1. Heard Km. Vishwa Mohini, learned counsel for the petitioners and Sri Vishal Verma, learned Brief Holder for the State-respondents.
2. The order under challenge is dated 05.10.2006, passed by the Deputy Inspector General of Police, Establishment, U.P. whereby the representation of the petitioners, which was preferred in compliance of order of this Court, was rejected.
3. The short controversy involved in the issue in question is that as to whether the petitioners can claim to be declared selected for the vacancies which occurred in the year 1989, for which, the petitioners were in the waiting list. Admittedly, no interim order was granted in favour of the petitioners.
4. Brief facts of the case which are necessary for disposal of the writ petition are that an advertisement was issued by the U.P. Police Headquarter, Allahabad being Advertisement No.18-71-89 dated 15.04.1989 in the Hindi Daily Newspaper "Dainik Jagran" for filling up 150 vacancies of Sub-Inspector (Ministerial/ Stenographer) and 100 vacancies of Constable (Ministerial) in the Police Department of State of U.P.
5. As per learned counsel for the petitioners, since the petitioners were qualified for the post in question, therefore, they filled the application form on the prescribed proforma. The written test for selection of Sub-Inspector (Ministerial/ Stenagrapher) was held from 23.10.1989 to 25.10.1989. The petitioners had also participated in the aforesaid written test and were declared successful vide result dated 27.08.1990 and accordingly the petitioners were invited for interview along with their original testimonials.
6. Initially, the date of interview was fixed but later on the authorities concerned postponed the interview without any rhyme or reason, as alleged, therefore, some writ petitions were filed before this Court and the issue was set at rest by order of special appeal in Special Appeal No.608 of 1992, whereby the Division Bench of this court had directed to proceed with the selection process, strictly in accordance with law, at the earliest. In compliance of the aforesaid direction of the Division Bench of this Court, the interview was conducted from 13.05.1996 to 20.05.1996 and final result was declared on 30.06.1996. It has been admitted by the petitioners vide para-8 of the writ petition that their names did not figure in the list of finally selected candidates. As per learned counsel for the petitioners, out of total 150 vacancies of Sup-Inspector (Ministerial/ Stenographer), the result of only 146 candidates was declared and the result of 4 posts was not declared for the reason of non-availability of Scheduled Caste candidates.
7. Learned counsel for the petitioners has further submitted that out of these 146 posts, various selected candidates did not turn up and large number of unfilled vacancies was lying vacant and no waiting list was parepared for the reasons that there was no provision for preparation of a waiting list. However, as per learned counsel for the petitioners, in the year 1987 the respondents had prepared the waiting list.
8. Feeling aggrieved out of the aforesaid inaction of the authorities for not preparing the waiting list, some of the candidates filed writ petition bearing Writ Petition No.10221 of 1997 before this Court praying for a direction to the State Government to consider the case of that petitioners against available vacancies. As per learned counsel for the petitioners, those writ petitions were disposed of on 30.03.1998 without expressing any opinion on merits, however, this Court directed the Deputy Inspector General of Police to decide the matter of those petitioners in respect of preparation of waiting list. In compliance of the aforesaid order, the authority concerned passed an order dated 14.05.1998 rejecting the claim of the petitioners on the ground that since there was no provision for preparation of waiting list, therefore, the waiting list could not be prepared.
9. Being aggrieved against the aforesaid order dated 14.05.1998, some candidates filed writ petition before this Court bearing Civil Misc. Writ Petition No.27653 of 1998 making request that unfilled vacancies of the selection in question be filled up considering the candidature of those candidates who were however not figured in the select list but they were in a waiting list if the same would have been prepared.
10. The aforesaid writ petition was finally decided by this Court vide order dated 24.05.1999, whereby this Court followed the direction of the Division Bench given in Special Appeal No.313 of 1998 on 03.02.1999. It is to be noted that the order under challenge in Special Appeal No.313 of 1998 was the order dated 28.05.1997, whereby the learned Single Judge of this Court had passed the following order:-
"The respondents are directed to prepare a waiting list in the said examination and consider and appoint the persons in the waiting list in accordance with merit to the extent of the number of candidates in the main select list who had not jointed."
