s l N G L E s w i m : 3 K ? g a g / 7 ; \ I N T H E H I G H C O U R T O F C H H A T T I S G A R H A T B I L A S P U R W R I T P E T I T I O N ( S ) N o . m 3 i O F 2 0 0 9 P E T I T I O N E R S : N i l e s h T i w a r i , S / o S h r i K . S . T i w a r i , a g e d a b o u t 2 6 . y e a r s , R / o K o t r a R o a d , R a j i V , N a g a r , R a i g a r h , D i s t r i c t R a i g a r h ( C G ) . O m K u m a r T i w a r i , S / o S h r i R a j B a h a d u r T i w a r i , a g e d a b o u t 2 3 y e a r s , R / o K a b i r C h o w k z R a j g a r h , D i s t r i c t R a i g a r h ( C G ) . V i j a y K u s h w a h a , S / o B i r j u K u s h w a h a , ' a g e d a b o u t 2 1 y e a r s ; R / o J u t e M i n S t a f f C o l o n y , R a i g a r h , D i s t r i c t R a i g a r h ( C G ) . S a n t o s h T i w a r i , S / o R a m a n a n d T i w a r i , a g e d a b o u t 2 1 y e a r s , R / o M i t h u m u d a , R a i g a r h , D i s t r i c t R a i g a r h ( C G ) . V i k a s h S i n g h T h a k u r , S / o G a j r a j S i n g h T h a k u r , a g e d a b o u t 2 6 y e a r s , R / o K o t r a R o a d , R a j i v N a g a r , R a i g a r h , D i s t r i c t R a i g a r h ( C G ) . V e r s u s R E S P O N D E N T S : S t a t e o f C h h a t t i s g a r h , T h r o . t h e S e c r e t a r y , D e p a r t m e n t o f H o m e , D . K . S . B u i l d i n g , M a n t r a l a y a , R a i p u r , ( C G ) . D i r e c t o r G e n e r a l o f P o l i c e , P o l i c e H e a d q u a r t e r s , S t a t e o f C h h a t t i s g a r h , R a i p u r ( C G ) . I n s p e c t o r G e n e r a l o f P o l i c e , B i l a s p u r R a n g e , B i l a s p u r ( C G ) . / ’ 4 . S u p e r i n t e n d e n t R a i g a r h ( C G ) . o f P o l i c e , \ W R I T P E T I T I O N U N D E R A R T I C L E 2 2 6 O F T H E ‘ J W \ C O N S T I T U T I O N O F I N D I A AF^ zv^ HIGH COURT OF CHHAITISGARH AT BILA8PUR | WRITPETITIQN(S1 No,3007_of2009 ! PETITIONERS : Dushyant Singh Sonwani & Qthers. VERSUS RESPONDENTS : State ofChhattisgarh & Others. ALONGWTTH W.P.(S) Nos. 3178 of2009,3613 of2009,3638 of2009,3991 of2009,4068 of 2009, 4131 of2009 and 4580 of2009 /^>J Post for pronouncement ofthe order on 6 day ofMay, 2010 Sd/- SatishK.Agnihom Judge ^Vl -?^-si HIGjHLCOURTQFCHHATnSGARHATBILASPUR WR1T PETmON CS) No. 3007 of2009 PETITIONER8 : Dushyant Singh Sonwani & Others. RE8PONDENTS VERSU8 : StateofChhattisgarh&Others. ALQNGWITH W.P.(8) Nos. 3178 of2009,3613 of2009,3638 of2009,3991 of2009, 4068 of 2009, 4131 of2009 and 4580 of2009 PE1ITI10N UNDER ARTICLE 226 OF THE CONSTnunON OF INDIA SBj^Hon'MeSlmSaiish^.A2mhotri,J, Present: Shri Jitendra Pali, Shri Vamn Shanna, Shri B.D.Gum, Shri Vamnendra Mishra, Advocates for the respective petitioners. Shri V.V.S.Moorthy, Deputy Advocate General wilfa Shri M.P.S.Bhatia, Deputy Gov^iiiiiicnt Advocate forthe forthe State. Sliri Pankaj Agrawal, Advocate for fhe Chhattisgarh Protessional Exaiiiiiiatiosi Board, Raipur. ORDER (Dellvered on ..^...day of May, 2010) 1. Writ Petition (S) Nos. 3007/2009, 3178/2009, 3613/2009, 3638/2009, 3991/2009, 4068/2009, 4131/2009 and 4580/2009 involve common facts aiid conmion question of law and, as such, they are being disposed of by this common order. 2. rrhe petitioners, pursuant to the advertisement dated 19.01.2008 {Annexure P/2 to W.P.(S) No. 3007/2009, 3178/2009, 3613/2009, 3638/2009, 3991/2009, 4068/2009, and 4580 of 2009} and 30.01.2008 {Annexure P/2 to W.P.(8) No. 4131/2009) issued by the Police Headquarters, Chhattisgarh, Raipur for recmitment aad appointment on the post of Consteble (General Duty) (for short GD.\ participated in the selection process and according to them, they were in the waiting list on the basis of 't I- 1 v •• 4. ^xfc publication of the result on 13.08.2008 (Annexure P/3 to W.P.(S) No. 3007/2009). According to leamed counsel for the petitionei^, the petitioners were informed by tiie office offhe concemed Superintendent ofPolice that ifthe candidates, including the petitioners, being in the waiting list, are desirous ofappointment on the post ofConstable (G.D.) fhey should approach to the office alongwith all the papers and application. In the meantime; by notice (Annexure P/7 to W.P.