SCA/7922/2008 1/69 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.7922 OF 2008 To SPECIAL CIVIL APPLICATION NO.7924 OF 2008 With SPECIAL CIVIL APPLICATION NO.7975 OF 2008 With SPECIAL CIVIL APPLICATION NO.7976 OF 2008 With SPECIAL CIVIL APPLICATION NO.8115 OF 2008 With SPECIAL CIVIL APPLICATION NO.8595 OF 2008 With SPECIAL CIVIL APPLICATION NO. 8042 OF 2008 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the Civil Judge ? ====================================== BRAHMBHATT GIRISHKUMAR JETHALAL - Petitioner(s) Versus STATE OF GUJARAT & ORS. - Respondent(s) ====================================== Appearance : Special Civil Application No.7922 to 7924 of 2008 Mr. K. B. Pujara for Petitioner(s). Mr. Suneet S. Shah, Government Pleader, with Mr. Shivang Shukla, AGP for Respondent(s). SCA/7922/2008 2/69 JUDGMENT Special Civil Application No.7975, 7976, 8115 & 8595 of 2008 Mr. Virat G. Popat for Petitioner(s). Mr. Suneet S. Shah, Government Pleader, with Mr. Shivang Shukla, AGP for Respondent(s). Special Civil Application No.8042 of 2008 Mr. Nikhil S. Kariel for Petitioner(s). Mr. Suneet S. Shah, Government Pleader, with Mr. Shivang Shukla, AGP for Respondent(s). ====================================== CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 30/09/2008 COMMON ORAL JUDGMENT Rule. Mr. Suneet S. Shah, learned Government Pleader, appears and waives service of Rule on behalf of the respondent-State. Having regard to the facts of the case, the petitions are taken up for hearing today with the consent of both the sides. 2. The present group of petitions are filed by the petitioners challenging the impugned order dated 20th May, 2008 passed by the Gujarat Subordinate Services Selection Board and as a consequence, the impugned order dated 20th May, 2008 passed by the Director General of Police, whereby the petitioners are reverted from the post of Unarmed Police Sub Inspectors to the lower post of Head Constables. SCA/7922/2008 3/69 JUDGMENT Special Civil Application No.7922 of 2008 to 7924 of 2008 3. The facts of the case, briefly summarised, are that the petitioners were appointed as Unarmed Police Constables and were subsequently promoted as Head Constables and were serving with the Crime Branch, Ahmedabad City. The State Government made the Police Sub Inspector (Unarmed Branch, Class III) Recruitment Rules, 2003 by Government Notification dated 22nd August, 2003, as amended by the Police Sub Inspector (Unarmed Branch, Class III) Recruitment (First Amendment) Rules, 2004 by Government Notification dated 30th January, 2004, as further amended by the Police Sub Inspector (Unarmed Branch, Class III) Recruitment (Second Amendment) Rules, 2004 by Government Notification dated 18th June, 2004. The State Government has also made the Examination Rules, namely, The Gujarat Police Sub Inspector (Unarmed Branch) Special Competitive Examination Rules, 2004. As per the recruitment rules, as reflected in the communication of the Director General of Police dated 19th April, 2004 to the Gujarat Subordinate Services Selection Board (“the Board” for short) regarding requisition to fill up 189 posts of Police Sub Inspector from the cadre of Unarmed Head Constables and Assistant Sub Inspectors on the basis of the competitive examination. 3.1 As stated above, the Police Sub-Inspector (Unarmed Branch, SCA/7922/2008 4/69 JUDGMENT Class-III) Recruitment Rules, 2003 provides for the mode of recruitment as stated in Rule 2. Clause (a) of Rule 2 provides for direct selection on the basis of the competitive examination held by the Police Sub-Inspector Recruitment Board. Clause (b) of Rule 2 provides for special selection from amongst the persons working as Head Constable (Unarmed Branch, Class III) or Assistant Sub-Inspector (Unarmed Branch, Class III), who have completed five years' continuous service in Gujarat State Police and have passed special competitive examination held by the Selection Board constituted under Rule 165 of the Gujarat Police Manual, 1975. Clause (c) of Rule 2 provides for promotion of a person of proved merit and efficiency from amongst the persons who have worked for not less than continuous five years in the cadre of Assistant Sub-Inspector (Unarmed Branch, Class-III) in Gujarat State Police Service. Therefore, pursuant to this exercise for recruitment, the petitioners, who were working as Head Constables and Assistant Sub Inspector (Unarmed Branch, Class III), were eligible to participate in the special selection under Clause (b) of Rule 2 of the Police Sub Inspector (Unarmed Branch, Class-III) Recruitment Rules, 2003. It is averred that the Gujarat Subordinate Services Selection Board (“the Board” for short) undertook the selection process for 189 posts of Police Sub Inspector as per the letter dated 19th July, 2004 at Annexure-C and pursuant thereto, SCA/7922/2008 5/69 JUDGMENT applications were invited as per Annexure-D. On that basis, the petitioners appeared in the written