Jayant Patel, J.
1. In all this group of petitions the facts are interconnected and to some extent the issues involved are also interconnected and therefore they are being dealt with by this common judgment.
2. The short facts of the case are that during the period prior to 1980 the recruitment to the post of Police Sub Inspector (hereinafter referred to as 'PSI' for short) was made by separate Recruitment Board constituted under the provisions of Gujarat Police Manual, 1971 Part I Rule 61. The said Selection Committee was headed by the Inspector General of Police. It appears that during the period of 1980 vide Notification, dated 21.1.1980 such work for recruitment for the post of PSI in the State was entrusted to Gujarat Public Service Commission (hereinafter referred to as 'GPSC' for short). It further appears that thereafter there was a report of Bavecha Committee and it was recommended in the said report that the recruitment of Class I & II officers should be concentrated by the Public Service Commission and the recruitment of Class III officers should be handed over to different agency according to need. Therefore, accordingly, the State Govt had constituted a Subordinate Staff Selection Board for the recruitment of various Cl.III cadres and the work for such purpose was entrusted to the said Board in the year 1991 and it was taken out from the purview of GPSC as per notification, dated 23.4.1991. It is the case of the State Govt that on account of aforesaid process of recruitment Class III cadres and the work for such purpose was entrusted to the said Board in the year 1991 and it was taken out from the purview of GPSC as per notification, dated23.4.1991. It is the case of the State Govt that on account of aforesaid process of recruitment of Class III cadres being assigned to Staff Selection Board, the matter was considered and the Govt had thought it fit to constitute a separate and independent Recruitment Board for un-Armed PSIs being Cl.III cadre and such Board was to be made under the Home Dept of the State Govt and therefore ultimately vide resolution, dated 9.10.1997 of the State Govt, the PSI recruitment Board was constituted and simultaneously the Recruitment Rules were also framed for the post of PSI in exercise of powers under section 5 of the Bombay Police Act, 1951. It may be stated that in the mean time vide Notification dated 28.8.97 function for recruitment of PSI was excluded from the purview of GPSC by deleting Entry No. 22 Cl(h) which was earlier in existence. It is the case of the State Govt that such Gujarat Police Sub Inspector Recruitment Board (hereinafter referred to as 'the Board') is required to be constituted as and when recruitment process for the post of PSI is to be undertaken and after the process is over, the Board shall stand dissolved. In the present case it is the case of the State Govt that such Board came to be constituted on 31.1.1999 comprising of Mr.A.K.Bhargava, Addl.Director General of Police (Admn) as the Chairman and other members being Mr.K.Nityanandam, Secretary (Home), Mr.A.I.Saiyed, IGP, & Principal, PTC, Junagadh and Mr.Pramodkumar, DIG(Int), Gujarat Stae.
3. It appears that on 15.2.1999 an advertisement was published inviting applications from eligible candidates and one of the aspects which is relevant herein was regarding physical requirement, more particularly, for the chest. The relevant rule provides as under:
'Not less than 165 CMs in hight in case of male candidate. (160 CMs in case of candidate belonging to ST of Gujarat origin) and have a chest measurement of not less than 84 CMs when fully inflated with a maximum expansion of 5 CMs.'
Whereas in the advertisement it was mentioned at Cl.4(2) whose English translation is as under:
Chest: 84 CMs (General) (requirement for expansion of chest is minimum 5 CMs).
4. Another relevant aspect of the advertisement is that the application fee for non-reserved and Ex-Armyman was Rs.50/- whereas there was no such fee for candidates belonging to Scheduled Caste/Scheduled Tribe and/or Socially & Educatinally Backward Class (hereinafter referred to SC/ST/SEBC/SEBC as the case may be). The last date for receiving application was 15.3.99. The total number of posts advertised was 250, comprising of 117 posts for non-reserved category, 25 for Ex-servicemen, 67 for SEBC, 33 for SC and 8 for ST. It is the case of the State Govt that out of total number of applications received, 2283 applications were rejected in its preliminary scrutiny and 39147 candidates were found eligible for preliminary physical test. It appears that thereafter the scrutiny for physical test was conducted from 2.9.99 to 7.9.99 and after the scrutiny as per the stand of the State Govt, 22390 candidates were found eligible to appear in the written test. On 1.8.99 the written test was conducted at the concerned Dist.Headquarters and there were three papers, namely, Gujarati language, English language and the third paper consisting of 2 parts, i.e. General Knowledge and Intelligence Test.
5. Mr. Barot Jignesh Laxmansinh and others who are the petitioners of Special Civil Application No.9379/99 and applicants for the post in question have approached this court alleging that there were large number of irregularities and illegalities committed at the physical test as well as at the written test and they have appeared at the written test as well as at the interview and therefore they have prayed for quashing the recruitment made for the post of PSI by the authority and they have further prayed for giving directions to the respondent authority to make fresh recruitment for the post of PSI by issuing fresh advertisement and they have also prayed for directing that the mode of selection to be transferred to GPSC or by any expert body in the field.
6. Similarly, Mr.J.A.Sadhu and others, who are the petitioners of SCA No.9383/99, were also the applicants for the post in question and who had appeared in physical as well as written test have approached this court alleging large number of irregularities, illegalities and malpractices etc at the said examination and prayed initially for quashing of the result of the examination and written test and for direction to recheck/reassess the answer sheets of the petitioners and to show the answer sheets to the petitioners on condition as deemed fit by this court. The said petitioners thereafter pending the petition have added prayer for quashing the action of the respondents and to issue appropriate direction to respondents to fill up the vacancies for the post of PSI only from the examination and selection process conducted by the GPSC and to restrain the respondents from recruiting anyone as PSI selected by the Board. The petitioners have also prayed for quashing the resolution dated 9.10.1997 being unconstitutional, violative of Articles 14, 16 and 320 of the Constitution of India. The petitioners have also prayed to restrain the respondents from conducting the remaining two stages of selection, i.e. physical fitness test and viva-voce test pursuant to notice, dated 15.2.1999 and to declare that the written examination conducted on 1.8.99 as without jurisdiction, competence and authority.
7. Mr.Veghjibhai Ponthibhai Mor, who also applied for the post of PSI pursuant to the advertisement has preferred the SCA No.9583/99 and prayed for same reliefs and on the basis of more or less same allegations made by the petitioners of SCA Nos 9383/99.
8. The SCA No.9506/99 is preferred by one Kamleshbhai P.Parmar and others who also applied for the post in question alleging large number of irregularities and illegalities and have prayed for appropriate direction to the respondents to fill up the vacancies for the post of PSI only through the examination and selection process conducted by the GPSC and to quash the resolution, dated 9.10.97 as unconstitutional and also prayed for restraining the respondents from conducting the remaining two stages, i.e. physical test and viva-voce tests and to declare that the written examination conducted by the respondent No.2 on 1.8.99 is without jurisdiction, competence and void.
