Dilip Ratre vs State Of Chhattisgarh

Proceedings of this matter have been takenÂ​up through video conferencing.

Pursuant to the advertisement dated 20.1.2008 (Annexure PÂ1) for recruitment on the post of Constable, the petitioners herein appeared in that

examination. It is their case that they got selected and their names were mentioned in select list and accordingly, select list was forwarded by

respondent No.4/Superintendent of Police, Korba to respondent No.3/Inspector General of Police, Bilaspur Range, Bilaspur by letter dated 10.7.2008.

On receipt of said select list, respondent No.3 finding complaint in recruitment on the post of Constable by order dated 9.9.2008 (Annexure PÂ2)

cancelled the entire select list / selection process, but when the matter was brought to notice of respondent No.2/Director General of Police, Police

Headquarters, Raipur, respondent NO.2 by order dated 10.9.2008 (Annexure PÂ3) stayed the order passed by respondent No.3 and directed

respondent No.3 to examine the select list stating that whether recruitment has been done in accordance with law, whether reservation rules have

been followed, whether any irregularity has been committed in recruitment process and any lapse or negligence apparent on the face of record.

Thereafter, respondent No.3 examined the matter and forwarded the report to respondent No.2 and thereafter, respondent No.2 in exercise of powers

conferred under the provisions of the Chhattisgarh Karyapalik Bal Aarakshak (Bharit Tatha Sewa ki Sharte) Niyam, 2007 (hereinafter called as

'Rules of 2007') by order dated 10.6.2009 (Annexure RÂ1) accepted the report of respondent No.3 and approved the order of cancallation of

selection process as directed by respondent No.3 on 9.9.2008. In the meanwhile, new recruitment process commenced on 4.6.2009 (Annexure PÂ4)

and thereafter, the petitioners herein filed the instant writ petition on 25.6.2009 claiming that advertisement dated 4.6.2009 (Annexure PÂ4) be

quashed and the petitioners be appointed on the post of Constable stating that nonÂappointment is illegal and arbitrary and order of respondent No.3

dated 9.9.2008 has already been stayed by respondent No.2 by order dated 10.9.2008.

The State has filed its return stating interÂalia that since serious irregularities were noticed by respondent No.3, therefore, recruitment process was

cancelled on 9.9.2008 though it was subsequently stayed by respondent No.2 on 10.9.2008, but after conducting enquiry as directed by respondent

No.2 on four points, respondent No.2 has approved the order of respondent No.3 dated 9.9.2008 by order dated 10.6.2009 and new recruitment

process has been initiated pursuant to the advertisement dated 4.6.2009 (Annexure PÂ​4), as such, the writ petition deserves to be dismissed.

Mr.Gyan Prakash Shukla, learned counsel for the petitioners, would submit that recruitment process has been started and select list has been

published respondent No.3 has cancelled the selection process, which was entirely without jurisdiction and without authority of law, which was rightly

stayed by respondent No.2 by order dated 10.9.2008 (Annexure PÂ3). Once selection process has started and completed, it could not have been

cancelled by respondent No.3. He would further submit that the petitioners are duly selected candidates and they have undergone three tests for the

post of Constable and therefore, the impugned advertisement dated 4.6.2009 (Annexure PÂ4) deserves to be quashed and appropriate writ be issued

to the respondents to appoint the petitioners on the post of Constable. He would also submit that the State has obligation to act fairly in the matters of

recruitment. He would rely upon the judgment of the Supreme Court Bharat Petroleum Corporation Limited v. Maddula Ratnavalli and others (2007) 6

SCC 81, Mohinder Singh Gill v. Chief Election Commissioner, New Delhi (1978) 1 SCC 405, Shankarsan Dash v. Union of India (1991) 3 SCC 47, Lt.

CDR M. Ramesh v. Union of India (2018) 16 SCC 195 and Mrs. Asha Kaul v. State of J&K and others (1992) 2 SCC 573.

On the other hand, Mr.Ravi Bhagat, learned Deputy Government Advocate for the respondents/State, would submit that order dated 9.9.2008

cancelling the selection process though initially stayed by respondent No.2 by order dated 10.9.2008 and directed to make an enquiry to respondent

No.3, but when enquiry was conducted and report was sent to respondent No.2, respondent No.2 again by order dated 10.6.2009 (Annexure RÂ1)

approved the cancellation of selection process and thereafter the present writ petition was filed by the petitioners on 25.6.2009, but in this writ petition

neither the order dated 9.9.2008 cancelling selection process nor order dated 10.6.2009 (Annexure RÂ1) approving the cancellation of select list /

selection process has been called in question, therefore, order dated 9.9.2008 cancelling the select list / selection process has become final and duly

been approved by respondent No.2 by order dated 10.6.2009 (Annexure RÂ1) and as such, in absence of challenge to the orders dated 9.9.2008 and

10.6.2009, the present writ petition deserves to be dismissed. He would further submit that selected candidates have not indefeasible right to be

appointed particularly when irregularities were noticed by respondent No.3 and consequently, selection process has already been cancelled and

approved by respondent No.2, as such, the writ petition deserves to be dismissed.

