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2003 DIGILAW 744 (RAJ)

Sanjay Rathore v. State of Rajasthan

2003-05-13

SUNIL KUMAR GARG

body2003
Honble GARG, J.–This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 25.9.1998 against the respondents with the prayer that by an appropriate writ, order or direction, the respondents be directed to give appointment to the petitioner on the post of Sub Inspector/Platoon Commander with effect from 1.6.1998 with all consequential benefits including confirmation, seniority etc. (2). The case of the petitioner as put forward by him in this writ petition is as follows:- The recruitment to the post of Sub Inspector/Platoon Commander in Police Department, Government of Rajasthan is governed by the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as ``the Rules of 1989). The posts of Sub Inspector/Platoon Commander are inter- changeable. There is same recruitment process and same qualifications are required for the post of Sub Inspector and Platoon Commander. The examinations and selections are also common. Under the Rules of 1989, the selection to the post of Sub Inspector of Police is held by the Rajasthan Public Service Commission (for short ``Commission). The further case of the petitioner is that the Commission issued an advertisement Annex. 1 dated 23.1.1996 inviting applications for 226 posts of Sub Inspector/Platoon Commander and in pursuance of the said advertisement Annex. 1, the petitioner being eligible applied for the said post of Sub-Inspector/Platoon commander. He was called to appear in the written test and he appeared and he was selected for appointment to the post of Sub Inspector of Police. The further case of the petitioner is that when he was not given appointment he submitted a representation to the respondent No. 2 Director General of Police, Government of Rajasthan, Jaipur on 12.8.1997, a copy of which is marked as Annex. 2. Thereafter, the petitioner received a communication dated 23.8.1997 asking the petitioner to undergo Medical Test and Character Verification. A copy of the said communication dated 23.8.1997 is marked as Annex. 3. Accordingly, the petitioner underwent medical test and character verification and completed the same also. The further case of the petitioner is that on 20.10.1997, an order Annex. 4 was issued by the respondent No. 2 Director General of Police, Government of Rajasthan by which as many as 181 candidates were given appointment to the post of Sub Inspector of Police and the persons in general category upto the merit No. 120 were given appointment. Thereafter, another order Annex. 4 was issued by the respondent No. 2 Director General of Police, Government of Rajasthan by which as many as 181 candidates were given appointment to the post of Sub Inspector of Police and the persons in general category upto the merit No. 120 were given appointment. Thereafter, another order Annex. 5 dated 6.11.1997 was issued by the respondent No. 2 Director General of Police by which appointments to the persons belonging to general category were given upto the merit No. 181. According to the petitioner, thereafter, through another orders, appointments were given to the persons belonging to the general category upto the merit No. 203. The further case of the petitioner is that some persons though appointed, but did not join and, therefore, a report to this effect was sent by the Principal, Police Training Centre, Jodhpur to the respondent No. 2 Director General of Police through letter dated 17.4.1998, a copy of which is marked as Annex. 6. According to the petitioner, five candidates of general category had not joined in pursuance of the advertisement Annex. 1 Thereafter, the petitioner submitted his representation on 11.5.1998, a copy of which is marked as Annex. 7 and the case of the petitioner is that he stands at serial No. 206 in the merit list and since appointments in the general category have been given upto serial No. 203 and since some of the persons appointed in general category have not joined, therefore, his case should have been considered by the respondents for appointment to the post of Sub Inspector of Police and by not considering his case, a discrimination has been made. Hence, this writ petition with the prayers as stated above. The main case of the petitioner is that appointments to the persons upto serial No. 203 in the merit list in the general category have been given and he stood at serial No. 206 in the merit list and since five persons belonging to general did not join, therefore, appointment should have been given to him. A reply to the writ petition was filed by the respondents and it was submitted by them that no doubt through order Annex. 5 dated 6.11.1997, the selected persons were ordered to join the training and through letter Annex. A reply to the writ petition was filed by the respondents and it was submitted by them that no doubt through order Annex. 5 dated 6.11.1997, the selected persons were ordered to join the training and through letter Annex. 7 dated 17.4.1998, the Principal, Rajasthan Police Training Centre, Jodhpur sent the report that some persons had not joined, but in the meantime, a fresh advertisement was already issued by the Commission to fill up the posts of Sub Inspector of Police and the entire recruitment process in pursuance of advertisement Annex. 1 came to an end and in these circumstances, it was not possible for the respondents to give appointment to the petitioner. Furthermore, since persons junior to the petitioner in the merit list have not been given appointment and therefore, no case of discrimination has been made out. Hence, the writ petition filed by the petitioner be dismissed. A rejoinder was also filed by the petitioner and it has been submitted by the petitioner that it was wrong to say that a fresh advertisement was issued by the Commission and the process of selection in pursuance to advertisement Annex. 1 came to an end and persons were also appointed in pursuance of advertisement Annex. 