9. One Bharwad Nathubhai Naranbhai who did not apply pursuant to the advertisement for the post in question on account of his physical requirement of his chest measuring 82 CMs only since in the advertisement it was 84 CMs and therefore he has preferred SCA No.9508/99 and has prayed to quash the entire selection process pursuant to the advertisement for the post of PSI and to give appropriate direction to respondents to make fresh recruitment process in accordance with rules in force for the post of PSI.
10. One Prakashkumar Gobarbhai Desai who also applied for the post pursuant to the advertisement preferred SCA No.9804/99 alleging large number of irregularities and illegalities at the examination and prayed for quashing the action of the respondents in not calling the petitioner for physical test and oral interview and has also prayed for quashing the recruitment procedure pursuant to the advertisement and has further prayed for giving direction to the respondents to recheck the answer sheets of the petitioner and to permit the petitioner to see the answer sheet in the said written test.
11. One Sonara Pankaj Shankerlal and others who also applied to the post in question pursuant to the advertisement and also appeared in the physical test and interview alleging large number of irregularities and illegalities at the said process of physical test and interview have approached this court by preferring SCA No.10075/99 and prayed for direction to respondents to reexamine the petitioners in physical test for the recruitment for the post of PSI and they have also prayed to quash the selection process conducted by respondents qua the physical fitness test being unconstitutional, unfair and unreasonable.
12. One K.A.Prajapati and others who applied for the post in question pursuant to the advertisement and who successfully passed the written test as well as oral test alleging that their names are not mentioned in the select list because more number of general category candidates are selected for the post in question which was reserved for SEBC category have approached this court by preferring SCA No.8814/00 to quash and set aside the select list issued on 3.8.02 and they have also prayed for appropriate direction to respondents to issue specific merit list of written, physical and oral tests of the candidates who appeared at the examination and further prayed for direction to respondents to select the candidates as per the norms and Govt.Resolution dated 29.1.2000.
13. One Barot Rajendrasinh Raghunathsinh and others who had applied for the post and appeared at written as well as oral interview have approached this court by preferring Special Civil Application No.8968/00 alleging that the select list prepared by the respondents and published on 4.8.2000 is not in accordance with the policy of the Govt and not as per the advertisement. It is further alleged that the candidates belonging to reserved category who were otherwise entitled to be included on the basis of merit in the list of general category candidates can not be treated against reserved category and the Govt has not filled up the reserved category accordingly.
14. SCA No.2064/01 is preferred by one Pradeep Kumar Ariya and others who were included in the select list prepared by the Govt but they were not given appointment since the appointments were given by the Govt upto Sl.No.188 and therefore they preferred the petition to declare the action of the respondents of not issuing appointment order to 44 candidates as illegal and to direct the respondent authorities to forthwith issue appointment orders to the petitioners.
15. Patel Ravi Nathabhai and seven others who also applied for the post in question and whose names were in the waiting list have approached this court by preferring SCA No.5530/01 praying for appropriate writ to respondent authorities to operate and exhaust the waiting list in areas of vacancies that have arisen in the select list and waiting list in all of 252 candidates.
16. One Chaudhari Ganpatbhai Lavjibhai and three others have preferred SCA No.5179/02 alleging that the select list prepared by the respondent authorities is not in conformity with the provisions of Govt.Resolution dated 29.1.2000 and therefore they have prayed that the respondents be directed to prepare fresh select list treating the SC & ST and OBC candidates having more marks than 275 marks which is the cut-off marks for general category candidates and thereafter to fill up the reserved category seats in SC and OBC Categories against their respective quota.
17. SCA No.3953 is preferred by Kiran Ishwaralal Modi and other 4 persons asserting that pursuant to direction, dated 3.10.02 passed by this court (Coram: M.S.Shah,J) in CA No.5843/02 affidavit in reply is filed by A.D.Chavda, Under Secretary, Home Dept and as per the said affidavit in reply they would be entitled to get appointment if the list is prepared by the Govt according to Govt.Resolution and therefore the petitioners herein have prayed for giving directions to respondent authorities to include the names of petitioners in the select list as per aforesaid affidavit of the Govt dated 20.12.2002 and to direct the respondents to give appointment to the petitioners.
18. I have heard Mr.Girish Patel, Sr.Counsel appearing with Mr.S.N.Mehta, Mr.Yatin Oza, Sr.Counsel, Mr.Tushar Mehta, Mr.Upadhyay, Mr.Chetan Pandya, Mr.M.H.Rathod, Mr.B.P.Tanna, Mr.Dastoor and Mr.M.H.Popat on behalf of petitioners of respective petitions and Mr.S.N.Shelat, Ld.Advocate General with Ms.Manisha Shah, Ld.AGP for respondents and also Mr.B.D.Jani for some of the respondents in SCA No.9383/99 and other connected matters at length. The rest of the advocates have adopted the submissions of the concerned advocates appearing in similar petitions.
19. Having heard the learned counsel appearing for parties, in my view, the main points which arise for the consideration of the court are as under:
(i) Whether the action of the State Govt of taking away the power of conducting the examination and recruitment from the GPSC and to assign the same to the Board is unconstitutional and bad in law?
(ii) Whether the selection process undertaken by the Recruitment Board to the post of PSI can be maintained under law and, if yes, to what extent?
(iii) Whether the select and waiting lists prepared by the authority are arbitrary and are not in accordance with law and, if yes, what will be the consequential order?
(iv) On the basis of observations and findings on the aforesaid three points, whether the concerned petitioners will be entitled to any relief and, if yes, to what extent?
20. Since the submissions made on behalf of respective petitioners and on behalf of concerned respondents are to some extent co-related and to some extent common and when the interest is common, for the sake of convenience, they shall be dealt with at appropriate place to the extent they are found relevant by record.
21. The contentions raised by Mr.Tushar Mehta and Mr.Rathod are that taking away the power from the Public Service Commission(in the present case GPSC) by excluding the mode of recruitment for the post of PSI is in violation of Articles 315 and 320 of the Constitution of India. It has been submitted that the post of PSI is an important post and therefore with a view to maintain the spirit of the Constitution in any event the mode of recruitment for the post of PSI ought not to have been excluded from the purview of GPSC which was in existence prior to 1980. It has also been submitted that such exclusion specifically violates Article 320(1) and the provisions of Sub.Article (3) of Article 320 enables the power to the President or the Governor of the State, as the case may be for granting exemption in respect of the matters specified in Sub-Article (3) of Article 320 only but the requirement for conducting of examination for appointment to the services of the State for any post is compulsory in view of the mandate of Article 320(1) of the Constitution of India. It is also submitted that the GPSC at the relevant point of time has also objected for excluding the mode of recruitment for the post of PSI from its purview for conducting the examination and the other selection process. It is also submitted that the Recruitment Board which is constituted under the Bombay Police Act is of a peculiar type, namely, that it has no permanent existence and it gets constituted only when the recruitment is to take place and it automatically gets dissolved as and when the recruitment process is over and therefore such power can not be assigned to the Board to undertake the recruitment process for the important post of PSI and therefore it is submitted that the process undertaken by the Board for selection is unconstitutional and void.
