1. By way of this petition, the petitioner has prayed for following reliefs:
“(A) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents-Authorities to give posting to the petitioner in the cadre of Police Constable (Unarmed), and to permit the petitioner to work as such without any disturbance;
(B) Pending the hearing and final disposal of the petition, Your Lordship may be pleased to direct the respondents- Authorities to give posting to the petitioner in the cadre of Police Constable (Unarmed);
(C) An ex-parte ad-interim relief in terms of prayer (B) may kindly be granted.
(D) And to pass such other and further orders as may be deemed just and proper”.
2. Brief facts of the present petition are as under:
2.1 In the year 1994, the respondent-Authorities made recruitment for the post of Police Constable in the Police Department. The petitioner was selected and his name was shown at Sr.No.60 in the select list prepared by the respondent-Authorities. The respondent-Authorities prepared a select list consisting of 66 persons, and 20 names were shown in the 'waiting list'.
2.2 The respondents posted first 29 persons (Sr.No.1 to Sr.No.29) as per the select list as Police Constables (Unarmed); the persons at Sr.No.30 to Sr.No.55 as Police Constable (Armed) and the persons at Sr.No.56 to Sr.No.66 as Police Constables in'Band Branch'.
2.3 As per the requirement, the candidate has to fill up the form and in the said form, he has to show his willingness for working in a particular Branch, namely, Armed Branch or Unarmed Branch. It is his case that and nowhere, it is stated that the persons selected as Police Constable will also have to work in the 'Band Branch' of the Police Department.
2.4 On 17.10.1994, though the petitioner is qualified to work as Police Constable (Unarmed) as per the select list, he was posted in the 'Band Branch' by the appointment order dated 17.10.1994. The petitioner made representation to various higher Authorities in this behalf.
2.5 Thereafter, the 'waiting list' was also operated by the respondent-Authorities and, initially, two persons from the 'waiting list' were given appointment in the Armed Branch and Unarmed Branch and thereafter, the said 'waiting list' was operated qua remaining 17 persons.
2.6 Out of remaining 17 persons, 16 persons were given posting in the Unarmed Cadre as Police Constable (Unarmed) and one person was posted in the 'Band Branch' of the Police Department. Since the juniors to the petitioner who were in the 'waiting list' were given the posting in the unarmed Cadre as Police Constable (Unarmed), the petitioner made representation to the respondents-Authorities from time to time.
2.7 Since he was dissatisfied with his posting, he applied to appear in the recruitment held in the year 1996 and, for that, he had requested for sanction from the concerned Authorities also. However, the respondent-Authorities have refused to grant sanction/permission to appear in the interview.
2.8 On 17.4.1997, in pursuance of the representations made by the petitioner, the respondents-Authorities transferred the petitioner into the Armed Cadre as Police Constable (Armed), by the order dated 17.4.1997.
2.9 However, by order dated 2.6.1999, the petitioner was again posted in the 'Band Branch' from the Armed Branch as Police Constable (Armed). Being aggrieved by the said order, the petitioner has filed this petition.
3. Counsel for the petitioner submitted that though the petitioner was qualified to work as Police Constable (Unarmed) as per the select list, he was posted in the 'Band Branch' by the appointment order dated 17.10.1994 and the petitioner's posting was wrongly done.
4. Counsel for the respondent submitted that since the petitioner had participated in the recruitment process and had given his consent to the appointment for the post of Constable in the Band Division and having accepted the appointment, he cannot make grievance about the same.
5. In the call letter, there was a specific note that there are 10 vacancies in the Police Band and it was stated that in the selection of Armed Police Constables, the last 10 candidates will be given appointment in the Band Division.
6. The petitioner pursuant to the call letter had participated in the recruitment process and had secured 67 marks out of 100 in the examination and thus petitioner was not eligible for including his name in the selection list for the post of Armed and Unarmed Police Constables. The petitioner was requested that if he is ready and willing to take appointment in the Band Division then he may file consent to that effect and the petitioner had given his consent on 3.9.1994 and he had willingly accepted his appointment in the Band Division. Therefore, having participated in the recruitment as well as having given consent for the appointment in the Band Division, he was given appointment and therefore, he cannot challenge the appointment in the Band Division.
7. On 11.4.1997, the petitioner had represented to D.S.P. and petitioner was transferred to Thara Police Station from Palanpur Head Quarter. Since there was again recruitment to train other persons in the Band Division, the petitioner was again transferred to Police Head Quarter Band Division from Thara Police Station and it was not that the petitioner was only posted to his original division but other 6 employees were also posted in the Band Division.
8. Further, the claim of the petitioner is a belated one and therefore, the same cannot be entertained in view of following four judgments, which are as under:
(1) In the case of the Maniben Devraj Shah V/s. Municipal Corporation of Brihan Mumbai reported in (2012) 5 SCC 157
(2) In the case of the Shiv Dass V/s. Union of India and Ors. reported in AIR 2007 SC 1330
(3) In the case of the C.Jacob v/s. Director of Geology and Mining and Another reported in (2008) 10 SCC 115
(4) In the case of the Eastern Coalfields Ltd. V/s. Dugai Kumar reported in 2008(10) Scale 449
9. Further, in breach of his own undertaking the petitioner has not resumed duty at new posting. In view thereof, the petition deserves to be dismissed and same is dismissed. Rule is discharged.
10. However, the petitioner is at liberty to make a representation to the respondents. If such representation is made by the petitioner, it is hoped that the same will be considered on merits and will not be rejected merely because this petition is dismissed.
(K.S.JHAVERI, J.) (ashish)