Madhya Pradesh High Court
The State Of Madhya Pradesh vs Pushpendra Singh Bhadoriya on 10 January, 2018
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
1
Gwalior
10.1.2018
Shri Raghvendra Dixit, learned Govt. Advocate for
the appellants/State.
Shri Prashant Sharma, learned counsel for the
respondent.
With the consent of learned counsel for the
parties, the matter is finally heard.
(1) This appeal under Section 2(1) of Madhya Pradesh
Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005
at the instance of the State of Madhya Pradesh and its
functionaries is directed against the order dated 24/06/2014
passed in Writ Petition No. 7674/2012.
(2) The issue which crops up for consideration is whether
it will be lawful for an incumbent having been appointed
from a select list to later seek appointment to another post
falling vacant after his appointment; which is available to a
wait listed candidate. Learned Single Judge holds the law in
favour of such incumbent, the correctness whereof is being
questioned by the State of Madhya Pradesh.
(3) The relevant facts necessary for adjudication briefly
are that, 515 posts of Madhya Pradesh Police Executive
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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(Non-Gazetted Service) Technical and Non-Technical Group
of Subedar, Sub-Inspector, Sub-Inspector (Radio Technician),
Sub-Inspector (Finger Print), Sub-Inspector (Questioned
Documents) and Platoon Commander were advertised by the
Madhya Pradesh Professional Examination Board (for brevity
"Board") vide selection examination 2011. After the written
examination the Board declared the results. On the basis of
merit of marks secured in the written examination,
candidates equal to seven times the vacancy advertised for
technical and non-technical group, separately in each
category, were declared qualified for the second stage of
physical proficiency test and interviews. Selection
Committee of the Police Department conducted the Physical
Proficiency Test and the Interviews. Whereafter final list was
declared on 30/12/2011. Cut-off marks in final selection was
as under:-
Sl.No. Post Category Cut-Off Mark
1 Subedar UR/Police 257
2 Subedar UR/Open 235
3 Sub Inspector (Distt) UR/Police 239
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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4 Sub Inspector (Distt) UR/Open 223
5 Sub Inspector (SB) UR/Police No Vacancy
6 Sub Inspector (SB) UR/Open 222
7 Platoon Commander UR/Police 221
8 Platoon Commander UR/Open 216
(4) The respondent who belongs to unreserved police
category in the non-technical group had given the
preference for Sub-Inspector (DEF), Sub-Inspector (Special
Branch), Subedar, Platoon Commander. And having obtained
222 marks was appointed as Platoon Commander on the
basis of "merit cum preference subject to availability of
vacancies." Similarly, respondents No. 2 and 3, i.e. Nilesh
Awasthy and Darshan Shukla in the same category since had
less than the cut off marks were not selected but were
placed in waiting list at Sr.No. 1 and 2 respectively.
(5) That all the selected candidates who were appointed
were called upon to report by 31/05/2012 for training
whereafter actual vacancies arising because of non reporting
of selected candidates was worked out; and wait listed
candidates were given appointment to these posts. As
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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respondents No. 2 and 3 were offered and appointed as Sub-
Inspector (DEF), the grievance raised by respondent No. 1
was that the said post ought to have been offered to him
first. That being the cause, learned Single Judge on the basis
of the order passed in Writ Petition No. 4824/2012(S):
Santosh Yadav Vs. State of Madhya Pradesh and others
decided on 14/02/2013 allowed the claim of the respondent
No. 1 by the impugned judgment.
(6) Before dwelling on the issue which crops up from
consideration apt it would be to have a look at the
relevant rules.
(7) Rules which govern the recruitment are Madhya
Pradesh Police Executive (Non-Gazetted) Service
Recruitment Rules, 1997 (referred to as "Rules of
1997"). These Rules are framed by the Governor in
exercise of powers conferred by proviso to Article 309
of the Constitution of India and published in M.P.
Gazette dated 16.5.1997.
