(1) JUD-WP-295.2009+1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 295 OF 2009 Vinod S/o Vasant Sali, Age: 33 years, Occu.: Government Service, presently working as Police Constable at Kannad Police Station, R/o : Police Colony, Kannad, Taluka: Kannad, District : Aurangabad PETITIONER (Orig. Applicant) VERSUS 1. The State of Maharashtra, through the Secretary, Home Department, Mantralaya, M.S. Mumbai 2. The Director General of Police, Maharashtra State, Mumbai, Mumbai - 400 032. 3. The Additional Director General of Police, C.I.D. (M.S.), Pune 4. The Special Inspector General of Police, S.C.R.B., C.I.D. (M.S.), Pune (Notices to respondents to be served through Government Pleader, High Court, Bench at Aurangabad) RESPONDENTS (Orig. Non-Applicants) WITH WRIT PETITION NO. 402 OF 2009 Avinash S/o Kamlakar Pargaonkar, Age : 37 years, Occu.: Governmment Service, Presently working as Junior Clerk in the Office of the Superintendent of Police, C.I.D., M.S., Aurangabad R/o: House No.1291, (2) JUD-WP-295.2009+1 Jaihind Nagar, Near Dhoot Hospital, Aurangabad PETITIONER VERSUS 1. The State of Maharashtra, through the Secretary, Home Department, Mantralaya, M.S. Mumbai 2. The Director General of Police, Maharashtra State, Mumbai, Mumbai - 400 032. 3. The Additional Director General of Police, C.I.D. (M.S.), Pune 4. The Special Inspector General of Police, S.C.R.B., C.I.D. (M.S.), Pune (Notices to respondents to be served through Government Pleader, High Court, Bench at Aurangabad) RESPONDENTS (Orig. Non-Applicants) ..... Mr. Rajendra Deshmukh, Advocate for the Petitioners. Mr. K.G. Patil, A.G.P. for the Respondent-State. ..... CORAM : SMT. NISHITA MHATRE & M.T. JOSHI, JJ. DATE OF RESERVING THE JUDGMENT : 16TH JUNE, 2011 DATE OF PRONOUNCING THE JUDGMENT : 23RD JUNE, 2011 (JUDGMENT : PER -M.T. JOSHI, J.):- 1. Rule. Rule made returnable forthwith, by consent. (3) JUD-WP-295.2009+1 2. In both the present Writ Petitions, the petitioners are praying for directions to the respondents to appoint them to the post of Searcher/Police Sub-Inspector (Finger Print) as their names were included in the wait list dated 16.5.2006. 3. The petitioner in Writ Petition no. 295 of 2009 was at the relevant time working as a Police Constable, while the petitioner in Writ Petition no. 402 of 2009 was working as a Junior Clerk at the Police Training Centre at Aurangabad. A notification for departmental promotion by selection to the post of Searcher/Police Sub-Inspector (Finger Print) at Finger Print Bureau was circulated and both the petitioners applied for the same. 4. The concerned Special Inspector General of Police after adopting regular procedure had on 16.5.2006 published a list of 29 selected candidates and additional wait list of 16 successful candidates. The selected 29 candidates were appointed while the wait listed candidates were not appointed. The Section Officer of Home Department of Maharashtra had (4) JUD-WP-295.2009+1 informed to the respondent no.2 Director General of Police that out of 44 vacant posts, sanction was already given only to fill up 33 posts and, unless review is taken, further sanction of filling the posts cannot be granted. Ultimately, on 28.9.2007 the High Power Secretarial Committee has given approval to the revival of 11 posts and on 19.10.2007, a Government resolution to that effect was passed. The candidates from the wait list dated 16.5.2006, however, were not appointed as the respondent no.4 Special Inspector General of Police S.C.R.B., C.I.D., (M.S.), Pune had informed the Additional Chief Secretary, Home Department vide letter dated 14.12.2007 that since one year and six months have passed from the date of publication of waiting list, fresh recruitment process will have to be started. Thereupon representations were submitted by the petitioners for appointing them as they were included in the wait list. However, on 14.1.2008, fresh departmental communication was issued for filling up those 11 posts by fresh recruitment process. 5. In the circumstances, both the present (5) JUD-WP-295.2009+1 petitioners had filed Writ Petitions in this Court on 30.1.2008. Interim relief in the nature of directing the respondents not to fill in 11 vacant posts was granted. Thereafter, the Petitions were transferred to the Maharashtra Administrative Tribunal, Mumbai Bench at Aurangabad. The Maharashtra Administrative Tribunal further directed the parties to maintain status-quo in the matter. 6. Finally, the Maharashtra Administrative Tribunal vide order dated 26.8.2008 held that the selection process was only for 27 posts and not for the additional 11 posts, which were revived subsequently. Therefore, in the view of the learned Chairman of the Maharashtra Administrative Tribunal the petitioners could not have staked claim for appointment to the posts which were not in existence when they were interviewed. It was also further held that during the pendency of the proceedings, the wait list had lapsed due to lapse of two years and, therefore, on these two counts the transfer applications came to be dismissed. Therefore, both the petitioners have filed the present respective Writ (6) JUD-WP-295.2009+1 Petitions. 7. The learned counsel for the petitioners brought to the notice of the Court the contrary stand taken by the respondents at two different stages. The respondent nos. 3 and 4 have filed affidavit-in-reply before the Maharashtra Administrative Tribunal, wherein it was submitted that in view of the direction to maintain status-quo, the administration was unable to fill up 11 posts from the waiting list prepared on 16.5.2006. It was therefore prayed in the said affidavit that the status-quo be vacated and on receipt of suitable order, recruitment process of filling up the posts would commence. Before us, however, an affidavit is filed on behalf of the respondents 3 and 4 i.e. the Director of Finger Prints Bureau, C.I.D., Aurangabad, in which he has inter-alia averred that since additional 11 posts were never advertised, the petitioners cannot be considered for the appointment on these posts. It was further submitted that since the waiting list from the earlier selection process has lapsed, it is not possible to accommodate the petitioners. (7) JUD-WP-295.2009+1 8. The reasoning of the Tribunal as well as the submissions of the respondents cannot be accepted. It is an admitted fact that the selection to the post were to be made not by any public advertisement but only through inter-departmental communication. After the selection process was completed, 11 posts which were lapsed were revived. The petitioners were already included in the waiting list. The respondent nos. 3 and 4 had taken a stand before the Maharashtra Administrative Tribunal that only because of the direction to maintain the status-quo, candidates from the wait list dated 16.5.2006 could not be appointed. However, now contrary contentions are being raised. The posts could not be filled in only because of the initial direction of this Court in the earlier Writ Petition not to fill up the vacancy and thereafter because of the direction from the Maharashtra Administrative Tribunal to maintain status-quo. The fate of the wait list dated 16.5.2006 ultimately came to be decided after two years. In this view of the matter, it cannot be said that the wait list dated 16.5.2006 is lapsed. The reasoning of the learned (8) JUD-WP-295.2009+1 Chairman of the Maharashtra Administrative Tribunal therefore cannot be upheld. 9. In view of the above circumstances, the respondents are directed to appoint the candidates in the wait list dated 16.5.2006 as against the original 33 posts (if now available), and 11 posts revived subsequently, as per the due procedure of law, including the reservation by roster etc. Rule is accordingly made absolute in the above terms. Sd/- Sd/- [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] arp