22. The challenge on such ground raised by learned advocates M/s Mehta, Rahod, Dastoor and others for respective petitioners, who themselves have accepted the jurisdiction of the Board and have also applied for the post and it appears that the challenge is made only by way of after-thought. Other reliefs prayed by the concerned petitioners go to show that since they could not succeed in getting themselves selected the aforesaid contention is raised. As such in view of principles of acquiescences the petitioners can not be heard to say that there is no authority on the part of the Recruitment Board to undertake the process of selection and it must only be with the GPSC. The petitioners who voluntarily applied pursuant to the advertisement for the recruitment process undertaken by the Board can not be allowed to invoke the jurisdiction of this court under Article 226 of the Constitution of India as regards the challenge to the authority of the recruitment board is concerned.
23. Even otherwise also, by the notification dated 21.1.1980 the recruitment for the post of PSI was included within the purview of GPSC and it continued for a period of ten years and as per the notification dated 23.4.1991 the same was taken out from the purview of GPSC on account of Bavecha Committee report recommending the concentration for the recruitment of Class I & II cadres of the State services by GPSC and for assigning the work of recruitment of Class III cadre to different agency. The aforesaid notification was issued in the year 1991 and the petitioners have approached in the year 1999 and thereafter that too after having applied for the post pursuant pursuant to the advertisement issued by the Board. It further appears that inclusion of various cadres in State services and assigning of such work and the process of regulating such work by GPSC is legislative function of the State and the scope of judicial scrutiny to the challenge to such legislative function would be very limited. Attempt made on behalf petitioners that as per the scheme of the Constitution of India and more particularly in view of Article 320 of the Constitution of India, the power of holding the examination vests with the PSC only and not with any other authority no longer detains me further because as back as in the year 1957 in the case of State of UP vs M.L.Srivastava reported in AIR 1957 SC 912, the Apex Court has held that Article 320(3)(c) of the Constitution of India does not confer any right on a public servant and it is not a right which can be recognised and enforced by writ. It is pertinent to note that in the aforesaid decision the Apex Court has held that the provisions of Article 320(3)(c) are not mandatory and noncompliance thereof does not afford cause of action to the public servant a court of law.
24. Reliance placed upon the judgment of the Supreme Court in the matter of J & K Public Service Commission vs Dr.Narinder Mohan reported in (1994) 2 SCC 630 by Mr.Chetan Pandya, appearing for some of the petitioners is illfounded in as much as when the State frames recruitment rules it may provide for appointment through Public Service Commission. Therefore, the Apex Court took the view that the power of relaxation can not exercised ultravires the recruitment rules which provided for the mode of recruitment through the PSC. Such is not the present case because rules do not provide for mode of recruitment through PSC but by the Recruitment Board. At this stage it would be profitable to make use of certain observations of the Apex Court in the case of J & K Public Service Commission (supra) at para 8 of its judgment:
'Though it is settled law that consultation is not mandatory but as held by this court in Jatinder Kumar vs State of Punjab that the establishment of an independent body like PSC is to ensure selection of best available persons for appointment to a post to avoid arbitrariness and nepotism in the matter of appointment Commission is constituted by persons of high ability, varied experience and of undisputed integrity and further assisted by experts on the subject. Whenever the Govt is required to make appointment to a high public office it is required to consult the PSC.'
25. In view of the aforesaid position of law settled by the Apex Court, I can not accept the contentions that the power of recruitment for the post of PSI must vest with the Public Service Commission. So far as Article 320(1) is concerned, in my view, it can not be read in isolation as sought to be canvassed on behalf of petitioners. The duties assigned under Sub-Article (1) of Article 320 can be read only if such provisions are made under Sub-Article (3). In any event, no right can be said to have been conferred on the petitioners if such examinations are not held by GPSC since it was not assigned with such functions as per regulations. Whether the PSC can allow the regulations for inclusion and/or exclusion of its powers for conducting of examination for services of the State or not, in my view, is not a question which is required to be decided at this stage since the GPSC has not approached this court and therefore the said question is kept open.
26. So far as the constitution of the Board and its powers to undertake the process of recruitment for the post of PSI are concerned,in my view, same is in exercise of powers under Bombay Police Act, 1951 read with Recruitment Rules, 1998 and when the concerned petitioners applied pursuant thereto, the court would not examine such challenge against the constitution of Board and its powers at the instance of the party who has accepted the authority and its power and who is not selected for the post and thereafter approached to this court. In my view if such challenge is permitted at the instance of concerned petitioners, it would result into allowing approbating and reprobating which can not be permitted and therefore the said contention also fails.