(8) Rule 3 makes a provisions of Rules of 1997
applicable to every member of Madhya Pradesh Police
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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Executive (Non-Gazetted) Service. Rule 5 provides for
classification of the service, the number of posts
included in the service and the scale of pay attached
thereto as specified in Schedule-I. Schedule-I includes
the posts of Sub Inspector, Sub Inspector (Radio), Sub
Inspector (Finger Print), Sub Inspector (Questioned
Documents), Sub Inspector (Lady) and Platoon
Commander which are classified as S.P.S. Class 3
posts and are in pay scale of Rs.1400-40-1440-50-
2340. Thus, all 551 posts which were notified for
recruitment carried similar pay scale and status.
(9) At this stage pertinent it is to mention that
though in the brochure which was published by M.P.
Professional Examination Board for Selection
Examination, 2011 the post of Subedar and Platoon
Commander are shown to be in different pay band.
However, vide notification dated 6.8.2012 issued in the
name of Governor all the posts have been directed to
carry similar pay scale with effect from 1.9.2007. The
notification is brought on record of the writ petition as
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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Annexure R/3. This fact is not disputed by respondent
no.1.
(10) Further more, Rule 6 (1) (a) of the Rules of 1997
envisages the direct recruitment by selection as one of
the method of recruitment.
(11) Sub-Rule (6) of Rule 6 envisages that the
candidate must specifically mention, in the application
form for recruitment the name of the post for which
he desires. The name of only such candidates who
have specifically expressed their consent for
recruitment to posts to the technical Sub Inspector
(Radio)/(Finger Print)/(Questioned Documents) and who
possess qualification mentioned in Schedule-III shall
only be considered. Further more Sub-Rule (8) of
Rule 6 lays down the procedure of selection by
competitive examination.
(12) Rule 7 stipulates that all appointments to the
service after coming into force of the Rules of 1997
shall be made by the appointing authority and no such
appointment shall be made except after selection by
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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one of the methods of recruitment specified in rule 6.
(13) Rule 8 lays down the conditions of eligibility of
candidates for direct recruitment. Rule 11 envisages
the provisions as regard to direct recruitment through
competitive examination.
(14) Rule 12 and 13 respectively stipulates:
"12 List of candidates recommended by
the Committee. - (1) The Committee shall
forward to the appointing authority a list
arranged in order of merit of the candidates
who have qualified by such standards as
fixed by it and of the candidates belonging
to the Scheduled Castes, Scheduled Tribes
and Other Backward Classes who though not
qualified by that standard, are declared by
the committee to be suitable for
appointment to the service with due regard
to the maintenance of efficiency of
administration. The list shall also be
published for general information.
(2) Subject to the provision of these rules
and of the Madhya Pradesh Civil Service
(General Conditions of Service ) Rules, 1961,
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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candidates will be considered for
appointment to the available vacancies in
the order in which their names appear in
the list.
(3) The inclusion of a candidate's name
in the list confers no right to appointment
unless the appointing authority is satisfied,
after such enquiry as may be considered
necessary, that the candidate is suitable in
all respect for appointment to the service.
13. Appointment of the Service from
the select list - Final merit list for direct
recruitment shall be prepared on the basis
of marks obtained in written examination,
physical proficiency test and interview.
Appointment shall be made in order of
seniority on the basis of preference given by
candidate and availability of posts provided
that only those candidates will be
considered for the post of Platoon
Commander/Subedar who obtain a
minimum of 60% marks in the physical
proficiency test.
The select list issued by the Appointing
Authority shall remain valid for a period of
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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one year from the date of its issue.
(15) That by virtue of amendment vide notification
No.2(a)287-2010-B-4-II published in M.P. Gazette dated
4 th March, 2011. Rule 13A was inserted in the Rules of
1997 which is in the following terms: -
"13A Waiting List - A waiting list comprising
names of candidates numbering 10% of the
advertised vacant posts shall be prepared in
the order of merit. This waiting list shall
remain valid for 3 months from the date of
commencement of basic training. If any
selected candidate from final select list
does not join in stipulated time, then
candidate in waiting list will be offered
appointment in the order of merit."
(16) Combined reading of these Rules, more particularly
Rule 13 and 13A of the Rules of 1997 establishes that the
appointment through direct recruitment is made from final
merit list in order of seniority on the basis of preference
given by the candidate and availability of posts. And though
proviso to Rule 13 of the Rules of 1997 envisages that the
select list issued by the Appointing Authority shall remain
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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valid for a period of one year from the date of issue.