examinations, which were held on 19th August, 2006 and 20th August, 2006, and the petitioners successfully passed the said examination. Thereafter, the petitioners also passed the physical test held in January-2007 and oral interview held in March- 2007. It is averred that though there were 189 posts and exercise for recruitment of 189 posts of Police Sub Inspectors was undertaken, respondent No.3 published the selection list of 165 candidates and waiting list of 23 candidates as per Government Notification dated 27th April, 2007 at Annexure-E. The petitioners were shown at Serial Nos.1, 3 and 4 in the waiting list. It is pursuant to this exercise and the petitioners having passed in the examination, the order at Annexure-F was passed whereby 162 candidates from the selection list were promoted/appointed as Police Sub Inspector including the present petitioners. The petitioners were also directed to undergo the training course of Unarmed Police Sub Inspector (Mode-2) at Gujarat Police Academy, Karai, Gandhinagar from 4th June, 2007 to 7th January, 2008 and the petitioners successfully completed the said course and have been given the postings and are serving as Police Sub Inspector. It is averred that to the shock and surprise of the petitioners, the petitioners learnt on 21st May, 2008 that the Board has issued the impugned communication dated 20th May, 2008 and on the basis thereof, respondent No.2 has SCA/7922/2008 6/69 JUDGMENT issued further order dated 20th May, 2008 whereby the petitioners are sought to be reverted by cancelling their appointments to the lower post of Head Constable without affording an opportunity of hearing and/or without any justification and in violation of Articles 14, 16, 19 and 21 of the Constitution of India. Therefore, the present petitions have been filed contending that the impugned order is not only illegal, arbitrary, unreasonable, discriminatory, high handed, capricious, bad in law, null and void, without jurisdiction, perverse, but is also violative of rules of natural justice for which reference has been made to the judicial pronouncements of the Honourable Apex Court including the judgement in the case of State of Orissa vs. Dr. (Ms) Binapani Devi & Ors. reported in AIR 1967 SC 1269. 3.2 Draft amendment was submitted, which was granted, by which it has been contended that it is not disclosed in the impugned order for what reasons and how respondent No.3 has cancelled the waiting list published in the Government of Gujarat Gazette Notification dated 27th April, 2007. It has been also contended that in the process of recruitment, initially there were 189 posts and therefore, the selection list was required to be prepared for 189 posts, whereas, in fact, the selection list of 165 candidates and waiting list of 23 candidates are prepared, totaling 188 candidates. As the names of the petitioners SCA/7922/2008 7/69 JUDGMENT appeared in the waiting list at Serial Nos.1, 3 and 4 and as some persons had not joined, the petitioners were given the postings after they successfully completed the training, as stated above, and thereafter, they were posted as Police Sub Inspectors. It is also contended that the waiting list of the eligible and qualified candidates is required to be placed below the list of selected candidates and if the selected candidates do not join for one reason or the other, and vacancies arise due to such reason or death or resignation, etc., then, the select list is first operated and the appointments are given. In the facts of the present case, four candidates, including the present petitioners, were given appointments from the waiting list as only 158 candidates from the select list accepted the appointments. Therefore, the waiting list was operated and the petitioners were given the appointments. It has also been contended that the recruitment process has been undertaken for 189 posts and there is no justification in cancellation of the appointments and reverting the petitioners once they have passed the examinations, undergone the training and after completion of the training, they are given postings as Police Sub Inspectors. Special Civil Application Nos.7975/2008, 7976/2008, 8115/2008 & 8595/2008 4. The petitioners, who have been working as Head Constables in different parts of State of Gujarat, have challenged the impugned order by which their selection to the post of Police Sub Inspectors SCA/7922/2008 8/69 JUDGMENT (Unarmed Branch, Class-III) is cancelled without affording an opportunity of hearing. As stated above, pursuant to the applications invited for filling up 189 posts of Police Sub Inspector, the petitioners applied for the same and appeared in the competitive examination and successfully cleared the said examination. On successful completion of the examination, the petitioners have also appeared and cleared the physical test and oral interview. Thereafter, a select list of 165 candidates and waiting list of 23 candidates