27. In view of the aforesaid discussion the first question is decided accordingly by negativing the same.
28. The aforesaid takes me to examine the challenge made by concerned petitioners represented through Ms.Tushar Mehta, Rathod, Dastoor and others who applied for the post and appeared in written test and interview but were not ultimately selected for the post in question. Normally, the court would restrict the scope of judicial scrutiny in the matter of conducting examination qua the petitioners concerned who approached this court by making grievance regarding any irregularity, illegality or malpractice committed during the selection process. But, the tenor of the petition is that on account of largescale malpractices and illegalities committed in the conducting of examination, written test, oral interview, physical endurance tests the selection is vitiated and therefore the concerned petitioners have lost the opportunity of fair competition as per the merit and therefore the selection be quashed. The concerned petitioners had approached this court for interim orders staying the action pursuant to the result declared. However, when the petitions are taken up for final hearing the list was already prepared and was ordered to be operated by the interim order dated 19.2.2001 (Coram: D.C.Srivatsava,J as His Lordship then was) in CA No.9988/00 in SCA No.9739/99 with CA Nos.10001 to 1006 of 2000. It is also pertinent to note that as per the interim order, dated 17.1.2000 passed in SCA 9379/99 and allied matters the State of Gujarat was directed to cause an inquiry to made regarding the allegations of malpractices committed at the examination in question and the report of the said inquiry was ordered to be placed before this court. Pursuant to said interim order inquiry was made through the office of Director, ACB, namely, Shri K.Chakravarty and submitted to the Addl.Chief Secretary, Home Dept, State of Gujarat and he also submitted report and comments which are placed before this court. The report of the Addl.Chief Secretary and the report of Director, ACB would be referred to as stated hereinafter. However, the conclusions of the Director, ACB in the said report are that in the absence of any documentary/oral evidence to corroborate the allegations of irregularities/illegalities crept in in the conduct of of written examination for recruitment of PSI the allegations are not substantiated. The conclusion of Addl.Chief Secretary of the Home Dept is that the petitioners do not have personal knowledge in the case where they have alleged irregularities, the allegations were unfounded. It is also stated in the report that most of the petitioners' information was hearse and the candidates who were unsuccessful in the examination had encouraged the petitioners to file petition and it was found that the allegation of illegalities in the written examination do not find any oral or documentary support. After the aforesaid inquiry report is produced there is no cogent material produced on record on behalf of the petitioner who challenged the selection process except making allegations. So far as the petitioners of SCA No.9379/99 are concerned no material worth the name is produced to show as to why the inquiry report should not accepted. So far as the petitioners of SCA No.9383/99 and 9506/99 are concerned affidavits have been filed by the petitioner No.4-Swami Hashmukh K. stating that he had the material for showing the absence of candidate bearing Seat No.3980, but inspite of the same he was not called during the course of inquiry. He has further stated that the supervisors during the course of examination were helping, and further it was stated by him that he was not knowing to any supervisor personally. So far as the candidate bearing seat No.3980 is concerned he has relied upon the newspaper report where he was shown as passed. However, in the inquiry report of Director, ACB at para (c) on internal page 2 it is found by him that the said candidate bearing Seat No.3980, namely, Baxumiya A.Malek was declared failed. It is also further alleged by one of the petitioners that the examination papers were leaked and if he had contributed Rs.6000/- the same e could have been provided to him. It is stated that the said aspect is not reflected in the inquiry report. Other one of the petitioners has reiterated same thing regarding candidate bearing seat No.3980. However, so far as leakage of paper is concerned in the inquiry report of the Director, ACB it is found by him at para 3 of the internal page 3 of the report that the alleged irregularities are hearsay and are by the persons after having been failed in the said examination. It is further found in the said report that one or two questions which could have been expected by the candidates prior to examination might have appeared in the question papers but that by itself can not lead to inference of leakage of question papers and becomes a basis for being relied upon in the absence of any other corroborative evidence. It does appear in the report that the answer books supplied to the candidates were not properly stitched, numbered on each page and stamped like the ones adopted by PSC and other competitive examinations. However, there is no material produced on record to show that on account of such shortcomings it resulted into material malpractice. I am inclined to take such view because the learned Advocate General appearing on behalf of the State has made a statement at the Bar that even as on today the complete record of the examination is maintained and the answer sheets, marks obtained by each candidate at the written test as well as finally granted at the time of selection can be identified. Other concerned petitioners who have challenged the selection process by making allegations of malpractice are more or less on the same and similar allegations and therefore it is not necessary to repeat the same.
29. Normally, when the allegations of malafides in conducting of examinations are made, in my view the court will consider the matter on the totality of the circumstances and if there is irregularity or malpractice committed in case of A, B or C candidate, naturally D, E and F candidates can not be made to suffer. In such circumstances, the test would be whether the degree or the quantum of malpractice which is brought on record before the court is such which would vitiate the whole selection process. The material produced before this court is such which is not sufficient to come to conclusion that the whole selection process is vitiated. In my view, the inquiry report by the Director, ACB and the Addl.Principal Secretary of the Home Department goes to show that the grievances of the present petitioners are found to have been not substantiated and against the same there is no cogent material produced by the petitioners to show that the degree of malpractice was such it has vitiated whole selection process. On behalf of the State, in the affidavit in reply filed by Mr.A.K.Bhargava, Addl.DGP(Admn) and Chairman of PSI Recruitment Board it is stated, interalia, that there were about 39417 candidates, papers were set, printed and packed in the presence of one of the members in the chamber of Shri Pramodkumar, the Board Member in order to prevent any leakage. It is further stated that thereafter there were despatched to the Dist.Hqrs with foolproof security measures. It is also stated that the conduct of examination was monitored by 19 senior officers. It is stated that 41 candidates which included the Police Constables were also caught copying and debarred. It has been stated that all the papers were collected and without any further delay they were brought to the Police Hqrs and to maintain secrecy and to cover the identity of the candidates it was proposed to give random computer numbers to each answer sheet. It is further stated that the evaluation was conducted at the central place under the supervision of one of the members of the Board or some other senior Police Officers nominated by the Board. At the end of evaluation marks were entered on the computer against random number only. After evaluation of answer books results were prepared and thereafter the same were declared and placed on the notice board at each concerned Dist.Hqr. Therefore, in view of the aforesaid, it can not be said that the petitioners have been able to demonstrate or that the material produced before the court is such on the basis of which conclusion can be arrived at that the degree of irregularities or alleged malpractice was such which has vitiated the result of about 40,000 candidates who appeared at the test.
30. Upon the request of Mr.Rathod, learned counsel appearing for some of the petitioners I had perused the report of the Dy.Director, ACB. However, in the said report also it is concluded by the said officer that there is no much substance in the allegations except that the answer sheets were not properly numbered, sealed and tagged. In any view, even if the said report of the Dy.Director of ACB is considered, it can not be said that the irregularities and illegalities and malpractices demonstrated in such a manner which would vitiate the whole selection process of about 40,000 candidates.
31. Learned counsel appearing on behalf of the petitioners challenging the selection process namely of conducting of written examination, interview, test etc have relied upon certain decisions of the Apex Court in the case of (i) Union Territory of Chandigarh vs Dilabgh Singh and others reported in AIR 1993 SC 796,(ii) Krishna Yadav & ors vs State of Haryana and others, reported in AIR 1994 SC 2166, (iii) Pritpal Singh vs State of Haryana and others reported in 94(5) SCC 695, (iv) Bihar Public Service Commission vs State of Bihar reported in AIR 1997 SC 2280 to contend that if there are gross irregularities and illegalities committed the whole selection deserves to be set aside and even while setting aside the select list principles of natural justice are not required to be followed so far as the candidates who have been selected and appointed are concerned. In the case of Union Territory of Chandigarh (supra) during the course of inquiry it was found that the selection was made in an unfair and ingenious manner and in the interview the marks were given either inflated to push up the candidates who had got poor marks in their examination performance. When the select list was cancelled by the Chandigarh administration the grievance made by the selectees was that they are not heard and the Apex Court held that hearing is not required in such circumstances. In the case of Krishna Yadav (supra) the Apex Court observed that in view of report of the CBI and after perusal of the report of the CBI upon the selection, the whole examination and the interview turned out to be farcial exhibiting base character of those who have been responsible for this sordid episode and therefore ultimately the Apex Court set aside the selection of Taxation Inspectors. In the case of Pritpal Singh (supra) after considering the material at paras 11 to 16 of the judgment, the apex court found that the selection made by the Board was not objective and fair and must be quashed along with appointments made pursuant to the selection. In the case of Union of Chandigarh and others (supra) there was a report of CBI that there are serious irregularities in conducting the examination and selection. Therefore the decision was taken to dismiss the services of those who were appointed by the said selection. Considering the said matter, the Apex Court held that if the selection is cancelled on such ground principles of natural justice are not required to be observed while terminating the services of the candidates who came to be appointed pursuant to the aforesaid illegal selection. In the case of Bihar Public Service Commission (supra) the Apex Court held that when the selection itself is bad in law on account of gross irregularities and illegalities committed by the State Subordinate Service Selection Board, no right of appointment flows from such select list. In my view, since in the present case by the material produced on record and in view of aforesaid discussion when it is found by the court that the degree or quantum of irregularities is not such on the basis of which it can be said that the whole selection process is vitiated and therefore the judgments upon which reliance is placed are of no help to the petitioners.