(8) No. 3007/2009), it was informed that the selection process for appointment on the post ofConstable (G.D.) has been initiated. Thus, the waiting list of the select list pursuant to tiie advertisement in 2008, came to an end. Shri Jitendra Pali, appearing wifh Shri Varun Sharma, Shri B.D.Gum^ Shri Varunendra Mishra, leamed counsel appearing for fhe petitioners would farther submit that once the petitioners have been mfonned by letter dated 2.6.2009 {Annexure P/6 to W.P.(8) No. 3007/2009 and 4068/2009, Annexure P/5 to W.P.(S) No. 4580/2009}, waiting list could not be declared as expired, as the applications were invited from the petitioners to express their intention to join the post ofConstable (G.D.) on the basis of their names being found in the select list. Shri Pali would rely on provisions of Chhattisgarh Police Executive Force, Constable (Recmitaieiit and Conditions ofService) Rules, 2007 (for short 'theRules, 2007') in support ofhis contention that the waiting list is alive for one year and the same cannot be cut short by a notification or executive order. The appointments firom the waiting list have been made in the Distrid: Bastar, Dhamtari, Dantewada (Dakshin Bastar), Kabirdham, Mahasamund, Rajnandgaon, Surajpur, Uttar Baatar Kanker, Bijapur and Narayanpur. c).v^ •^ ^' On the other hand, while supporting the action taken by the respondent authorities, Shri V.V.S.Moorthy, leamed Deputy Advocate General and Shri M.P.S.Bhatia, leamed Deputy Govemment Advocate for the State would submit that selection of fhe petitioners was made pursuant to the advertisement issued by fhe Police Headquarters, Chhattisgarh, Raipur. There is no dispute that the petitioners were not placed in tlie main select list though they were placed in the waiting list on the basis of their perfbrmance. Ruie 13 ofthe Rules, 2007 provides for life ofthe waiting list for a period of one year or till the new selection process of appointment is initiated, whichever is earlier. In the cases on hand. since the process of selection by publication of advertisement was initiated on 09.06.2009 {Annexure P/l to W.P.(8) No. 3007/2009, 4068/2009 and 4580/2009) 04.06.2009 {.^miexure P/l to W.P.(S) No. 3178/2009, 3613/2009 and 3991/2009), 10.06.2009 {Amiexure P/l to W.P.(S) No. 4131/2009), thus the waiting list came to an end under fhe provisions ofRule 13(2) ofthe Rules, 2007. Shri Moorthy would further submit that the contention of petitioners that some candidates have been appointed from fhe waiting list m various districts even after issuaiice of fresh advertisement, is not correct as in Bastar all the appointments from waiting lists were made within one yean as there is no selection process. In other districts namely Bastar, Dhamtari, Dantewada- Kabirdham, Mahasamund. Rajnandgaon, Surajpur, Kanker, Bijapur, and Narayanpur, before the fresh advertisements were issued in the month ofJune, 2009, some appomtments from the waiting list were made before publication offhe notice for fresh recmitment. 9' 7. Shri Pankaj Agrawal, leamed counsel appearing for fhe Chhattisgarh Professional Examination Board (for short 'VYAPAM'), in W.P.(S) No. 3007/2009, would submit that no examination has been conducted by the VYAPAM. The entire selection process was done bythe State. 8. Heard leamed counsel appearing for fhe parties, pemsed the pleadings and documents appended thereto. 9. Indisputably, the initial advertisement was issued by the Police Headquarters, Raipur on 19.01.2008 {Annexure P/2 to W.P.(S) No. 3007/2009, 3178/2009, 3613/2009, 3638/2009, 3991/2009, 4068/2009, and 4580 of 2009} and 30.01.2008 {Annexure P/2 to W.P.