However, trite it is that a select list once made does not exist
for ever. It gets exhausted on completion of the selection
process. In respect whereof reference can be had of the
decision in State of Bihar and another Vs. Madan
Mohan Singh and others, AIR 1994 SC 765 wherein
Their Lordships were please to hold:-
"7.......................As noted above, the
temporary vacancies arose subsequently but
even otherwise in the view we are taking
namely that the 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 prepared on
the basis of the written test as well as the viva
voice will hold good only for the purpose of
filling up those 32 vacancies and no further
because the said process of selection for those
32 vacancies got exhausted and came to an
end........"
(17) Similarly, the life of the select list gets exhausted if the
requisite candidates are selected for the specified vacancies
and appointments made accordingly. It is held in Madan Lal
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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Vs. State of J & K, AIR 1995 SC 1088 by Their
Lordships:-
"23....... We cannot agree with the learned
counsel for respondents that during the period
of one year even if all the 11 vacancies are filled
in for which requisition is initiated by the State
in the present case and if some more vacancies
arise during one year, the present list can still
be operated upon because the Commission has
sent the list of 20 selected candidates. As
discussed above, the candidates standing at
serial Nos. 12 to 20 in the list can be
considered only in case within one year of its
publication, all the 11 vacancies do not get filled
up for any reason. IN such a case only this
additional list of selected candidates would
serve as a reservoir from which meritorious
suitable candidates can be drawn in order of
merit to fill up the remaining requisitioned and
advertised vacancies, out of the total 11
vacancies. If that cannot be done for any
reason within one year of the publication of the
list, even this reservoir will dry up and the
entire list will get exhausted.........."
(18) The principle of law which evolves from these
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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decisions that the select list once exhausted loses its
existence, conversely would mean that, the persons once
appointed from such select list cannot relegate themselves
to the stage prior to their appointment even in case of
contingencies such as some of selectees not reporting or
later-on resigning. And the post so vacated is either available
for the fresh recruitment or to the wait listed candidates, as
in the present, if such vacancy arises within three months
from the commencement of basic training. Thus the post
falling vacant after the exhausting of panel is not available to
an incumbent already appointed.
(19) Present appellants have adverted to factual aspects in
paragraph 9 of their return filed in the Writ Petition. It is
contended that out of 317 candidates selected in the main
merit list declared on 30/12/2011 to the post Sub
Inspector (Distt. Executive Force) Seven candidates did
not report for training. Similarly there were many other
candidates who were unfit or did not join on the selected
posts, because of whom 48 vacancies became available for
the candidates in the waiting list as under:
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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Table (1)
S. No. Category Name of Post Vacancy
1 Vacancy Create Subedar 01
by OPEN,
FEMALE, Sub Inspector (Distt. 07
POLICE Executive Force)
PERSONNEL
candidates (All Sub Inspector (Spl. 02
being Non ex- Branch)
servicemen)
Platoon Commander 29
Sub Inspector (Radio) 02
2 Total 41
3 Vacancy Sub Inspector (Distt. 05
Created by Executive Force)
Ex-servicemen
Platoon Commander 02
candidates
4 Total 07
5 Grand Total 48
The caste category wise break-up of 48 Vacancies.
Table (2)
S. Category Name of Post UR ST SC OB Total
No. C
1 Vacancy Subedar 01 0 0 0 01
Create by
OPEN, Sub Inspector 03 02 0 02 07
FEMALE, (Dist. Executive
POLICE Force)
PERSONN
Sub Inspector 02 0 0 0 02
EL
(Spl.