At this stage, Mr.Gyan Prakash Shukla, learned counsel for the petitioners, would submit that certain documents, which have been obtained under

Right to Information Act, 2005, have been filed by covering memo, which shows that concerned recruitment process was never cancelled, as such,

the impugned advertisement deserves to be quashed.

I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost

circumspection.

Recruitment on the post of Constable is governed by the Rules of 2007. SubÂrule (8) of Rule 7 of the Rules 2007 defines the procedure for

approval of select list which states as under:Â​

A careful perusal of the aforesaid rule would show that select list will be sent along with documents to the Inspector General of Police for approval

and the Inspector General of Police will examine as to whether the recruitment is in accordance with law, whether reservation rules have been

followed, whether any complaint with regard to the irregularities in recruitment is correct and any other lapse in recruitment and if any of the

discrepancy is noticed, the Inspector General of Police is competent to cancel the recruitment and copy will be sent to the Police Headquarters.

Reverting to the facts of the present case in light of the aforesaid Rules, it is quite vivid that respondent No.4 as noticed hereinabove sent the

select list to respondent No.3 and respondent No.3 after noticing the irregularities in recruitment process decided to cancel the selection process by

order dated 9.9.2008 (Annexure PÂ2), but respondent No.2 by order dated 10.9.2008 (Annexure PÂ3) directed to respondent No.3 to make enquiry

on four points as mentioned in subÂrule (8) of Rule 7 of the Rules 2007 and when enquiry as directed was concluded and finding the report

acceptable, respondent No.2 accepted the report of respondent No.3 and approved the cancellation of selection process by order dated 10.6.2009

(Annexure RÂ1), as such, cancellation of select list / selection process as on date the order dated 9.9.2008 has become final and duly approved by

respondent No.2. Thereafter, writ petition has been filed by the petitioners on 25.6.2009, but surprisingly neither the order dated 9.9.2008 cancelling

the select list / selection process nor order dated 10.6.2009 approving the cancellation of select list have been called in question, as such, both orders

have become final and cancellation of select list in which the petitioners were selected stood cancelled on the date of filing writ petition, but the

petitioners chose not to question those orders for reason best known to them.

In view of that, selection process in which the petitioners were selected stood cancelled and that has become final and therefore, no relief directing

their consideration or appointment can be granted by this Court in writ petition filed by the petitioners in exercise of jurisdiction under Article 226 of

the Constitution of India, as such, the petitioners are not entitled for grant of relief No.10.2.

At this stage, learned counsel for the petitioners, would submit that covering memo has been filed by the petitioners submitting certain documents

which they have obtained under RTI Act, which goes to show that 2008 selection process was never cancelled.

This argument cannot be permitted to be raised for more than one reason. Firstly, the petitioners on their own showing filed document dated

9.9.2008 (Annexure PÂ2) stating that selection process has been cancelled by respondent No.3 and it has been stayed by respondent No.2, as such,

contradictory and inconsistent stand cannot be allowed to be taken that too by covering memo. Even no rejoinder has been filed.

Rule 52 and 53 of the High Court of Chhattisgarh Rules, 2007 provides as under:Â​

“52. An answer to the rule nisi or the notice to show cause shall be made supported by an affidavit, and by serving a copy thereof along with the

copy of annexure(s), if any, upon the petitioner or his Advocate, as the case may be, not later than the date fixed for showing cause.

No further return, affidavit or document shall be filed by any party except with the leave of the Court.â€​

The aforesaid rule clearly provides that filing of counter affidavit is right of the respondents and thereafter no further return, affidavit or document

shall be filed by any party except with the leave of the Court. While filing covering memo, neither leave has been sought by the petitioners nor it has

been granted by this Court.

It is well settled law that a plea not raised in the writ petition cannot be allowed to be raised even by rejoinder by the petitioner. (See M.S.M.

Sharma v. Sri Krishna Sinha and others AIR 1959 SC 395, B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. and others 2006 (11) SCC 548 and

this Court has also in the matter of Sanat Kumar Shukla v. State of Chhattisgarh and Ors. 2018 (II) MPJR (SC) 19 has clearly held that plea not

raised in written statement cannot be allowed to be raised by way of rejoinder.

In the instant case, by filing covering memo which is even not rejoinder, new plea cannot be permitted to be raised, which is contradictory and

inconsistent, to the pleading raised by the petitioners in their original writ petition.

The petitioners have also called in question the advertisement dated 4.6.2009 (Annexure PÂ4) issued for fresh appointment on the post of Police

Constable after cancellation of earlier recruitment process for the post of Police Constable. On being asked, it is stated by learned counsel for the

petitioners at the Bar that the petitioners have also appeared in second recruitment process initiated pursuant to advertisement dated 4.6.2009, but they

could not be selected and appointed on the post of Police Constable, which they have admittedly not questioned by filing separate writ petition or by

amending this writ petition, as such, no relief can be granted to the petitioners quashing the advertisement dated 4.6.2009 (Annexure PÂ4). The

judgments cited by learned counsel for the petitioner is clearly distinguishable in view of finding recorded hereinabove.

As a fallout and consequence of the aforesaid discussion, I do not find any merit in this writ petition. Accordingly, the writ petition being devoid of

merit is liable to be and is hereby dismissed. No order as to cost(s).