(8) No. 4131/2009} for recmitment and appointment on the post of Constable (G.D.). Tlie selection process was initiated at district level for recmitment in the concemed district. Thereafter. select list and waiting lists were prepared and published district-wise. The select list and waiting list for Raipur District was published on 13.08.2008 {Annexure P/3 W.P (S) No. 3007/2009, 4068/2009 and 4580/2009}. According to the petitioner, the select list and waiting list fbr the Bilaspur District was published in the month of August, 2008 {Annexure P/3 to W.P.(8) No. 3178/2009 and 3991/2009). For the Jashpur District, the select list and waiting list was published on 26.7.2008 {Annexure P/3 to W.P.(8) No. 3613/2009 and 3638/2009}. According to Shri Gum, leamed counsel for the petitioners {in W.P.(S) No. 4131/2009} the petitioners, who belong to Raigarh District, are in waiting list, however, no such list was published by the respondent authorities. 10. The petitioners were in the waiting list of the respective Districts. In W.P.(8) No. 3007/2009, the petitioners No. 1, 2, 3, ^-s^. 'fc^-., !/ 11. 12. ^ ^ 4 were at serial No. 7, 12,10 and 9 respectively, in the scheduled caste category, petitioner No. 5, 6, 7, 8, 9 and 10 were at serial No. 24, 21, 15, 8, 22 and 6 respectively, m the scheduled tribe category, petitioner No.11,12, 13, 14, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 were at serial No. 32, 53, 5, 16, 11, 17, 35, 42, 14, 38, 15, 7, 28, 34, 30, 50 and 10 respectively in unreserved category, petitioner No. 14, 15, 16, 17, 18, 19 and 23 were at serial No. 18, 16, 8, 7, 10, 14 and 17, respectively in other backward class category. In W.P.(8) No. 3178/2009, the petitioner No. 1 was at serial No. 7 in the scheduled tribe category, petitioner No. 2 was at serial No. 5 and petitioner No. 3 was at serial No. 6 in the scheduled caste category. In W.P.(S) No. 3613/2009., the petitioner was at serial No. 5 m the ofher backward class category (Aimexure R/l). In W.P.(8) No. 3638/2009, the petitioner was at serial No. 5 in the unreserved category (Annexure R/l). In W.P.(8) No. 3991/2009, the petitioner No. 1 is at serial No. 13 in the unreserved category, petitioner No. 2 was at serial No. 3 in the other backward class category and petitioner No. 3 is at serial No. 6 in fhe unreserved category (Armexure P/4). In W.P.(S) No.4068/2009, the petitioner No. 1, 3, 4, 5, 6, 8, 9,10, 11, 15, 17, 19, 21 and 22 were in unreserved category at serial No. 49, 24, 9, 22, 29, 46, 19, 51, 55, 45, 23, 26, 48 and 54 respectively. Petitioner No. 2, 7, 12, 16, 18 were in scheduled tribe category at serial No. 7, 13, 20, 11, 49 respectively. Petitioner No. 20 was in scheduled caste category at serial No. 8. Petitioner No. 13 and 14 were m other backward class category at serial No. 12 and 5 respectively. fe 1 ^^^•- K r:; ^i^ "f I ^^•^' ^"' •^ ^"_ <?-"L ^- 13. ^^ In W.P.(S) No. 4131/2009, Shri Guru, leamed counsel for the petitioners would submit that the petitioners, who belong to Raigarh District, were in waiting listhowever, no placement in the waiting list has been given as no such list was published by the respondent authorities. 14. In W.P.(8) No. 4580/2009, the petitioner was at serial No. 59 in the waiting list ofutireserved category (Annexure P/4). 15. No appomtments from the waiting lists have been made from the subject districts in the petitions on hand. 16. Thereafter, the petitioners were infbrmed by tihe office of the concemed Superintendent of Police, Raipur that if the candidates, including the petitioners. being in the waiting list are desirous ofappointment onthe post of Constable (G.D.) they should approach to tfae office alongwith all the papers and application. In the meantime, by notice (Annexure P/7 to W.P.(8) No. 3007 of 2009), it was stated that the selection process for appomtment on the post ofConstable (G.D.) has been initiated. The fresh advertisements were issued by the respondent authorities for various districts viz. Dislrict Raipur by the office ofthe Superintendent of Police, Raipur on 09.06.2009 {Annexure P/l to W.P.(S) No. 3007/2009}, District Bilaspur, Raigarh, Korba, Janjgir-Champa by the ofiKce of Inspector General, Bilaspur Range on 04.06.2009 (Annexure P/l to W.P.