candidates
Branch)
(All being
Non ex-
Platoon 15 02 10 02 29
servicemen)
Commander
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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Sub Inspector 0 01 0 01 02
(Radio)
2 Total 21 05 10 05 41
3 Vacancy Sub Inspector 03 0 0 02 05
Created by (Distt. Executive
Ex- Force)
servicemen
candidates Platoon 01 0 0 01 02
Commander
4 Total 04 0 0 03 07
5 Grand Total 25 05 10 08 48
Thus it is clear that 07 vacancy were created by Ex-
servicemen candidates. These 07 vacancies can be
filled up by only Ex-servicemen candidates. There
were only 03 Ex-servicemen candidates available in
the waiting list (UNRESERVED-2 and OBC-1)
accordingly following posts are allotted these three
Ex-servicemen candidates:
Table (3)
S. Name of Ex- Catago Post allotted
No. servicemen ry
candidates
1 Anil Kumar Yadav OBC Sub Insp. (Distt. Executive
Force)
2 Jitendra Singh UR Sub Insp. (Distt. Executive
Tomar Force)
3 Moh. Ansarul Haq UR Sub Insp. (Distt. Executive
Force)
After 3 Ex-servicemen candidates have been
THE HIGH COURT OF MADHYA PRADESH
Writ Appeal No.256/2014
State of M.P. and others Vs. Pushpendra Singh Bhadoriya
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allotted the posts of Sub Insp. (Distt. Executive
Force), following vacancies were left over:
Table (4)
S. Category Name of Post UR ST SC OB Total
No C
.
1 Vacancy Subedar 01 0 0 0 01
Create by
OPEN, Sub Inspector 03 02 0 02 07
FEMALE, (Distt.
POLICE Executive
Force)
PERSONNE
L
Sub Inspector 02 0 0 0 02
candidates (Spl. Branch)
(All being
Non ex- Platoon 15 02 10 02 29
servicemen) Commander
Sub Inspector 0 01 0 01 02
(Radio)
2 Total 21 05 10 05 41
3 Vacancy Sub Inspector 01 0 0 01 02
Created by (Distt.
Ex- Executive
servicemen Force)
candidates
Platoon 01 0 0 01 02
Commander
4 Total 02 0 0 02 04
5 Grand Total 23 05 10 07 45
Evidently, there were 4 post remained vacant reserved for Ex-servicemen candidates, but as there was no Ex- servicemen candidates left over in the waiting list in order to fill up these vacancies, therefore these 04 vacancies reserved for Ex-servicemen candidates were THE HIGH COURT OF MADHYA PRADESH Writ Appeal No.256/2014 State of M.P. and others Vs. Pushpendra Singh Bhadoriya 16 diverted in favour of Non Ex-servicemen Candidates. The breakup up 45 vacancies which become avail- able for Non Ex-servicemen candidates was as follows :
Table (5) S. Category Name of Post UR ST SC OBC Total No .
1 Vacancy Subedar 01 0 0 0 01
Create by
OPEN, Sub Inspector 04 02 0 03 09
FEMALE, (Distt.
(4 (2 (2M, (8M,
POLICE Executive
M) M) 1F) 1F)
Force)
PERSONN
EL
Sub Inspector 02 0 0 0 02
candidates (Spl. Branch)
(All being
Non ex- Platoon 16 02 10 03 31
servicemen) Commander
Sub Inspector 0 01 0 01 02
(Radio)
2 Total 23 05 10 07 45
That 14 posts were allotted to following unreserved candidates :
Table (6) S. Name of Ex- Categor Post allotted No. servicemen y Candidates 1 Nilesh Awasthi UR/P Sub Insp. (Distt.
Executive Force) 2 Rahul Pandey UR/Nil Sub Insp. (Distt.
Executive Force) THE HIGH COURT OF MADHYA PRADESH Writ Appeal No.256/2014 State of M.P. and others Vs. Pushpendra Singh Bhadoriya 17 3 Bhupendra Mani UR/Nil Sub Insp. (Distt.
Pandey Executive Force)
4 Darshan Shukla UR/P Sub Insp. (Distt.
Executive Force)
5 Kapur Tripathi UR/Nil Sub Insp. (Distt.
Executive Force)
6 Krishna Kumar UR/P Sub Insp. (Special
Paney Branch)
7 Jitendra Pal Singh UR/Nil Sub Insp. (Special
Jadaun Branch)
8 Bhupendra Diwan UR/P Platoon Commander
9 Shishir Doorwar UR/Nil Platoon Commander
10 Pradeep Singh UR/Nil Platoon Commander
Shekhawat
11 Narendra Singh UR/P Platoon Commander
Kushwaha
12 Amit Shrama UR/Nil Platoon Commander
13 Rohit Kumar Dubey UR/Nil Platoon Commander
14 Ravishankar Tiwari UR/Nil Platoon Commander
It is further observed that nine posts of Platoon Commander were left vacant but no male Unreserved candidate were available from the waiting list. Similarly various posts have been allotted to ST, SC and Unreserved candidates. In all various posts have been allotted to 31 candidates and 17 posts remain vacant and unfilled - 15 posts of Platoon Commander and 2 Posts of Sub Inspector (Radio), for which candidates were not available THE HIGH COURT OF MADHYA PRADESH Writ Appeal No.256/2014 State of M.P. and others Vs. Pushpendra Singh Bhadoriya 18 in the waiting list."
