Gujarat High Court
Commissioner Of Police, Ahmedabad And ... vs Santosh Vasant Mali And Ors. on 24 November, 1994
Equivalent citations: (1995)2GLR1640
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, C.J.
1. Admit. We have heard the Counsels appearing for the parties at length and we have proceeded to pronounce this judgment immediately.
2. The respondents are those persons who had applied for being recruited as Police Constables in the year 1990. A select list was prepared in February 1991. Out of the select list, the petitioners were not appointed and thereupon a writ petition was filed contenting that, because the names of the petitioners had appeared in the select list, they should be appointed as and when vacancies arise. The contention of the respondents in the writ petition was that the select list has been operated even after February 1992 and the number of persons whose names were included in the select list was 1690 and that included in the waiting list was 169 candidates.
3. The learned single Judge came to the conclusion that the select list had been operated even after one year of its preparation and there was no reason as to why the respondents should be deprived of an opportunity of being appointed. The learned single Judge then directed the appellants herein as follows :
"(i) The respondents would first take up exercise to determine exact number of vacancies which were available on the post of Unarmed Police Constables in the year 1990 at the time when applications were invited.
(ii) The respondents would determine the number of vacancies which became available thereafter and the vacancies which remains unfilled after giving 983 appointments on the basis of the aforesaid select list and prior of 31st December, 1992.
(iii) The respondents shall also determine the number of vacancies which became available after 31st December 1992 till the date of the judgment i.e., today.
(iv) The respondents would immediately proceed to consider and give appointments to at least 175 candidates out of the select list in accordance with their merit and beyond the merit position 983 and in case any of the candidates do not join or do not avail of the appointments the person next lower in position in the merit list will be considered for giving appointment on the post of Unarmed Police Constables notwithstanding the age limit."
4. The effect of the aforesaid direction is that the vacancies which became available even after 31st December 1992 were required to be filled up from out of the persons borne on the select list prepared in February 1991. It is this direction which has been challenged by the State of Gujarat in the present appeal.
5. From the affidavit-in-reply which was filed by the appellants herein, it appears that the Commissioner of Police was required to prepare a select list of only 680 candidates. This was a per the Government Resolution of Home Department dated 19th December, 1990. According to the said Government Resolution, the select list which has to be prepared is to be of the actual vacancies which arises as on the date of advertisement and in preparing the select list or communicating the number of vacancies to the Employment Exchange, regard has also to be given to the vacancies due to arise because of retirement, death, promotion or actual newly sanctioned vacancies of which the Government has already passed orders and vacancies which are expected to be sanctioned but not included in the preceding recruitment process. The vacancies which are absolutely certain to be sanctioned were also to be taken into consideration while preparing the select list. A separate waiting list containing 10% of the strength of the total number of candidates on the select list was also to be prepared. According to the affidavit of the Government, in accordance with the said Government Resolution dated 19th December 1990, a select list of 680 candidates together with waiting list of 10%, that is, 68 candidates, alone should have been prepared. The Government in its affidavit has categorically stated that there was no justification for the Commission of Police preparing a select list of 690 candidates. Be that as it may, it has further been averred that the select list was prepared and published on 28th February 1991 and was to remain in force, as per the said Government Resolution, upto 27th February 1992. Till that time, 711 candidates were appointed strictly in accordance with merits on the basis of the said select list. As per the said Government Resolution, the select list expired on 28th February, 1992.
6. More vacancies came into existence after 28th February, 1992. As preparation of a fresh select list would have taken time, the Commissioner of Police requested the State of Gujarat for permission to operate the 1991 select list for the purpose of filling up 174 posts. Permission was granted by the State of Gujarat by extending the select list upto 31st December, 1992. It was further stated that this list should be operated only upto Serial No. 1074. It was also stipulated by the State Government that the list would be treated as cancelled after 31st December, 1992. According to the appellants herein, upto 31st December 1992, constables upto Serial No. 983 were appointed. Thereafter, the said select list has not been operated.
7. It has been vehemently contended by the learned Counsel for the respondents that, once the select list has been operated even after 28th February, 1992, there was no justification for the State of Gujarat to have decided not to continue with the operation of the said list even after 31st December, 1992. It is also contended that the select list has been altered or changed by the State of Gujarat and persons who were junior in the merit list were appointed earlier than others. Particulars in regard to that have been given in the writ petition and out of this, four persons are the petitioners.
8. Coming first to the question of the operations of the select list, it is not in dispute that, according to the Government Resolution dated 19th December 1990, the normal term of the select list is only one year. Prior to that, the Circular of 5th June, 1982 has provided that the select list which is prepared would remain in force for one year or till the preparation of a new select list whichever is earlier. The effect of the old Circular was that more than one select list could be prepared within one year. This obviously was not though to be desirable and that is why in the Resolution of 19th December, 1990 it was stated that the select list which is prepared should be in operation for one year. Meaning thereby that, on the second list being prepared, the first list would come to an end and that could be within a period of one year.