(S) No. 3178/2009} aiid District Surguja, Jashpur, Balrampur aiid SuraJpur by the office of Inspector General, Surguja Range on 04.06.2009 {Annexure P/l to W.P.(8) No. 3613/2009). 17. Rule 13(2) oftiie Rules, 2007 reads as under: "13. List ofcandidates, as recommended bv Committee.- (2) Subject to the provisions of tlicse mles, and of the Chhattisgarh Civil Services (General Coxiditions of .^^i^. ^:..- ^-^-" ^v 18. 19. <z; Service) Rules, 1961, candidates will be considered for appointment to the available vacancies in the order in which their names appear in the list. A waiting list of 25% oftotal posts shall also be prepared apart from the real vacancies by following the Rules of Reservation, which shall be cffective from Ifae date ofpublication till the commencement of next selection procedure or for one year or whichever is em'lier. Dumig tMs pd-iod, the recmitment permission on the sanction of new posts or the posts fallen vacant due to promotion, retirement, death or cadre change, temiination or due to other reasons, will be fulfilled from this waiting list." The provisions ofRule 13(2) offhe Rules, 2007 is clear and unambiguous that the lite ofthe waiting list is for one year or till the selection process is initiated, whichever is earlier. In fhe case on hand, the selection process in the subject districts was mitiated from 2" June to 10 June, 2010 by issuing a publication inviting applications for recmitaient and selection on the post of Constable (G.D.). Thus, the contention ofthe petitioners that before expiry ofone year, the waiting list has been lapsed, deserves to be rejected. It is also an admitted position that in fhe concemed subject districts, no appomtment from the vvaiting list has been made. Some ofthe petitioners daim fheir right on the basis of letters issued to tiiem by the office of the Superintendent ofPolice, Raipur whereby they were asked to express their intention and to appear before the authorities. Subsequently, they could not appear befbre the authorities and no order could be passed on the basis of fhe said letters. Thus, I have no hesitation in holding fhat no mdefeasible right has been accmed in favour ofthe petitioners onthe basis ofsaid letter. Admittedly, certain appointments were made in other districts namely Dhamtari, Dantewada (Dakshin Bastar), Kabirdhajni, Mahasamund, Rajnandgaon, Surajpur, Uttar Bastar Kanker, Bijapur and Narayaiipur, except Bastar. Shri Moorthy has supplied information, which is taken on record that all the appointments were made much prior to mitiation of 8 ^^ selection process for recmitment on Ifae post of Constable (G.D.). In the case ofBastar, wherein some appointments were made in July, 2009, no selection process has been initiated or applications were invited for recruitment, thus, the waiting list continued for one year i.e. from August, 2008 to August, 2009. 20. Be that as it may, it is well settled principle oflaw fhat a caadidate, being in the select panel/waitmg list has no vested right to get appointment to the post in spite of existmg vacancies. (See Ludhiana Central Co-operative BankLtd. v.AmrikSinghandOthers). 21. In Union of India and Others v. Kali Dass Batish and Anothe^, the Supreme Court observed that "mere inclusion ofa candidate's name in the selection/waitmg list gave him no right, and ifthere was no right, fhere could be no occasion to maintam a writ petition for enforcement of a non- existing right." 22. The Supreme Court in Rakhi Ray and Others v. High Caurt ofDelhi and Other/, observed as under : "24. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanclmeiit at fhe best is a condition of eligibility for the pmpose of appomtment and by iteelf does not amount to selection or create a vested right to be appointed. The vacaxicies have to be filled up as per the statutory mles and in confomiity with the constitutional mandate. In the instant case, once 13 notitled vacancies were filled up, the selection process came to an end, tihius there could be no scope ofany further appointment." 