(20) Learned Single Judge evidently glossed over these factual aspects and the principle of law laid down by the Supreme Court. Instead applied the principle of "opt for waiting" which is generally provided in favour of candidates for admission in Medical and Engineering Colleges. In the case at hand no such Rule is commended at which permits a selected candidate to "opt for waiting". (21) Furthermore, learned Single Judge relied on the decision in W.P. No. 4824/2012: Santosh Yadav Vs. State of M.P. and others decided on 14/02/2013. In the said case the dispute was when once the wait listed candidate at Sr. No. 1 foregoes the appointment the post available to him would go to the second candidate in the wait list. Though we affirm this proposition. However we do not agree with the observation in paragraph 9 of the judgment that "on the date merit list in prepared, the candidate may not decide for which selection he will opt because he has offered candidature for other selection also and in the event of his selection to a superior or a favourable post, he may switch THE HIGH COURT OF MADHYA PRADESH Writ Appeal No.256/2014 State of M.P. and others Vs. Pushpendra Singh Bhadoriya 19 over to other better appointment. In that even even after preparation of the merit list candidate can forego his selection." These observations, in our humble opinion do not get support from the Rules of 1997 which nowhere lays down the concept of "opt for waiting". Thus the judgment in Santosh Yadav (supra) is not applicable in the case at hand. (22) Furthermore, learned counsel appearing for respondent no. 1 has placed reliance on the decision in Writ Petition No. 3134/2012 (Gokul Prasad Ajameriya Vs. State of M.P. and others) and W.P. No. 3135/2012 (Ranjeet Singar Vs. State of M.P. and others) decided on 06/08/2013 by the Indore Bench of this High Court and its affirmation in Writ Appeal No. 1109/2013 decided on 01/12/2014. It is evident from the decision in Gokul Prasad Ajameriya (supra) that learned Single Judge considering the pay scale depicted in brochure pleased to observe:
"..........The only justification offered in the return for appointing less meritorious candidates on a higher post is that the petitioner was selected in the main list of 30/12/2011 and as they were already selected, THE HIGH COURT OF MADHYA PRADESH Writ Appeal No.256/2014 State of M.P. and others Vs. Pushpendra Singh Bhadoriya 20 their case was not considered against the vacancies which were available on account of non availability of ex-servicemen candidates. Respondent have stated that as the petitioner was already undergoing training on the post of Platoon Commander, he was not offered on the post of Sub Inspector of Police and the respondents as they were not selected for any post even though less meritorious have been offered higher post of Sub-Inspector of police."
(23) It appears that Schedule I of the Rules of 1997 and the notification issued by the State Government on 06/08/2012 whereby the posts of Subedar, Sub-Inspector, Sub-Inspector (Radio Technician), Sub-Inspector (Finger Print), Sub-Inspector (Questioned Documents) and Platoon Commander carried equal pay scale was not brought to the notice of learned Single Judge. In view whereof the decision in Gokul Prasad Ajameriya (supra) and its affirmation in Writ Appeal No. 1109/2013 is of no assistance to the respondent No. 1.
(24) In view whereof it is held that an incumbent having been appointed and sent for training cannot later relegate THE HIGH COURT OF MADHYA PRADESH Writ Appeal No.256/2014 State of M.P. and others Vs. Pushpendra Singh Bhadoriya 21 and claim appointment to a post which has subsequently fallen vacant; and is made available to a wait listed candidate. The impugned order dt.24.6.2014 passed in Writ Petition No7674/2012 is set aside. Writ Petition filed by respondent No. 1 is dismissed.
(25) Appeal is allowed to the extent above. No costs.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
pawar/-
ASHISH PAWAR
2018.01.16
11:59:03 +05'30'