was prepared. Out of 165 candidates, appointments were given to 162 candidates on 28th May, 2007 and the petitioners are in the waiting list and four candidates from the waiting list were also given appointments. The petitioners have challenged the impugned notification cancelling the waiting list and also de-selection of the present petitioners without affording an opportunity of hearing on various grounds set out in detail in the petitions inter alia that there was no justification in including the names of the petitioners in the waiting list despite the fact that there were vacancies as per the requisition. It has been contended that total number of posts were 189, however, the select list of 165 candidates was prepared and in fact, appointments have been offered to only 162 candidates, out of which some were dropped out or had not joined and the waiting list was made operative and accordingly, four candidates from the waiting list have also been given appointments (Petitioners of Special Civil Application SCA/7922/2008 9/69 JUDGMENT Nos.7922 to 7924 and 8042 of 2008). It has been contended that the respondents ought not to have passed the impugned order which would adversely affect the petitioners and their right for the appointment to the post of Police Sub-Inspector. It has been also contended that the impugned action of the respondents is arbitrary and in violation of the principles of natural justice. When the petitioners have passed the examination, the names of the petitioners ought to have been included in the select list instead of the waiting list. Therefore, the petitioners are required to be treated as selected candidates for the post of Police Sub Inspectors and the order cancelling the waiting list is not justified. It has also been contended that if the waiting list was prepared by the respondents in violation of the rules, then, in that case, the entire recruitment process would be illegal and contrary to the rules and therefore, the entire selection and appointments made pursuant to such recruitment process has to be struck down rather than cancelling only the waiting list. Special Civil Application No.8042 of 2008 5. The petitioner, who has been working as Unarmed Police Sub Inspector, has challenged the order of respondent Nos.2 and 4 on the ground that it is arbitrary and illegal. It has also been contended that the petitioner has participated in the recruitment process of 189 posts of Police Sub Inspector, has appeared in the competitive examination and SCA/7922/2008 10/69 JUDGMENT has been selected and placed at Serial No.2 in the waiting list. It has been contended that though he has been placed at Serial No.2 in the waiting list and some of the candidates in the select list could not be appointed, the petitioner and other three candidates in the waiting list have been appointed to the post of Unarmed Police Sub Inspectors. It has also been contended that he has passed the competitive examination, also undergone the training and has completed the training in December-2007 and has been given posting as Police Sub Inspector. It has been contended that having passed the examination, completed the training and having worked for five months as Police Sub Inspector, the impugned order passed by respondent No.4 cancelling the waiting list could not have been passed and therefore, the consequential order passed by respondent No.2 would also be bad and illegal. The said orders are challenged on the same grounds as narrated in Special Civil Application Nos.7922 to 7924 of 2008, emphasising that the petitioner having appeared in the competitive examination, cleared the training and also given the posting, the said appointment could not have been treated as cancelled. It has been emphasised that the recruitment was for 189 posts of Police Sub Inspectors, however, the select list was prepared for only 165 candidates and as 165 posts were not filled up for various reasons, the waiting list was operated. It has been also contended that if the waiting list would not have operated, the posts would have remained SCA/7922/2008 11/69 JUDGMENT vacant. It has also been contended that this was intra departmental selection process, where after selection of the candidates, the select list has been prepared and as some candidates had not joined or appointments were not given to them, the waiting list was made operative. It has been contended that the respondents had properly verified the credentials of the candidates and even though few candidates, who have not been given appointments, have been selected, their names have not figured in the select list and therefore, the petitioner, who is shown in the waiting list, would have been, in fact, in the select list. Therefore, it has been contended that the impugned action of cancelling the waiting list/appointment of the petitioner is arbitrary and illegal. It has also been contended that as per the order dated 28th May, 2007, the petitioner and other candidates had been appointed and though the word used is promotion, in fact, it is the case of appointment. It has been contended that the recruitment rules clearly provide and use the word appointment by selection process. Therefore, it has been contended that the impugned action is arbitrary and illegal. 