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2019 DIGILAW 465 (UTT)

KM. KANCHAN v. STATE OF UTTARAKHAND

2019-08-27

ALOK KUMAR VERMA, RAMESH RANGANATHAN

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JUDGMENT Ramesh Ranganathan, C.J. (Oral) Heard Mr. Tapan Singh, learned counsel for the appellant-writ petitioner and Mr. B.S. Parihar, learned Standing Counsel for the State Government and, with their consent, the Special Appeal is disposed of at the stage of admission. 2. This Special Appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 3239 of 2017 dated 30.07.2019. The appellant-writ petitioner invoked the jurisdiction of this Court seeking a writ to quash the order dated 02.11.2017, whereby the appellant-writ petitioner was directed to be sent back from her on-going training with immediate effect; and a writ of mandamus commanding respondents 1 to 3 to give appointment, to the appellant-writ petitioner, in the post of Constable (Female) in district Dehradun, as she had successfully qualified in the physical as well as the written test, and had also almost completed her nine months' training. 3. Facts, to the limited extent necessary, are that, pursuant to an advertisement issued to fill up 32 posts of Female Constables reserved in favour of the Scheduled Castes, (of which two posts were horizontally reserved in favour of the Scheduled Caste women Home-Guards), the appellant-writ petitioner was selected and was shown at Serial No. 30 in the select list. Thereafter, on realizing that they had erroneously not recorded the 20 marks secured by the fourth respondent in the cricket ball throw test, the respondents corrected the error and, as a result, the fourth respondent was found more meritorious than the petitioner in the Scheduled Caste women category, and was included in the select list in her place. Questioning her exclusion from the select list, and the inclusion of the fourth respondent therein, the petitioner invoked the jurisdiction of this Court by filing Writ Petition (S/S) No. 2049 of 2016 and this Court, by order dated 20.10.2016, restrained the Superintendent of Police, Dehradun from issuing any appointment letter to the third respondent therein (i.e. the fourth respondent herein). 4. 4. Thereafter, by order in Writ Petition (S/S) No. 2049 of 2016 dated 09.01.2017, the learned Single Judge observed that there was one post of Constable for which the appellant-writ petitioner and the third respondent therein (i.e. the fourth respondent herein) were competing with each other; the appellant-writ petitioner was earlier selected but, thereafter, her name was deleted, and the name of the third respondent had been included; the remaining selected candidates had already been sent for training; and purely as a matter of caution, and so that training may not expire, both the appellant-writ petitioner and the third respondent were permitted to join training, making it clear that both their candidature was provisional in nature, and was subject to the final determination of the Writ Petition. Consequent thereto the appellant-writ petitioner, along with the fourth respondent herein, joined the nine months' training course. 5. While the appellant-writ petitioner and the fourth respondent herein were undergoing training, Writ Petition (S/S) No. 2049 of 2016 was finally disposed of by order dated 05.06.2017. In the said order dated 05.06.2017, the learned Single Judge took note of the submission that, as many as four Scheduled Caste women candidates had left training resulting in the occurrence of four vacancies; and that the appellant-writ petitioner could be accommodated and appointed as a Constable (Female) in the Civil Police in such vacancies. Finding substance in this submission, the learned Single Judge disposed of the Writ Petition directing the Senior Superintendent of Police, Dehradun to consider the petitioner's claim for appointment against any one of the vacancies, which had so occurred, within a period of six weeks from the date of production of a certified copy of the order. The appellant-writ petitioner's candidature, for appointment as a Constable, was made subject to her fulfilling all the conditions of eligibility for recruitment; and, till such a decision was taken, she was permitted to undergo training. The appellant-writ petitioner's representation was disposed of by the order impugned in Writ Petition (S/S) No. 3239 of 2017 dated 02.11.2017. 6. The appellant-writ petitioner's candidature, for appointment as a Constable, was made subject to her fulfilling all the conditions of eligibility for recruitment; and, till such a decision was taken, she was permitted to undergo training. The appellant-writ petitioner's representation was disposed of by the order impugned in Writ Petition (S/S) No. 3239 of 2017 dated 02.11.2017. 