32. However, the contention raised by Mr.Manoj Popat appearing on behalf of petitioners of SCA No.9508/99 that not providing of proper information regarding physical requirement of chest deserves consideration. Admittedly, the State has no answer so far as the mistake crept in in the advertisement for not providing 84 CMs of chest on inflation. However, defence is raised that at the time of preliminary physical test it is clarified that the chest measurement should be not less than 84 CMs when fully inflated with minimum expansion of 5 CMs. It is further stated that in response to advertisement 41700 candidates applied and those not found fit were eliminated. Since the procedure for selection has taken place as per Rules and not as per the advertisement so far as the measurement of chest is concerned, in my view there is substantial compliance of rules. So far as selection is concerned, in normal circumstances, Mr.Popat would have been right in contending that the qualifications can not be relaxed and if it is a mistake crept in in the advertisement the authority ought to have re-advertised the post. As observed earlier, since such aspect is taken care as per statutory requirement of rules at the time of physical elimination test and except the petitioners of SCA No.9508/99 no other candidate has made any grievance of depriving of the opportunity for applying the post in question it is difficult to take the view that the whole selection is vitiated. At the same time, such petitioner has justifiable grievance that he has lost the opportunity to apply on account of mistake of the authority while giving advertisement and therefore in my view judicial discretion would demand that the petitioner of SCA No.9508/99 could be granted benefit of applying again when the next selection process is undertaken for the post of PSI without insisting for age limit and therefore it would be just and proper to direct the said authority to consider the case of the petitioners of SCA 9508/99 by way of giving age relaxation so that if he otherwise fulfills the other criteria the delay caused may not disentitle him to apply for the post. Therefore, in view of the aforesaid, challenge to the selection process undertaken for written test, physical endurance test, physical elimination test etc is vitiated, fails.
33. Before concluding the aforesaid point, in my view when it is found in the report of the Director, ACB that the answer books supplied to the candidates were not properly stitched or numbered on each page or stamped like the one adopted by the Service Commission in competitive examinations and further the functioning sought to be demonstrated of conducting of examinations by the Board is at Dist.Hqrs and such system can make room for malpractice. Further, the status of the Board is temporary and there is no permanent establishment and it does appear that the post of PSI, though may be of Cl.III cadre, holds an important post so far as maintenance of law and order and enforcement of provisions of IPC and other criminal laws read with the provisions of Cr.P.C. Under the circumstances, it would have been more better if the function of conducting examinations is assigned to Public Service Commission with a view to have more competitive and efficient hands from amongst eligible candidates and to have transparency in conducting examination for such an important post of PSI. It will be ultimately for the State to consider the matter and to take appropriate decision. However, I find it proper to leave the matter at that stage.
34. Concentrating upon the question of preparation of select list it appears that the select list is prepared as common merit list on the basis of marks obtained by the candidates finally.Initially, as observed earlier, the list was not operated on account of interim stay granted by this court in SCA No.9379/99 and other allied matters. Thereafter, as per the order dated 19.2.01 passed by this court (D.C.Srivastava,J) in CA No.9988/00 in SCA 9739/99 and other allied matters, the said interim order was vacated with clarification that the respondent No.1 can proceed to appoint the selected candidates in accordance with rules and such appointments would be subject to final decision and the result of group of petitions where the relief is prayed for quashing of whole selection process. It was also observed by the court that if the petitioners succeed and the examination is cancelled, the appointment of such candidates shall stand automatically terminated without any further orders from this court or without further orders from the Police Dept and if the petitions fail the appointments shall continue to be governed by the existing rules and regulations. It appears that thereafter the list came to be operated by the authority by issuing appointment orders to selectees upto Sl.No.188 and the other 44 candidates were not issued appointment order. In SCA Nos 2064/99 and 8968/01 which have been preferred by some of the persons whose names are included in the select list/waiting list this court (Coram: D.C.Srivastava,J) on 18.4.01 passed order directing to issue provisional appointment orders to remaining 44 candidates of the select list and it was observed that the provisional appointments shall be subject to final outcome of SCA No 2064/01 as well as SCA No.9737/99 and also writ petitions filed by newly added respondents and others. Further, on the basis of order, dated 18.4.01 passed in Spl.C.A.No.2064/01 this court (Coram: C.K.Buch,J) in Spl.C.A.No.5530/01 passed interim order, dated 16.10.01 whereby the direction was given for 20 candidates who were in waiting list. It has been submitted by Mr.Tanna that such candidates were sent for training as per the said order. In view of the aforesaid, it appears that the State Govt has issued provisional appointment orders to these 44 candidates, others and some of them are the petitioners of SCA No.2064/01. But when the matter was carried before the Division Bench in LPA No.349/1 against the order of the learned single Judge dated 18.4.01 the Division Bench of this court while passing order on 23.4.01 clarified that the petitioners of SCA No.2064/01 will not be entitled to argue at any point on the basis of equity that they have already been appointed and no adverse order be passed in future as their appointments are treated as purely tentative and adhoc subject to outcome of SCAs which are pending before learned single judge of this court. Subject to said clarification in the order the Division Bench did not interfere with the order passed by the learned single judge. Further 20 persons who have been sent for training pursuant to order, dated 16.10.01 in Spl.C.A.No.5530/01 stand on the same position.