6. Affidavit-in-reply has been filed by respondent No.2, Additional Director General of Police (Administration) and affidavit-in- reply has also been filed on behalf of respondent No.3, i.e. Secretary, Gujarat Subordinate Services Selection Board in Special Civil Application SCA/7922/2008 12/69 JUDGMENT No.7922 of 2008. In the affidavit in reply filed by respondent No.2, it has been contended that it is not in dispute that the special competitive examinations were held by the Gujarat Subordinate Services Selection Board for filling up the posts, as stated above. It has been narrated in detail as to how the process started on the basis of the requisition sent. Therefore, as per the notification dated 27th April, 2007, the final selection list of 165 candidates and waiting list of 23 candidates were published by respondent No.3. It has been stated that as per the requisition sent to the Board by the Director General of Police, 73 posts were to be filled up from Scheduled Tribe candidates, however, only 49 candidates have been declared successful in the examination. Hence, total selection list of 165 candidates, i.e. 116 general candidates and 49 S.T. Candidates, was prepared. It has been also stated that it is important to note that as stated in the affidavit filed on behalf of respondent No.3 as per the Gujarat Police Sub Inspector (Unarmed Branch) Special Competitive Examination Rules, 2004 dated 14th September, 2004, respondent No.3 was not supposed to prepare the waiting list. However, respondent No.3 has inadvertently prepared the waiting list. It has been stated that on scrutinizing the notification dated 27th April, 2007 published by the Board, respondent No.2 found that 3 candidates out of 116 candidates belonging to General Category were such, against whom the departmental inquiry was pending, i.e. merit list nos.12, 25 and 81, SCA/7922/2008 13/69 JUDGMENT and therefore, they could not be offered appointments. Similarly, the candidate at Serial No.80 was over aged. Thus, in all, four candidates were not found to be eligible for the appointment. Therefore, the petitioner in Special Civil Application No.7922 of 2008, who was at Serial No.1, petitioner of Special Civil Application No.7923 of 2008 who was at Serial No.3 and petitioner of Special Civil Application No.7924 of 2008 who was at Serial No.4 of the waiting list were given the appointments. It has been therefore contended that respondent No.2 had initially issued an order dated 28th May, 2007 for appointment of 162 candidates, i.e. 112 from general category and 46 from S.T. category. Further, it has been stated that respondent No.2 has issued a letter dated 11th June, 2007, seeking approval for appointment of remaining 19 out of 23 candidates and respondent No.1 has informed on 2nd July, 2007 that the proposal cannot be accepted. Thereafter, on 14th September, 2007, respondent No.2 again requested to give permission for appointment of 19 remaining candidates in the waiting list and the General Administration Department had also been requested to consider the question for grant of permission. However, while examining the proposal of the Home Department, the General Administration Department found that the waiting list prepared by the Board is ultra vires because there is no provision or standing instructions for preparing the waiting list of the candidates in the case of selection through special SCA/7922/2008 14/69 JUDGMENT competitive examination popularly known as semi direct recruitment. Therefore, as there is no provision for preparation of the waiting list in the Gujarat Police Sub Inspector (Unarmed Branch) Special Competitive Examination Rules, 2004, the waiting list was required to be treated as void ab initio. Therefore, ad hoc appointments given by respondent No.2 to four candidates from the waiting list were required to be cancelled and accordingly, as per the letter dated 19th May, 2008 from the General Administration Department, the decision has been taken and on that basis, the appointment came to be cancelled and respondent No.2 passed the impugned order dated 20th May, 2008. 