police Exeuctive (Non-Gazatted) Service

Recruitment Rules, 2021 and Rule 6(8) provided that female

candidates shall be eligible for recruitment for the posts of

Subedar, Sub-Inspector (Special Branch, Radio, Fingerprint,

Questioned Documents, Computer and Cybercrime), but not for

the post of Platoon Commander. The rule further provides that a

merit list should be prepared on the basis of mains examination,

and list of 5-times candidates for the post advertised should be

issued admission letters to appear in the mains written

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examination. It was imperative to highlight that this number can be

exceeded if several candidates have scored similar cut off marks

as provided in Rule 6(10)(iv) of the Rules.

4. It was contended in the writ petitions that total number of

vacancies were 975, out of which 247 posts were reserved for

platoon commander, which means 1235 male candidates would

have cleared the mains examination for platoon commander.

Therefore, for the women other posts, 975-247 = 728 seats were

available. It has been further submitted that as per Rule 6(10)(iv)

of the Rules of 2021, after the written examination, there had to be

a separate merit list for the post of platoon commander, as women

candidates were not eligible for appointment on the said post. As

such, the select list ought to have consisted of 728 x 5 = 3640

candidates (including female candidates) + 247 x 5 = 1235 Male

candidates for the post advertised. Thus, list of 4755 candidates

should have been prepared. It had been further submitted that in

the first set of the list (3640 candidates) the respondent

department was required to apply 30% horizontal reservation for

women, so 1092 female candidates ought to have been called by

the respondent. department for the purpose of physical

examination, but they have called the women candidates in excess

and committed illegality in not excluding the post of Platoon

Commander where no post was reserved for women. The State

has prepared the merit list by calling 5 times candidates of all 951

posts, which is “arbitrary and illegal”, as a result of which 1496

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female candidates have been selected for the next round. If the

correct procedure could have been applied, the petitioners’ names

might have found place in the merit list of eligible candidates for

physical examinations. The authorities declared a selection list of

4755 candidates on 21.06.2023 for the physical examination,

including 1496 female candidates which is illegality. as such, 404

male candidates could have been called for the Physical

Proficiency Test. It has been further contended in the writ petitions

that the Chhattisgarh Professional Examination Board, have made

a significant error by neglecting to exclude the post of Platoon

Commanders from the calculation of horizontal reservation for

women candidates. This mistake directly contradicts the explicit

provisions stated in both the advertisement for the vacancy and

the relevant recruitment rule, which clearly states that women

candidates are eligible for all other posts except for the post of

Platoon Commanders. The appellants/petitioners have also made

an attempt to clarify the alleged mistake committed by the

respondent in taking into consideration for 30% horizontal

reservation for all the posts including the post of Platoon

Commanders and have shown the alleged discrepancy in

calculating the post for various posts advertised by the respondent

for example for the post of Sub-inspector

(Radio)/(Fingerprint)/(Documents), Sub-inspector (Computer/

Cybercrime), Sub-inspector (Special Branch). It has been further

contended that the respondent board has acted in direct

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contradiction to the established procedures and it is in violation of

the rule as well as constitutional provisions.

It has also been contended in the writ petitions that the rules

provide 10% horizontal reservation to the ex-servicemen and 10%

of 975 posts would come to 97, therefore, as per rule 20 times

candidates should have been called for mains examination which

comes to 1940, but in the selection process 517 ex-servicemen

have applied therefore, the respondents have considered only 517

candidates for mains examination, as such rest of 1423

candidates, the respondents ought to have considered the

meritorious candidates from other categories.

5. Mr. Prateek Sharma, learned counsel appearing for the

appellants/writ petitioners submits that despite being same

illegality committed by the respondents at the time of preparing

merit list of Preliminary Examination and included 20 times of 30%

of 975 post of Female candidates in merit list which comes to

6013, whereas only 20 times of 30% of 728 posts which comes to

4368 Female category candidates ought to have been included in

the merit list for Mains Examination, thus total 1645 male

candidates deprived illegally from being included in the merit list

due to inclusion of Female category candidates, which is in

violation of provision of advertisement and rule 2021 but despite

being same analogy, this aspect of the matter is no where

considered by Hon'ble Single Bench in impugned judgment dated

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20.05.2024. It is noteworthy to mention here that the appellants

are in fact the whistle blowers who came before this Hon'ble Court

at first instance by Filing WPS No. 3546/2023 challenging the

inclusion of female category candidates in merit list prepared for

Mains Examination, immediately after the Preliminary

Examination, whereas the candidates came before this Court after

Mains Examination challenging inclusion of Female category

candidates in merit list for appearing in physical efficiency test is

considered and allowed.

6. On the other hand, Mr. Prafull N. Bharat, Advocate General with

Mr. Shashank Thakur, Deputy Advocate General for the

State/respondents submit that the learned Single Judge, after

considering all the aspects of the matter has rightly dismissed the

writ petition filed by the appellants/writ petitioners, in which, no

interference is called for. It is further submitted that, in similar

matter, one appeal i.e. W.A. No.385/2024 has already been

dismissed by this Court on 26.06.2024 and another appeal i.e.

W.A. No.424/2024 was dismissed as withdrawn by this Court on

09.07.2024.

7. On going through the order impugned, it transpires that the same

is quite detailed one in which number of other writ petitions have

also been decided wherein some other issues were also raised.

The learned Single Judge, after taking note of the judgment

rendered in Tajvir Singh Sodhi v. State of Jammu & Kashmir &

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Others, reported in 2023 SCC OnLine SC 344, wherein the issue

with regard to the power to quash the entire selection process had

come up for consideration before the Hon’ble Supreme Court. The

learned Single Judge has rightly observed that in light of the legal

position and facts of the case, no ground for quashing of the entire

selection process was made out. The appellants/writ petitioners

have participated in the selection process without any demour or

protest and as such, they are estopped from challenging the same

after having being declared unsuccessful.

8. This Court concurs with the findings and observation made by the

learned Single Judge in its order which is impugned herein. We do

not find any illegality or irregularity in the order under challenge

and as such, this appeal, being devoid of merit, is accordingly

dismissed.

SD/- SD/-

(Bibhu Datta Guru) (Ramesh Sinha)

Judge Chief Justice

Amardeep