35. It appears that the Board had prepared two list, one waiting list comprising of 232 candidates and the other list which was a waiting list for 22 candidates. The list which is prepared and which is operated pursuant to the aforesaid order upto Sl.No.188 and thereafter for 44 candidates more in all upto Sl.No.232 shows that the same is prepared strictly on the basis of merit and said list is comprising of all candidates belonging to general category as well as SC, ST and SEBC which is popularly known as Other Backward Class (OBC). The contention raised by Learned Counsels M/s Y.N.Oza, Girish Patel Upadhyay are that while preparing the select list if the candidates belonging to reserved category are otherwise required to be included in merit list and their names should be counted for the post reserved for general category. It is submitted that after including said persons in the general category who are found to have been meritorious at par with other general category candidates the list should have been prepared in such a manner that the candidates belonging to reserved category are given benefit of reservation by considering the left out candidates belonging to reserved category who are not included in general category. Whereas, the stand of the State Govt through Mr.S.N.Shelat, Ld.AG is that the reserved category candidates are included in the merit order and once the appointment is given to them on the basis of merit the seats reserved for backward class are exhausted and therefore the select list is correctly prepared and operated. Ld.Counsel Mr.Tanna appearing on behalf of the persons who have been given appointment provisionally after Sl.No.188 has mainly submitted that under no circumstances the reservation can exceed 50% of the posts and if the reserved class or backward class is allowed to have entry on the seats of general category candidates, the consequences would be that there will be additional candidates belonging to reserved category and in total such reservation will exceed 50%. Mr.Tanna also submitted that after the appointment even for the purpose of roster and for further promotions such thing would operation in the manner which would increase the quota of limit of 50%. Therefore, he submitted that the select list prepared should be maintained.
36. It appears that the State Govt has issued circular dated 29.1.2000 clarifying the benefit to be extended to reserved class.In the said circular it has been provided that if the candidates belonging to reserved category are selected on the basis of same standard/criteria which is fixed for the candidates belonging to general category they shall be treated as against the post for unreserved category and not against the reserved category. However, it is further stated that wherever the relaxation is made in selection for the candidates belonging to reserved category in (i) age limit, (ii) qualification and experience, (iii) attempt available to appear in the written examination, (iv) or other areas etc.which are relaxed in selection in comparison to the requirement for general category candidates then such selection made of SC/ST/SEBC would be treated as against reserved categories and such candidates shall not be available for consideration for unreserved seats. Therefore, there is no dispute on the point that the State Govt has taken such policy decision of considering the candidates against general category if the candidates belonging to reserved category is otherwise found in merit in comparison to merit of candidates belonging to general category. The contention raised by Mr.Oza, Mr.Patel and Mr.Upadhyay is that such relaxation must include the relaxation in eligibility criteria or relaxation of substantial in nature. Whereas, on behalf of the State Govt the Ld.AG Mr.Shelat as well as Mr.Tanna submitted that the relaxation in payment of fees while giving application was granted and the same is availed of by the reserved category candidates and hence it can be said that their appointment is on the reserved seat. Therefore, the only the thing which would be required to be considered is whether the relaxation in fees can be said to be falling in 4th category of such relaxation. There can not be any dispute on the point that the payment of fees was the mandatory requirement. Therefore, had the application fee not paid by the candidates belonging to general category the same would not be either accepted or rejected. Therefore, the relaxation is there in the fees which is obtained by the candidates belonging to reserved category. The aspect which is required to be considered is can such relaxation to be treated as relaxation in selection. In normal circumstances, the criteria for selection will be educational qualifications, the physical requirement, age limit, obtaining of marks in the examination, interview etc. Therefore, in my view the relaxation in examination fee is not such which would touch upon the merit of the candidate in selection. It may that a person who applies for the post initially on reserved category may not be aware about his own merit in comparison to the candidates belonging to general category but if he is otherwise eligible to be included while competing with the candidates belonging to general category he can be said to be a candidate entering into services on the nonreserved post and the fees if he has not paid can be collected subsequently by adding as one of the conditions in his appointment order. Such requirement of payment of fees though may be mandatory for appearing in the examination, can not be said to be a matter concerning to merit for selection. Therefore, though the word used is 'etc.' and such word is to make inclusive meaning, can not be read to such relaxation which is not touching the merit for selection.Therefore, I find that the stand of the State Govt of preparing the select list treating that since the candidates belonging to reserved category have taken benefit of relaxation in fees such candidates are to be treated against reserved post is without proper application of mind and appears to be arbitrary. I am inclined to take such a view because the attempt on the part of the court would be to achieve the object of upliftment of weaker section of the society as per Constitution of India without there being any compromise to the merit of the candidates selected.
37. If the relaxation in payment of fees is not considered as relaxation in the standard/criteria of selection in comparison to the general category candidates, the consequence would be that the State has to prepare the select list as per its own policy vide circular, dated 29.1.2000. There is no dispute on the point that the candidates belonging to reserved category who were otherwise meritorious in comparison to the candidates of general category are included in the select list and the said aspect is apparent from the data produced with the affidavit in reply filed by Mr.A.D.Chavda in CA No.5843/02 in SCA No.5179/02. All the candidates belonging to reserved category who are above 232 marks are included in the select list whereas in the waiting list the candidates having marks upto 273 are included. Further, in the statement at annexure III produced with the aforesaid affidavit shows that if the list is prepared by treating the meritorious candidates belonging to backward class in comparison to general category candidates all candidates belonging to OBC or SEBC category who are 42 in number and whose names are mentioned at annexure V belonging to general category shall be required to be excluded and those candidates who shall be required to be included in the list are all belonging to OBC category.
38. Mr.Oza as well as Mr.Patel and Mr.Upadhyay are right in contending that on one hand the stand of the State Govt is that fees relaxation can be treated as taking benefit of relaxation in selection, but inspite of the same in the matter of candidates belonging to S.T.category different treatment is given by the authority and it does appear that additional reservation is given to the candidates belonging to ST category even after their meritorious candidates (ST) are included in the list of general category or unreserved category. The same is possibly because of the Govt.Resolution, dated 29.1.2000. In any case, the same shows arbitrariness and nonapplication of mind by the authority while considering the similar case of candidates belonging to OBC category. 39. Much reliance is placed by Mr.Tanna, Ld.counsel for petitioners upon the decision of the Constitutional Bench of the Supreme Court in the case of Indra Sawhney vs Union of India and others reported in AIR 1993 SC 477 to contend that the reservation in any case should not exceed 50% and if the reserved category candidates or Backward Class is allowed to enter general category on the basis of merit consequently it may be in future they may claim benefit for further promotion from reserved category and the ultimate effect would be that number of employees in the set up shall exceed 50%. He has also relied upon the aforesaid decision of the Constitutional bench of the Apex Court to contend that the reserved category candidate can not be allowed to enter open merit or general seats so long as they do not abandon the reservation for claim on backward class. The contentions raised by Mr.Tanna do not detain me further because in the very judgment of the Constitutional Bench in the case of Indra Sawhney (supra) while indicating the limit for reservation should not exceed 50% at the end of para 94A the Constitutional Bench has observed as under:
'It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit, they will not be counted against the quota reserved for Scheduled Caste candidates.'