7. Mr. K. B. Pujara, learned Counsel for the petitioners in Special Civil Application No.7922 of 208, submitted that the Court may consider the challenge to the decision in the petitions in light of the Police Sub Inspector (Unarmed Branch, Class III) Recruitment Rules, 2003 and as amended from time to time, and also Special Competitive Examination Rules, 2004. For that purpose, he referred to Annexure-A at page 15 and emphasised the different modes by contending that it provides for direct selection on the basis of the competitive examination, meaning thereby, it would be open for all and another mode is promotion. However, referring to Clause (b) of Rule 2 of the Recruitment Rules, he emphasised that it provides for special selection SCA/7922/2008 15/69 JUDGMENT from amongst departmental candidates, who are working as head constables (Unarmed Branch, Class III) or Assistant Sub Inspector (Unarmed Branch, Class III) having completed five years' of continuous service in the Gujarat State Police subject to passing the special competitive examination held by the Selection Board constituted under Rule 165 of the Gujarat Police Manual, 1975. He submitted that the Recruitment Rules itself provide that the departmental candidates can be appointed by undergoing the recruitment process as provided under the Rules. Mr. Pujara again referred to various rules, including Rule 6, which provides that the candidate appointed by direct selection shall be on probation for a period of one year after successful completion of his training. He referred to Rule 7 which provides that the candidate appointed by special selection holding the competitive examination shall have to pass prescribed post training examination. It was submitted that as per these rules, even after participating in the competitive examination, i.e. written test and oral interview, and having passed those examinations, the candidate is further required to undergo the post training examination on completion of the training. He has also referred to further amendment in the rule at page 20. He pointedly referred to the Amended Gujarat Police Sub Inspector (Unarmed Branch, Class III), Special Competitive Examination Rules, 2004 and submitted that it provides for how the examinations shall be conducted and how the SCA/7922/2008 16/69 JUDGMENT results are required to be declared by the Board. Mr. Pujara referred to the communication dated 21st/22nd June, 2004, which is written by the Home Department to the Director General of Police with regard to filling up of the vacancies. It was submitted that this is a requisition for 189 posts of Police Sub Inspector and it has been suggested that for filling up such posts, necessary requisition may be sent to the Gujarat Subordinate Services Selection Board. It also clarified that the competitive examination will have to be conducted as per the Government Resolution dated 27th July, 1999 and the Selection Board will make the selection accordingly. It is on the basis of this communication that further communication dated 19th July, 2004 at Annexure-C has been addressed by the Director General of Police to the Secretary, Gujarat Subordinate Services Selection Board. Referring to page 25, which is produced with this communication with regard to the number of vacancies and the category, Mr. Pujara emphasised that the ratio of direct recruitment and promotion has been specified as 5:4:1, total strength is 1901 and the number of vacant posts are 235. He submitted that out of these posts, as stated on page 27 of Annexure-C, the requisition was for 189 vacancies, out of which 73 were reserved for Scheduled Tribe and 116 for General candidates. He also referred to Annexure-F at page 38, which is the order passed by respondent No.2 dated 28th May, 2007, by which the petitioners have been given the SCA/7922/2008 17/69 JUDGMENT appointments (very same order with annexures is also produced as Annexure-III to the affidavit of Director General of Police) and submitted that there is a reference to the recruitment process and special selection from amongst the candidates working in the department and though it refers promotion in this order, in fact, it is appointment. Mr. Pujara submitted that as per this order, the selected candidates were directed to remain present and join for refresher course, as provided in the Police Manual, 1975 (Rules 61 and 164) with effect from 4th June, 2007. It also makes it clear that they have to present themselves at Gujarat Police Academy on 3rd June, 2004. Mr. Pujara also submitted that on the basis of this communication, the petitioners, who were selected and were in the waiting list, were given the appointments when the appointments could not be offered to four candidates for various reasons. Therefore, pursuant thereto, they have joined at the police academy, undergone the training and thereafter, they have been given the postings. 7.1 Mr. Pujara submitted that once the petitioners have undergone the recruitment process, have passed the written test, oral interview and thereafter, also successfully completed the training, on the basis of which they have been given the postings also, whether the appointment can be cancelled by stroke of pen on the alleged ground that the waiting list has been prepared erroneously as it has not been SCA/7922/2008 18/69 JUDGMENT provided for in the Recruitment Rules. He also referred to various details, including number of post/break up of the post, i.e. 116 for General Category