9. When 680 vacancies were in existence or were visualised, then there was certainly no justification for a select list to contain as may as 1690 names. Why such a large select list was prepared is not necessary for this Court to go into. But it is quite evident that the said preparation of the select list and the nexus of the number of vacancies were clearly in conflict and in violation of the said Government Resolution of 19th December, 1990. It is this administrative lapse, if it is only that, which has resulted in the present litigation.
10. The Supreme Court has now categorically held in a series of judgments that a person who has been placed on the select list has no inherent right of appointment. In Shankarsan Dash v. Union of India reported in 1991 II CLR 180 and in Sabita Prasad v. State of Bihar, reported in 1992 (3) S. C. at page 361, it was held that a person who is selected does not, on account go being empanelled alone, acquire an indefeasible right of appointment. Empanelment was at the best a condition of eligibility for purposes of appointment, and that by itself does not amount to selection or create a vested right to be appointed unless the relevant service rule says to the contrary. The said decisions were followed by the Supreme Court in the case of Asha Kaul v. State of J. & K. reported in 1993 I CLR 966. In Asha's case (supra), though the select list was prepared, no vacancies, in respect of which the list was prepared appeared to have been filled. It was only with regard to this that the Supreme Court observed that the exercise of preparation of a select list could not be reduced to a farce. The Supreme Court, contrary to what is sought to be contended before us by the learned Counsel for the respondents, did not observe that the select list is to remain in operation even after the notified vacancies had been filled. Even recently, two decisions of the Supreme Court have taken the same view. In State of Bihar v. Secretariat Assistant S. E. Union, reported in 1994 I CLR 181, it has been held that a candidate who has been selected and empanelled does not acquire an indefeasible right to be appointed. In this case, the High Court had directed to appoint all the empanelled candidates according to their position in the merit list against the vacancies which had arisen after the date of advertisement and the preparation of the select list. The Supreme Court reversed the decision of the High Court and came to the conclusion that issuance of such direction was not proper and could not be sustained. In that case, the advertisement had been issued in the year 1985. The High Court directed that even for vacancies which had come into existence thereafter should be filled from the select list prepared pursuant to 1985 advertisement. The Supreme Court while disproving this direction observed that : "Since no examination has been held since 1987, persons who became eligible to compete for appointments were denied the opportunity to take the examination and the direction of the High Court would prejudicially affect them for no fault of theirs". In the present case also, the direction of the learned single Judge would have the effect of depriving of those candidates who have become eligible for taking the examination after 31st December, 1992 and in respect of those vacancies which are in excess of 983 which have already been filled and which appeared to have come into existence after 31st December, 1992.
11. The last decision on the point is that of State of Bihar v. Madan Mohan Singh, reported in AIR 1994 S.C. at page 765. While following the earlier decision, it was observed that, where a particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list of 129 candidates which had been prepared was to hold good only for the purpose of filling up these 32 vacancies and no further. It was further held that the list got exhausted on 32 vacancies being filled despite the fact that the merit list contained the names of 129 candidates. In this connection, the Supreme Court observed that, if the select list was to be kept subsisting for the purpose of filling up other vacancies also, that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process.
12. The inescapable conclusion which follows from the aforesaid decisions of the Supreme Court is that a select list is valid in respect of only hose vacancies as contemplated by the Government Resolution of 19th December, 1990. In other words, it is in respect of the actual vacancies in existence or anticipated vacancies within the period of one year in respect of which the selection list can be in operation. The learned single Judge, with respect, was not right in issuing a direction which is contrary to the aforesaid ratio of the Supreme Court.
13. Coming to the question with regard to the change in the merit list, the appellants, in their affidavit-in-reply have admitted that a change did take place. The explanation which has been offered is that, when the select list was prepared the names of the persons were arranged in order in which they secured marks in written as well as oral tests. All those persons who had secured the same number of marks had earlier been placed in the select list without following any principles, but the Government had thereafter amended the selection list and the list was prepared in the descending order of the age against the candidates who had secured the same number of marks. In other words, the total marks being equal, the names of the candidates were placed in the select list according to the descending order of age. The eldest persons were placed at serial number higher than the younger persons. In our opinion, this was a just and fair principle which was adopted. This principle was adopted not with regard to 711 vacancies which were filled upto 28th February, 1992, but the select list appears to have been amended and this principle incorporated only with regard to those vacancies which arose and with are filled upto 31st December, 1992. With regard to the change in the order of the merit list while granting extension of the select list and the change being in accordance with the rational principle, we do not find any reason to interfere with the action of the respondents.
14. For the aforesaid reasons, this appeal is allowed. The judgment of the learned single Judge is set aside. The petition filed by the respondents is dismissed.