11. It has also been noticed that for seeking redressal of their grievance, the petitioners hereto had not filed any writ petition before this Court till the year 2005 and 2006 inasmuch as the petitioner No.4 hereto has filed on writ petition bearing Writ Petition No.8230 (S/S) of 2005, whereas the petitioner Nos.1, 2 & 3 have filed writ petition bearing Writ Petition No.7318 (S/S) of 2006. The Writ Petition No.8230 (S/S) of 2005 was finally disposed of by this Court on 24.05.2006 whereas the Writ Petition No.7318 (S/S) of 2006 was finally decided on 28.08.2006, the orders thereof have been annexed as Annexure Nos.8 and 9 to the writ petition. Both the aforesaid orders i.e. order dated 24.05.2006 and 28.08.2006 have been passed in the same terms and conditions. In both the aforesaid writ petitions, the petitioners had prayed for issaunce of a writ of mandamus commanding the respondents to forthwith offer appointment to the petitioners against unfilled vacancies to the post of Sub-Inspector (Ministerial/ Stenographer) in U.P. Police. The petitioners had contended that since they were duly selected persons in the written examination and also in the interview, therefore, they be provided appointment for the post in question inasmuch as there remained certain vacancies unfilled and no waiting list was prepared by the opposite parties. This Court while disposing of the aforesaid writ petition passed the following order. The operative portion thereof is being reproduced here-in-below:-
"Under the circumstances a direction is issued to the respondents to consider the case of the petitioners for giving appointment against the unfilled vacancies in the respective categories in terms of the aforesaid judgment within three months from the date of production of a certified copy of this order before the authority concerned.
With the aforesaid observations and directions, the writ petition is disposed of finally."
12. This Court has further noted that some candidates, who had appeared in the examination in question, had continuously approached this Court and positive orders being passed in their case and also the issue in question was set at rest by Hon'ble Apex Court, whereby the Special Leave Petition of the State Government was dismissed by Hon'ble Apex Court on 27.09.2000.
13. It is further noted here that the petitioners hereto have not filed any writ petition since 1996 when the writ petitions were initially filed in the issue in question till 2000 when the issue in question was set at rest by Hon'ble Apex Court on 27.09.2000, dismissing the Special Leave Petition of the State Government. Not only the above, the petitioners hereto have not filed any writ petition after the year 2000 till 2005 and 2006. The Writ Petition No.8230 (S/S) of 2005 and Writ Petition No.7318 (S/S) of 2006 were filed. This fact shows that the present petitioners were absolutely silent for their grievances upto the year 2005 and 2006 and all of sudden they filed their writ petitions seeking the benefit of orders being passed in identical matters way back in the years 1997 to 1999. However, this Court vide order dated 24.05.2006 and 28.08.2006 passed in Writ Petition No.8230 (S/S) of 2005 and 7318 (S/S) of 2006 respectively directed the opposite parties to consider the case of the petitioners for giving them appointment against unfilled vacancies in their respective categories in terms of judgment and order passed in earlier writ petitions.
14. Just after receiving the orders dated 24.05.2006 and 28.08.2006 respectively, the Deputy Inspector General of Police, Establishment, U.P. has passed the order dated 05.10.2006, which is impugned herewith.
15. While passing the aforesaid order dated 05.10.2006, the Competent Authority has considered each facts and circumstances of the case in detail and submitted that presently there are no available vacancies for the selection in question and, therefore, the petitioners may not be offered for appointment for want of vacancies. The authority concerned has categorically indicated that the directions of this Court was for providing appointment to the petitioners against unfilled vacancies and since no unfilled vacancies are available, therefore, the appointment may not be provided. In the aforesaid order, the authority concerned has indicated that those vacancies, which were unfilled, have been filled up through the candidates of the backward quota strictly within their quota and lastly in the year 2000, 4 posts were available, even as per learned counsel for the petitioners also, those posts were filled up through the candidates in favour of whom the order of this Court was passed and later on upheld by the Hon'ble Apex Court. All the exercise had already been completed in the year 2000 itself after the order of Hon'ble Apex Court being passed, therefore, on account of unavailability of vacancies, the petitioners may not be provided appointment.
