Harshadsinh Bhupatsinh Chavda and Others vs State of Gujarat and Others

K.M. Thaker, J.—Heard Mr. Patel, learned advocate for the petitioners and Mr. H.S. Soni, learned AGP for the respondent State. In present petition the petitioners have, inter alia, prayed that:-

21 (A) Be pleased to declare that the action of the respondent in preparing separate select and wait list of armed and unarmed Lok Rakshak is illegal and contrary to the advertisement and selection process;

(B) Be pleased to hold that the action of the respondent in not operating wait list of Lok Rakshak as stated in the petition is illegal and accordingly.

(C) Be pleased to direct the respondents to operate wait list to give appointments to the petitioners as stated in the petition;

(D) Pending admission and till final disposal of this petition direct the respondents to keep 9 post vacant for the petitioners in the event they fill up vacant posts under new recruitment process;

(E).........

At the outset, it is necessary and appropriate to clarify and mention that though in paragraph No. 21(A) the petitioners have prayed that the action of preparing separate select and wait list may be declared as illegal, at the time of hearing, the only contention raised and only relief prayed for by the learned advocate for the petitioners is for appropriate direction to the respondents to operate the waiting list and grant appointment to the petitioner Nos. 5, 7 and 8 whose names are included in the waiting list.

Learned advocate for the petitioners also declared that so far as the other petitioners i.e. except petitioner Nos. 5, 7 and 8 are concerned they have been granted appointment, when the waiting list was operated and that therefore their grievance now do not survive and present petition is now restricted to and required to be considered only qua petitioner Nos. 5, 7 and 8.

In view of the said submission and stipulation and in light of the fact that at the time of hearing of present petition, only relief prayed for is with regard to the direction to respondent No. 2 to operate the wait list, present petition is considered to that extent only.

The grievance raised by learned advocate for the petitioners in present petition is that the respondents are not operating waiting list and because of their decision or inaction, the petitioner Nos. 5, 7 and 8 whose names appear in the waiting list, are not being appointed to the post of Lok Rakshak.

5.1 Learned advocate for the petitioners claimed that the respondents may be directed to operate the waiting list and to issue appropriate orders granting appointment to the petitioner Nos. 5, 7 and 8 whose names appear in waiting list.

So far as the relevant facts are concerned, it has emerged from the record and submission by learned advocate for the petitioners that somewhere in 2009 advertisement inviting applications for appointment of armed/unarmed Lok Rakshak was issued.

6.1 Upon conclusion of the required procedure as per rules, select list and waiting list of the candidates in armed and unarmed category of Lok Rakshak were prepared.

6.2 The petitioners have claimed that at the relevant time when the advertisement was issued, total vacancies were of 8734 posts of armed and unarmed Lok Rakshak in 2009.

6.3 The petitioners have also mentioned that by the end of April 2012, appointments of 7925 armed and unarmed Lok Rakshak have been granted however (according to petitioners'' claim) about 7378 persons have resumed their duties. It is further alleged that subsequently appointments to other 281 candidates were offered however 32 persons did not resume duties/did not accept the appointments.

In this background learned advocate for the petitioners alleged that about 298 posts still remain vacant.

7.1 On the said premise, learned advocate for the petitioners submitted that respondents should be directed to operate the waiting list and they should be directed to appoint the petitioner Nos. 5, 7 and 8 of present petition.

7.2 Learned advocate for the petitioners also submitted that the petitioners have made representation for operating waiting list however, the petitioners have not received any reply in response to the said representation.

Learned advocate for the petitioners relied on the decision in case between Gujarat State Dy. Executive Engineers'' Association Vs. State of Gujarat and Others, .

MR. Soni, learned AGP has appeared and opposed the petition.

9.1 One of the main grounds on which the petition is opposed is life of the waiting list. It is claimed that as per rules the life of waiting list is two years and according to the provision, the waiting list has expired and therefore respondents now cannot operate the waiting list.

9.2 Another ground on which the petition is opposed is that the respondents have already issued fresh advertisement for the recruitment and the results have also been declared and that therefore now there is no scope for operating the waiting list prepared in 2009.

9.3 The third contention on which the learned AGP has opposed the petition is that names of the petitioners are beyond the vacant posts available with the authority and that all posts are filed up and that therefore also the petitioners have not been granted appointments.

9.4 Learned AGP relied on the reply affidavit and submitted that in view of such position, the claim raised by the petitioners does not deserve to be granted. In paragraph Nos. 5 and 6 of the reply affidavit the respondents have mentioned that:-

I state that the office of the deponent has operated waiting list and thereby given appointment to as many as 38 in Unarmed Lok Rakshak and 298 in Armed Lok Rakshak vide order dated 18.09.2012 respectively, pursuant to the Advertisement dated 11.02.2009. I state that upon operation of the waiting list, in all 6 petitioners out of 9 petitioners, more particularly, petitioner no. 1, 2, 3, 4, 6 and 9 are included and appointed as Lok Rakshak. A copy of the order operation of the waiting list by order dated 18.09.2012 as well as list of candidates i.e. to the aforesaid petitioners is annexed hereto and marked as Annexure-RI Colly.