While answering various questions dealt with by the Apex Court in the aforesaid judgment at para 121 (6)(c) on the basis of observations made at para 96 of the said judgment it has been answered by the Constitutional Bench as under:
'(c) The rule of 50% should be applied to each year. It can not be related to the total strength of the class, category, service or cadre, as the case may be.'
In the present case, as it has formulated policy of the State Govt of considering the candidates belonging to reserved category, if they compete with other general category candidates and if they have not taken any benefit of relaxation in standard of selection. Therefore, aforesaid contentions raised by Mr.Tanna on the question of exceeding 50% reservation and on the question of allowing backward class candidates to enter the open merit even though they stood by merit with the general category candidates deserves to be rejected.
39. However, the reliance placed by Mr.Tanna upon the aforesaid judgment of the Constitutional Bench of the Apex Court in the case of Indra Sawhney(supra) for excluding the class of creamy layer from SEBC category deserves consideration. Mr.Patel, Mr.Oza and Mr.Upadhyay raised contention that so far as the clients of Mr.Tanna are concerned who have been provisionally appointed are insisting for the list prepared to be operated and there is no challenge to the list on the ground of not excluding the class in OBC category as that of creamy layer. When the matters are being heard, all this group of petitions are being heard simultaneously and therefore when the court considers the legality and validity of the select list prepared by the authority it would be unfair on the part of the petitioners who are representing the OBC category to contend that they must be given room for the appointment for the post of PSI even though the Constitutional Bench of the Apex Court as back as in the year 1993 has taken the view of excluding the creamy layer from taking benefits of reserved category candidates and even though it is the case of the State Govt through Ld.AG that the creamy layer must be excluded. However, the pertinent aspect is that on behalf of the State Govt Ld.AG has submitted interalia that before the appointment orders are issued the status of OBC candidates shall be verified. Mr.Tanna has made an attempt to contend that the creamy layer is a class which is required to be excluded from reserved category and not only from OBC. He further submitted that the said exercise on the part of the State was expected at the time when the applications are received and the process begins and it can not be at a stage where after selection, the appointment orders are to be issued. He therefore submitted that the whole selection process for reserved category candidates can be said to be vitiated.
40. In case of Indra Sawhney (supra) the Constitutional Bench at para 8A while summerising the discussion on questions III(C), III(D) and III(E) has observed as under: '(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Caste/Scheduled Tribes. (d)'Creamy Layer' can be and must be excluded.(e) It is not correct to say that the backward class contemplated by 16(4) is limited to the socially and educationally backward classes referred to in Articles 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness can not be applied to Scheduled Castes and Scheduled Tribes who indubitably fall within the expression 'backward class of citizens'. The accent in Article 16(4) appears to be on social backwardness. Of course, social, educational and economic backwardness are closely interwined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4).'
In view of the aforesaid Constitutional Bench decision of the Apex Court it does appear that the question of creamy layer and excluding the class of creamy layer was considered by the Apex Court vis-a-vis the class of Backward Class only. Mr.Tanna is not right in contending that in view of the judgment of Apex Court in the case of Indra Sawhney(supra) class of creamy layer is required to be excluded from SC/ST category also. Even otherwise also so far as SC/ST categories are concerned they are a separate class by themselves and their special status as that of Backward Class is different than that of other Backward Class. So far as SC/ST categories are concerned, Part XVI of the Constitution provides a separate procedure under special provisions of Articles 330 to 342 except Article 340 which provides for appointment of Commission to investigate into the conditions of Backward Classes. It may be that the definition of Article 16(4) of the Constitution of India is much wider than that of including SC/ST. Therefore, status of SC/ST once notified and identified by the President of India as per the Constitution stands on a higher benefits and privileges than that of OBC. The question as to whether provision can be made of excluding the class of creamy layer from the candidates belonging to SC/ST by suitable notifications of President of India or by any procedure known is kept open.
41. However, for the purpose of exclusion of creamy layer such is not the case for other backward class. Even it is an admitted position that the State has identified certain class of creamy layer for the purpose of excluding them from claiming benefit of reservation as per G.R dated 1.11.1995. Therefore, it is admitted position that the class of creamy layer is required to be excluded. So far as this aspect is concerned challenge or grievance is raised when the list is already prepared and was operated upto Sl.No.188. In the petitions being SCA No 2064/01 and other the prayers are to operate the list and to fill up the posts and the action of not giving appointment to the left out 44 candidates from the waiting list is challenged. It is true that on page 17 at ground (D) in SCA No.2064/01 one of the contentions raised is that the creamy layer amongst the backward class are not entitled for the benefit of reservation. However, it has been further stated at page 18 on behalf of the petitioners as under:
'The petitioners further submit that almost 90% of the candidates who have availed the benefit of reservation would have to be expunged from the select list if the State of Gujarat makes an inquiry as to whether they fall in creamy layer or not. Therefore, also in the humble submission of the present petitioners the impugned decision of the respondent authorities of not giving appointment to the present petitioners as well as in total 44 candidates whose names figure in the select list is an arbitrary decision which deserves to be struck down by the Honourable Court.'
Therefore, the aforesaid tenor of the contention raised in the petition is to exclude the creamy layer from taking the benefit of reserved category, but it is not the case of the petitioner of SCA 2064/01 represented by Mr.Tanna to totally scrap or to set aside the whole selection process and therefore the contention raised by Mr.Tanna is that since the exercise of excluding the creamy layer is not undertaken by the State at the entry point that whole selection process deserves to be set aside. At the same time, so far as the petitioners belonging to OBC category are concerned in substance the prayer is to direct the State Govt to set aside the select list prepared by the respondent authorities to the extent of not in conformity with the policy of GR dated 29.1.2000 and direct the respondents to prepare fresh select list. Therefore, merely because there is no prayer on behalf of the clients of Mr.Tanna that the select list be quashed, in my view, the contention raised on the point of creamy layer excluding them from OBC category of reserved class can not be rejected outright.