1 dated 23.1.1996. Hence, the case of the petitioner should have been considered. (5). I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. (6). There is no dispute on the point that in pursuance of advertisement Annex. 1 dated 23.1.1996, appointments to the persons in the general category have been given upto serial No. 203 of the merit list and the petitioner stood at serial No. 206 in the merit list. (7). There is also no dispute on the point that even persons standing at serials No. 204 and 205 in the merit list have not been given appointment. (8). There is also no dispute on the point that no person junior to the petitioner in the merit list has been given appointment. (9). There is also no dispute on the point that no waiting list was prepared by the respondents. (10). (8). There is also no dispute on the point that no person junior to the petitioner in the merit list has been given appointment. (9). There is also no dispute on the point that no waiting list was prepared by the respondents. (10). The question for consideration in the above facts and circumstances is whether the petitioner is entitled to appointment to the post of Sub Inspector of Police or not while standing at serial No. 206 in the merit list, though merit list exhausted upto serial No. 203 from general category. (11). The Honble Supreme Court in various judgments has made the position of law clear in respect of appointment/recruitment and the same may be summarized in the following manner:- (i) That it is open to the Government to decide now many appointments to a Service shall be made and to change this number according to administrative exigencies. Hence, no right to be appointed to a post can be created by promissory estoppel merely because a particular number of anticipated vacancies had earlier been notified. (ii) That in short, it is in the discretion of the Government not to fill up any vacancy. But the Court may interfere if this power is used mala fide or arbitrarily so as to deprive a duly qualified candidate or a candidate recommended by the Public Service Commission or a Selection Board. (iii) That the mere fact that a candidates name appears in the merit list gives no indefeasbile right to appointment even if a vacancy arises. If a number of vacancies are notified for appointment, it only amounts to an invitation to qualified candidates to apply for recruitment, but on their selection they do not acquire any right to the post. (iv) That unless the Rules so indicate the State is under no legal obligation to fill up all or any of the vacancies, but the decision not to fill up vacancies has to be taken bona fide for appropriate reasons and not arbitrarily. (v) That on the other hand, if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of each candidate, as reflected at the recruitment test, and no discrimination can be permitted. (vi) That no right accrues to a person merely because a person is selected and his or her name is put on a panel. (12). (vi) That no right accrues to a person merely because a person is selected and his or her name is put on a panel. (12). For the above, the decisions of the Honble Supreme Court in the following cases may be referred to:- (1) Jatinder Kumar vs. State of Punjab (1). (2) Shankarasan Dash vs. Union of India (2). (3) S. Renuka and Ors. vs. State of AP & Anr. (3). (13). Thus, from the above position of law as propounded by the Honble Supreme Court from time to time, it is clear that it is in the discretion of the Government not to fill up any vacancy and mere fact that a candidates name appeared in the merit, it gives no right to appointment even if a vacancy arises. From this point of view, the petitioner cannot seek a mandamus against the respondents that he should have been appointed by the respondents. (14). So far as the powers of the Court under Article 226 of the Constitution of India are concerned, it may be stated here that when the Court feels that there is a malafide or arbitrariness on the part of the appointing authority, the Court can interfere. Since in the present case, no person junior to the petitioner in the merit list has been given appointment, therefore, it cannot be said that there is a malafide on the part of the respondents or there is arbitrariness on the part of the respondents. (15). It may be stated here that in recruitment and appointment, a situation generally arises that when a last candidate, who is selected, stands for example at serial No. 99 in the merit list, the person, who stands at serial No. 100 in the merit list, would always ask for appointment, but it is not possible to give appointment and for example, if the person standing at serial No. 100 is given appointment, the person, who stands at serial No. 101 would ask for the same remedy and that is why, the Honble Supreme Court has made the position clear that if the name of the candidate has appeared in the merit, it gives no right to appointment. (16). For the reasons stated above, the petitioner is not entitled to appointment in pursuance of advertisement Annex. 1 dated 23.1.1996 and therefore, this writ petition is liable to be dismissed. (17). (16). For the reasons stated above, the petitioner is not entitled to appointment in pursuance of advertisement Annex. 1 dated 23.1.1996 and therefore, this writ petition is liable to be dismissed. (17). The learned counsel for the petitioner has placed reliance on the decision of the Honble Supreme Court in Miss Neelima Shangla vs. State of Haryana and Ors. (4). In my considered opinion, that ruling would not be helpful to the petitioner as in the present case persons upto serial No. 203 in the merit list have been given appointment and, furthermore, no person junior to the petitioner has been offered appointment. (18). Similarly, the rulings relied upon by the learned counsel for the petitioner in A.P. Aggarwal vs. Govt. of NCT of Delhi and Anr. (5), Bhupendra Kumar and Ors. vs. State of Raj. & Ors. (6), and Pukhraj Singh vs. State of Raj. and Ors. (7), would not be helpful to the petitioner in view of the discussion made above. Accordingly, the writ petition filed by the petitioner is dismissed. No order as to costs.