IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 425 of 2008
Sisiliay Hembram ... Petitioner
Versus
State of Jharkhand & ors. ... Respondents
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CORAM: HON'BLE MR. JUSTICE D.N.PATEL
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For the Petitioner: Dr. S.N.Pathak, Advocate
For the State: J.C. to A.G.
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st
07/ Dated: 21 July, 2009
1. The present petition has been preferred mainly because of
inaction on the part of the respondents, in not deciding the
candidature of the present petitioner for the post of Lady
Constable, despite the fact that the petitioner has cleared all the
necessary required tests, which are taken by the respondents,
as a selection procedure, including physical test and written
test.. It is also submitted vehemently by the learned counsel for
the petitioner that as per the letter dated 28th April, 2007, at
Annexure 6 to the memo of petition, the Deputy Inspector
General of Police is seeking instructions for the selection of the
present petitioner that how many marks have been obtained by
the petitioner in the written examination, because the present
petitioner has already cleared physical test and the marks
obtained by the present petitioner in the physical test reveals
that she has secured higher marks than some other candidates.
This is explicitly clear from Annexure 6.
2. It is also submitted by the learned counsel for the petitioner
that though the letter at Annexure 6 to the memo of petition is
dated 28th April, 2007, the respondents are not deciding
whether the petitioner is selected for the post of Constable or
not. Several representations have also been filed by the present
petitioner, as per Annexure series to the memo of petition, none
of them has been replied or decided and, therefore, the present
petition has been preferred for getting direction upon the
respondents to decide the representations, in accordance with
law, considering the fact that the petitioner has already cleared
the physical test examination and the respondents should also
consider the fact that the present petitioner has appeared in the
written test, which was only in the form of a small dictation in
Hindi language as well as in Santhali language. It is also
vehemently submitted by the learned counsel for the petitioner
that looking to the belated stand, taken by the respondents, as
2.
per the counter affidavit, the petitioner is given the marks in the
written examination as “failed”. No marks have been allotted to
the petitioner in the written examination. Standard of “pass”
and “fail” is never known to the petitioner. Arbitrarily, that
standard is fixed in the mind of the respondents and, therefore,
instead of giving marks in the written test, the respondents
have assessed the marks, obtained by the petitioner in the
written test, as “failed”. This one word is coming in the way of
the present petitioner for getting appointment as a Lady
Constable and, therefore, it is contended by the learned counsel
for the petitioner that the assessment of the marks, obtained by
the present petitioner in the written test, is thoroughly an
arbitrary action. Passing standard is never fixed, no marks are
given to the present petitioner and, therefore, the respondents
can pass any candidate, to whom they like and they can give
the assessment as “fail” as per their whims and caprice. Such
an arbitrary assessment, therefore, deserved to be quashed and
set aside and the marks of the petitioner ought to be reassessed
on some logical base. It is also submitted vehemently by the
learned counsel for the petitioner that a written test is taken of
a dictation of one paragraph in Hindi language and another
paragraph of Santhali language. As per the counter affidavit,
highest allegation against the petitioner is that she is not
knowing Hindi language and, therefore, she has been assessed
as “failed” in the written test. Whenever an examination is taken
for Hindi language as well as for Santhali language and where
there is no grievance about the deduction in a Santhali
language, then 50% marks in the written test ought to be given
to the petitioner, out of the total marks. Thus, if the written test
is taken of 10 marks, then 5 marks minimum should be given
to the present petitioner, because as a part and partial of one
written test, like question 1 and 2, two dictations have been
given of two different languages and looking to the counter
affidavit, highest allegation is about the knowledge of Hindi
language. Thus, the petitioner is entitled for 50% marks in the
written test and, on this logic also, there cannot be a passing
standard higher than 50% for the post of Constable. This aspect
of the matter has not been properly appreciated by the
respondents before giving marks to the petitioner as “failed” in
the written test and, therefore, the assessment “fail” deserves to
3.
be quashed and set aside, so far as written test of the petitioner
is concerned, and, therefore, after applying a fresh mind by the
higher officer, on a written test, petitioner’s representation may
be ordered to be decided by respondent no.3, after giving an
adequate opportunity of being heard to the petitioner or to her
representative, in accordance with law, rules, regulations,
policies and enforceable government orders.
3. I have heard learned counsel for the respondents, who has
submitted that the petitioner is not having adequate knowledge
of Hindi, which is necessary for a Constable and as per the
counter affidavit, if she is not having proper knowledge of Hindi,
she cannot clear the written test and, therefore, she has been
assess in the written test as “failed” and once a candidate is
failed in any of the two tests, the said candidate is not eligible
for appointment and hence, the petitioner cannot be appointed
as a Constable and the writ petition, therefore, deserves to be
dismissed. Nonetheless, as no final decision has been taken
upon the representations, which are at Annexure 5 series to the
memo of petition, respondent no.3 may be directed to decide the
same, in accordance with law, within the stipulated time, given
by this Court.
4. In view of the aforesaid submissions and looking to the fact that
the petitioner has already cleared the physical test, taken for
the post of Constable, and also looking to the fact that the
petitioner is already a matriculate certificate holder, wherein,
Hindi was one of the subjects, and also looking to the arbitrary
assessment of the written test by the respondents, without
appreciating the fact that out of the dictations of two languages
of one paragraph each, half of the written test is correct, and,
therefore, the petitioner is logically entitled for 50% marks and
there cannot be a passing standard of written test for a post of
Constable, exceeding 50%, and also looking to the fact that no
marks have been allotted to the written test and arbitrarily the
word “fail” is written on the written test paper of the petitioner,
and also looking to the fact that no standard has been fixed for
passing or fail, I hereby quash and set aside the assessment by
the respondents of the written test of the present petitioner,
with a direction to reassess the marks, obtained by the
petitioner at the written test. The word “fail” is used, as per the
counter affidavit, upon the written test paper of the petitioner,
4.
which is absolutely an arbitrary action. “Fail” or “pass” is a
consequence of the marks, obtained by a candidate. High
ranking police officer, who has assessed the marks, obtained by
the petitioner at the written test, ought to have given marks, so
that the consequence of “pass” or “fail” can be decided.
Straightway a candidate cannot be labelled as “failed” or
“passed”. Moreover, no standard of “pass” or “fail” having been
prescribed or pronounced, in advance, such an action leads to
absolute arbitrariness. Any candidate can be declared “pass” by
such an arbitrary action or a deserving candidate can be
declared “fail”, if such an arbitrary and unguided powers are
given to the assessing police officer and hence, I hereby quash
and set aside such arbitrary assessment by the respondents of
the written test of the present petitioner. However, looking to
the contention, raised by the learned counsel for the
respondents that no final decision has yet been taken upon the
representation of the petitioner, which are at Annexure 5 series
to the memo of petition, I hereby direct respondent no.3 to
decide the representation of the present petitioner, which is at
Annexure 5 to the memo of petition, or to treat this writ petition
as a representation and I further direct that respondent no.3
will decide the same, in accordance with law, rules, regulations,
policies and looking to the enforceable government orders and
also keeping in mind the aforesaid observations in the foregoing
paragraphs of this order, after giving an adequate opportunity
of being heard to the petitioner or to her representative, as
expeditiously as possible and practicable, preferably within a
period of sixteen weeks from the date of receipt of a copy of the
order of this Court.
5. This writ petition is, accordingly, allowed to the aforesaid
extent, and is hereby disposed of, with the aforesaid directions
and observations.
(D.N. Patel, J)
A.K.Verma/