It is most respectfully submitted that petitioners nos. 5, 7 and 8 are not appointed as they are beyond the cut-off marks and vacant seats available with the authority. I further state that all the seats are filled in and no vacancy is available. It is noteworthy here that new Advertisement for Recruitment of police constable was already advertised and the result of said advertisement has recently issued and result is placed on official website of the office of the Police Department.

I have considered the submissions made by learned advocate for the petitioners and learned AGP and I have also perused the material available on record of present petition.

10.1 It is not in dispute that the advertisement in response to which the petitioners applied was issued in 2009.

10.2 It is also not in dispute that the selection list and waiting list of the candidates for the category of armed and unarmed Lok Rakshak were prepared in 2009.

10.3 Learned advocate for the petitioners has also not opposed or disputed the submission by learned AGP that as per rules life of waiting list is of two years.

10.4 So far as the submission made by learned AGP that fresh advertisement is issued and therefore also respondents cannot operate waiting list, learned advocate for the petitioners submitted that fresh advertisement has been issued for the post of constable and the earlier advertisement was for the category of Lok Rakshak and that therefore the two advertisements process cannot be mixed up.

However, learned AGP clarified that according to the respondents it is for the same post and same category inasmuch as, Lok Rakshak is subsequently given post of designation of constable.

10.5 Even without entering into the dispute as to whether the fresh advertisement is for the same post/category or different post, it appears that in light of the undisputed fact that the waiting list was prepared in 2009 and that the life of waiting list is two years, it would not be proper or justified for this Court to issue any direction at this stage to the respondents to operate said waiting list (which was prepared in 2009) and to grant appointment to the persons in the said waiting list.

In the decision in case between Gujarat State (supra) on which learned advocate for the petitioners has relied, the Hon''ble Apex Court has observed that:-

A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.

The entire appointment of direct recruits, therefore, from the waiting list was not proper. But these persons have been appointed and are working now at least for five years. It would, therefore, be unjust and harsh to quash their selection at this stage. Therefore, while refraining from quashing the appointment made in pursuance of the direction issued by the High Court, we are of the opinion that the waiting list for one year cannot furnish source of recruitment for future years, except in very exceptional cases. It is, however, necessary to add that non-holding of examination at the instance of the Government could not result in reducing the quota of direct recruits to be worked out on the principle for determination of such vacancies. Therefore, if vacancies had collected between 1983 and 1993 due to interim orders passed by the Courts, and they have not been taken into account when the examination for 1993 was held then it would be expedient to direct the Government to work out the same immediately and send the requisition to the Commission for holding selection for if the next examination is going to be held within one year from today. We may clarify that it is nobody''s case that the quota rule has broken. Therefore, the direction is being issued to protect the quota of direct recruits during 1983 to 1993 in the peculiar facts of the present case.

From the above quoted observations by Hon''ble Apex Court it becomes clear that waiting list is to be operated only for contingency and only if selected candidates do not join pursuant to the orders issued in their favour. It also becomes clear that waiting list cannot be treated as or converted into source of recruitment. If the life of waiting list is continued and it is operated for long span then the prospective candidates who may become eligible for appointment on vacancies, will be deprived of their right of being considered, or for competing, for appointment.

In this view of the matter, it would not be just and/or proper for this Court to direct the respondents to operate the waiting list which was prepared in 2009 and to grant appointment to the petitioners on the basis of such waiting list.

In present case it is not the allegation of the petitioners that the respondents have acted arbitrarily in operating the waiting list.

12.1 It is also not the allegation of the petitioners that persons below the serial number of the petitioners have been granted appointment.

12.2 Thus, in absence of any allegation about arbitrariness or any illegality or any malafide or discrimination in operating the waiting list, this Court would not be justified in directing the respondents to operate waiting list, more particularly when the waiting list in question was prepared in pursuance of advertisement issued in 2009 and the life of waiting list has, undisputedly, expired after two years and the respondents have declared that/the petitioners are beyond the available vacancy.

12.3 However, since the petitioners have made representation, the competent authority may take up the said representation for consideration and pass necessary and appropriate order and convey the decision to the petitioners.

It will not out be of place to take note of the fact at this stage that six out of the nine petitioners, even as per clarification by learned advocate for the petitioners, have been appointed and they have been granted appointment.

13.1 However, now when the life of the waiting list has expired and when there are no allegation about arbitrariness or illegality, this Court does not see any justification in issuing direction to the respondents to operate the said waiting list of 2009.

Having regard to the facts emerging from the record of the petition and submissions made by learned advocate for the petitioners and by learned AGP, any case for issuing directions to the respondents to operate waiting list and grant appointment to the petitioner Nos. 5, 7 and 8 is not made out and the Court does not find any justification for passing such direction. For the foregoing discussions and aforesaid reasons, the petition is accordingly disposed of.