6. In the order, impugned in Writ Petition (S/S) No. 3239 of 2017, the Senior Superintendent of Police, Dehradun stated that, since 30 posts were reserved in favour of the Scheduled Caste (Women) category (apart from the two posts horizontally reserved in favour of Home Guards under the Scheduled Caste (Women) category), a merit list of 30 Scheduled Caste (Women) candidates was prepared, wherein the appellant-writ petitioner's name was erroneously included at Serial No. 30, though the fourth respondent had secured more marks than her; on realizing the mistake, the name of the fourth respondent was substituted in the place of the appellant-writ petitioner; there was no provision for a waitlist to be prepared under the Rules; and any vacancy, which arose consequent upon the person who joined training having resigned thereafter, could not be filled up except by a fresh process of selection. It is this order of the Senior Superintendent of Police, Dehradun, which was subjected to challenge in Writ Petition (S/S) No. 3239 of 2017. 7. In the order under appeal dated 30.07.2019, the learned Single Judge observed that the reasons assigned by the Senior Superintendent of Police, Dehradun, for rejecting the appellant-writ petitioner's claim, were that there was no provision for preparation of a wait-list; therefore, if any selected candidate left training or did not join duty in the department, such vacancy could not be filled up by other candidates selected in the same selection; a vacancy caused, due to the resignation of a selected candidate, had to be treated as a new vacancy, which could only be filled up in a subsequent selection; and it was settled law that, once a selected candidate accepted the offer of appointment and joined the post, the vacancy, if any, caused due to his/her resignation could only be filled up through a fresh process of selection. In the light of the stand taken by the respondents in the impugned order, that there was no provision to prepare a wait-list, the learned Single Judge found no reason to interfere therewith, more so since this stand was not disputed by the appellant-writ petitioner. 8. While reiterating that there were four vacancies in the posts of Constables (Female), under the Scheduled Caste category, since four Scheduled Caste Constables (Female), who were selected pursuant to the earlier advertisement and had joined training, had left training mid-way resigning from the post, Mr. Tapan Singh, learned counsel for the appellant-writ petitioner, would contend that the appellant-writ petitioner, being the next most meritorious candidate in the select list, ought to have been considered for any one of these four posts, more so as she was permitted to undergo training in terms of the orders of this Court. 9. Even in cases where the Rules provide for the preparation and operation of a wait-list, candidates in the wait-list are entitled to be included in the select list only in case a selected candidate does not join the post, in which case the vacancy would be treated as remaining unfilled, which can be filled up from one among the wait-listed candidates. If, on the other hand, a candidate joins the post, and thereafter resigns, such vacancy can no longer be considered as a vacancy which remains unfilled; and, since the said vacancy was caused on the resignation of a selected candidate who had joined the post and had resigned thereafter, the said vacancy is required to be filled up through a fresh process of selection. 10. In the present case, it is not in dispute that there is no statutory provision relating to the preparation and operation of a wait-list. Consequently any vacancy, which may have arisen consequent on the resignation of any of the selected candidates, cannot be filled up by the next meritorious candidate, who was not earlier included in the select list, since there is no provision for the preparation and operation of a wait-list under the Rules. 11. While we find considerable force in the submission of Mr. 11. While we find considerable force in the submission of Mr. Tapan Singh, learned counsel for the appellant-writ petitioner, that the appellant-writ petitioner was not at fault, and the respondents were solely to blame for the error in the preparation of the select list, that would, however, not justify the appellant-writ petitioner being considered for appointment in violation of the Rules, nor would this Court be justified in directing the respondents to select candidates, other than those in the select list, as the Rules do not provide for the preparation and operation of a wait-list, that too in vacancies which have not remained unfilled, but arose as the candidates, who had joined duty, had resigned thereafter. 12. The jurisdiction which a Division Bench exercises, in an intra-Court appeal, is extremely limited and, save cases where the order under appeal suffers from a patent illegality, no interference is called for. We find no such infirmity in the order under appeal. 13. The Special Appeal fails and is, accordingly, dismissed. No costs.