16. The learned Brief Holder for the State-respondents has submitted that the order dated 05.10.2006 passed by the Deputy Inspector General of Police, Establishment, U.P. is the justifiable order whereby the direction of this Court has been followed in its letter and spirit inasmuch as this Court was pleased to direct the authority concerned to provide an appointment to the petitioners against unfilled vacancies but since no unfilled vacancies were available in the year 2006, therefore, no appointment could have been given to the petitioners hereto. The authority concerned has also stated in his aforesaid order as to how those vacancies were filled up and what is the present position/ status of the vacancy.
17. I have appreciated the rival contentions of the parties and perused the record.
18. Since the selection in question was of the year 1989 and admittedly the names of the petitioners did not figure in the select list. At the best, the petitioners might be the candidates having top position in the waiting list, but it starts after the list of selected candidates. In any case the petitioners cannot be treated as the candidates of selected list. Further, when the first round of litigation started on the issue in question so many writ petitions were filed in the year 1996, 1997, 1998 and 1999, but the petitioners hereto did not file any writ petition. The issue in question was admittedly set at rest when the Hon'ble Apex Court dismissed the Special Leave Petition of the State Government on 27.09.2000, but the petitioners hereto did not file any writ petition upto the year 2000 and even not upto the year 2005 and 2006. The aforesaid facts makes it abundantly clear that the petitioners hereto were not prompt enough to get his grievances adjudicated before the Court at the earliest. Normally, the life of the select list is of one year but in the instant case the life of the select list continues to the year 2000 on account of positive intervention of this Court as well as by Hon'ble Apex Court. Since no vacancies were available with the department after the year 2000 as indicated in the order dated 27.09.2000, which does appear to have sense, no appointment can be provided to the petitioners if the vacancies are not available in the year 2006. With the careful consideration of the issue in question, I find that the instant writ petition is misconceived.
19. In Oriental Bank of Commerce Vs. Sunder Lal Jain and another,(2008)2 SCC 280 the Hon'ble Apex Court after referring to its earlier judgments in Bihar Eastern Gangetic Fisherman Cooperative Society Ltd. Vs. Sipahi Singh (1977) 4 SCC 145; Lekhraj Sathramdas Lalvani Vs. N.M. Shah, AIR 1966 SC 334, Dr. Uma Kant Saran Vs. State of Bihar 1993(1) SCC 485 and observed as under:
"There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation."
20. Since no legal right has been shown to exist for enforcement whereof the petitioners have come to this Court, the relief sought cannot be granted.
21. Even otherwise, no person has any right to seek a mandamus for getting appointment on a particular post. In the case of Shankarsan Dash Vs. Union of India, 1991(3) SCC 47 the Hon'ble Apex Court said:
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899."
22. In the case of U.P. Public Service Commission, Allahabad and Anr. Vs. State of U.P. and Anr., 2007(5) ADJ 280 (DB) in which rights of wait list candidate was considered by this Court, in para-15 of the judgment held:-
"A wait list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list."
23. This Court in taking the aforesaid view relied upon the decision in Ved Prakash Tripathi Vs. State of U.P., 2001(1) ESC 317 and Surinder Singh and others Vs. State of Punjab & Anr., (1997) 8 SCC 488 and held that even a select list candidate has no indefeasible right to claim appointment. In para 31 of the judgment in U.P. Public Service Commission, Allahabad and Anr. (supra) this Court has further held as under:
"Moreover, even in the case of a select list candidate, the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for a valid reason."
24. In view of the aforesaid law laid down in Shankarsan Dash (supra) and U.P. Public Service Commission Allahabad & Anr. (supra), I am of the opinion that petitioners have no legal or statutory right to enforce.
25. The writ petition lacks merit and it is accordingly dismissed.
26. No order as to costs.
Order Date :-December 20, 2018.
Suresh/ [Rajesh Singh Chauhan,J.]