23. Leamed counsel appearing for the petitionei's, in support of their contention, would rely on the decision rendered by the Supreme Court in 1 (2003)103cc 136 2 (2006) 1 SCC 779 3 (2010) 2 SCC 637 //^^ "% ^ Director, SCTI for Medical Science & Technohgy & another v. M.Piishkaran , wherein it was observed as under: 24. "14. In Asha Kaul v. State ofJ&K this Court held: (SCCpp. 580-81, para 8) "5. It is true that mere inclusion in the select list does not confer upon the caadidates included therein an indefeasible right to appointment (State of Haryana v. Subash Chander Marwaha^ Mani Subrat Jain v. State of Haryana', State ofKerala v. A. Lakshmikutt)?) but that is only oiie aspect of the matter. Tlie other aspect is the obligation of the Oovermnent to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category,—mpyrsuaiice of which the Coimiiissioii issues a notification, holds a written test, conducts interviews, prq5ares a select list and then commumcates to the Govemment—theGovemment cannot quietly and withoui good and valid reasons millify the whole exercise and tell the candidates when they complam tliat they have no legal right to appointment. We do not think that any Govemment can adopt such a stand with any justification today." (See aisoA.P.Aggarwcslv. Govt. ofNCT ofDelhi.) 18. The application of law would, therefore, depend upon fbe fact situation obtaining in each case. The judgment ofthe Migh Coml m view of Uie aforementioned authoritative pronouncements cannot be said to be perverse. The respondent was to bc offered with the appointment at a point of time when no policy decision was teken. There was, thus, no reason not to offer any appomtoient m his favour. Why the select panel was ignored has not been explained. Even the purported policy decision was not m their eontemplation. We, therefore, do not see any reason to mterfere with the impu^ied judgment9' Further, in Bharat Sanchar Nigam Ltd. & Others v. Abhishek Shukla & anothe^, the Supreme Court observed as under: 17. We, therefore, do not find any error in the impugned Judgments. We are, however, not oblivious of the fact that ordinarily the life of such a panel is one year as has been observed by this Court m Girdhar Kumar Dadhich v. State ofRajasthan. However, the select list was approved by the appellant only in Augusfc 2003 and the respondents having made representations within one year thereifrom m our opinioii, the said requirement also stands satisfied m the instant case. Moreover^ such a question had not ever beeii raised before the courts below. 4 (2008) 1 SCC 448 5 (2009) 5 SCC 368 ^-•, -"-^ ^. 10 ^ Had such a question been raised, the respondeists could have dealt with the same. (See Amlan Jyoti Borooah v. State ofAssam.) 25. It is trite law that fhe life of a panel/select list would be for one year. The Supreme Court, in State ofU.P & Others v. Harishchandra & Others6, observed as under: ^9. Coming to the merits of the matter, in view of the Statuto^ Rules contained in Rule 26 ofthe Recmitment Rules the conclusion is irresistible that a select list prepared under fhe Recmitment Rules has its life only for one year from the date ofthe preparation ofthe list and it expires thereafter. Rule 26 is extracted hereinbelow m extenso: "26. Appointment by appointmg authority.- The select list referred to in sub-mles (6) and (7) of Rule 23 shall be forwarded by fhe Selection Committee to the appointing aufhority mentioimig the aggi'egate marks obtained at the selection by each candidate. The name of general and reserve candidates shall be arranged by Ihe appointing authority in a coiiimon list according to the merit ofthe candidates and the appomtinent shall be offered m the order iii which the names are aiTaaged in the list shall hold good for a period ofone year from the date ofselection." 10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is en-oueous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recmitment of the writ petitioners. Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought aiid the said right was subsisting on the date ofthe petition. The duty that