42. It does appear that with a view to have proper procedure and to eliminate or to rule out the possibility of taking benefit of reservation of OBC category by the candidates belonging to creamy layer the State ought to have implemented such policy at the entry point of selection and it would be unfair and unreasonable on the part of the State to contend that such steps for excluding the creamy layer would be undertaken when the appointment orders will be issued. The exclusion of creamy layer, in my view, is required to be made at the entry point only and such exercise if made at the entry point, would enable the State to assess the comparative merit of only eligible candidates belonging to OBC category other than creamy layer. However, even the petitioners have approached this Court at a stage when the list is already prepared and not only at that stage but at a further stage when the list was already operated upto Sl.No.188. Therefore, if the whole select list is set at naught on the point of not following the steps for excluding the creamy layer from the category of OBC it would result into not only wastage to public time but may also result into causing injury to the candidates who are not at all concerned to OBC and they are belonging to general category, SC or ST. Further, there were only 67 posts advertised for SEBC category, namely, OBC and the State had operated the list upto Sl.No.188 which included the selection in majority of general category and of SC/ST etc. The details submitted with the affidavit in reply filed by Mr.A.D.Chavda in CA No.5483/03 go to show that if the exercise of preparing the fresh select list as per resolution dated 9.5.2000 is undertaken more particularly annexure III shows that upto Sl.No.188 the merit of the general category candidates would end at 273 marks. AS observed earlier the candidates above 273 marks irrespective of the fact that whether belong to general category or reserved category are required to be considered in the quota of general category and therefore there is no question of excluding anyone even on the ground of creamy layer from such list to that extent. Therefore, if the select list to that extent which is prepared of general category candidates which may include meritorious candidates belonging to reserved category is set aside it may result into causing injustice to the candidates for no fault on their part though they are otherwise eligible as per merit.
43. Further so far as OBC category beyond the merit of general category is concerned nobody has been given appointment except in view of interim order passed in SCA No.2061/01 and Spl.C.A.No.5530/01 which shall be dealt with hereinafter. Therefore, when the State considers the matter for revising the select list after the seats are available for the reserved category of OBC the State should undertake the exercise of excluding the candidates belonging to creamy layer from OBC. Therefore, in my view considering the peculiar facts and circumstances of the case as referred to hereinabove the judicial discretion demands that the select list prepared of general category which includes candidates belong to all reserved category upto 273 marks should not be disturbed but thereafter before preparing the merit list of OBC candidates on the seats reserved for OBC the State should undertake the inquiry of excluding OBC belonging to creamy layer and thereafter the names of OBC candidates should be included in such select list.
44. An attempt was made on behalf of the petitioners of SCA No.2064/01 and others who have been given provisional appointments pursuant to the interim order passed by this court (Coram: D.C.Srivastava,J) as per order 18.4.01 to contend that the petitioners represented by Mr.Girish Patel and others have preferred the petitions for preparation of select list pursuant to Govt.Resolution, they are not joined as party and therefore no orders may be passed by the court without joining those 44 persons and others who will be affected by the outcome. In my view, such contention deserves to be rejected on the face of it in as much as while passing the order dated 18.4.01 the court had directed the respondents to issue provisional appointments to said 44 candidates of the said select list and such provisional appointments are made subject to final adjudication of the SCA No.2064/01 and others. Further as observed earlier in the LPA No.349/01 which arose from the interim order dated 18.4.01 in SCA No.2064/01 it was specifically observed by the Division Bench while clarifying the order of the learned single judge that such persons will not be entitled to argue at any point on the basis of equity that since they have already been appointed no adverse orders be passed in future. The Division Bench further observed that the appointments of such persons are to be treated as purely tentative and adhoc subject to final outcome of SCA pending before the learned single judge. Therefore, the court while passing the interim order for giving provisional appointments made such appointments subject to final adjudication of this group of petitions. Therefore, when the aforesaid 44 persons are given appointments pursuant to interim orders passed by this court on 18.4.01 and when it is expressly stated that such appointments shall be subject to final adjudication of this group of petitions it hardly lies in the mouth of such persons to say that they are not impleaded as party in the petitions preferred by the petitioners challenging the action of preparing the select list on the ground that it is not in accordance with the Govt.Resolution. As observed earlier, position of those who have been sent for training as per interim order in Spl.C.A.No.5530/01 can not be better than those who came to be appointed as per interim order in SCA No.2084/01. On the contrary, such persons were in waiting list and not on select list. Even otherwise also, the matter is notified simultaneously and such 44 persons and others who have been given provisional appointments pursuant to interim order of this court are fully aware of the proceedings. Even during the course of hearing of this group of petitions I have heard Mr.Tanna on the question of reservation, method of preparing the select list by including and excluding the reserved class and creamy layer part. Under no circumstances, it would be open to the clients represented by Mr.Tanna to contend that the select list can not be set at naught even for the purpose of OBC category unless they are joined as party. Even otherwise also, when the court finds even after considering the prayers of petitioners of SCA No.2064/01 and others that the Govt has not prepared the select list of the reserved category as per its own resolution dated 29.1.00 and when the petitioners of SCA No.2064/0-1 are heard before passing final order such contention deserves to be rejected in toto considering the present facts and circumstances of the case.
45. The aforesaid discussion takes me to examine further step regarding the fact that those 44 persons and others who have been given appointment pursuant to the interim orders passed by this court in SCA No.2064/01 and SCA No.5530/01. It is well settled that the inclusion of name in the select list does not create any enforceable right in favour of such persons. In the present case, as observed earlier, it is found that the select list so far as reserved category is concerned is not prepared in accordance with the State Govt's policy as per resolution, dated 29.1.2000. Therefore, such candidates who have been given appointment pursuant to the interim orders should make room for the appointment to the legally selected candidates. The details which have been produced together with the affidavit in CA No.5483/03 in SCA No.5179/02 and more particularly at annexure VI shows that 42 candidates shall be required to be excluded from the list and if the total marks scored by such candidates are seen it varies from 288 to 275 and in any case they are above 273 marks. It is also pertinent to note that when this court considered the matter for interim orders in SCA No.2064/01 with SCA No.8968/00 as well as while considering the matter for vacating the interim order passed in CA No.9988/00 in SCA No.9379/99 on 19.2.01 read with the order of the Division Bench in LPA observed that against 600 vacant posts of PSIs list prepared is of 232 successful candidates only. Further the Division Bench in its order observed that it would not be in public interest to allow the vacant posts to remain unfilled as that would seriously harm the interest of public service of such an important nature as PSI. Further, in the affidavit in reply on behalf of State as well as on behalf of Board it has also been stated at para 8 that 655 out of 1925 posts of PSIs were vacant as on 1.12.1998. The contention raised on behalf of the petitioners of SCA No.2064/01 represented by Mr.Tanna was that in view of this affidavit in reply coming on record the requisition for only 250 posts ought not to have been made. He further submitted that after 1999 till today further additional posts of PSI must have fallen vacant which may also be required to be filled up. Therefore, the contention was that the list may be allowed to be operated for further posts i.e. in addition to the posts advertised and left out persons from OBC can be considered for such posts even in case this court finds that the Govt has not correctly prepared the select list. He has alternatively submitted that in any event the petitioners who are already appointed can be accommodated from the list in such a manner that persons who have already been appointed pursuant to the interim orders in Spl.C.A.Nos 2084/01 and 5530/01 may not be required to be terminated. Ld.AG Mr.Shelat during the course of hearing has also stated before the court that it is true number of posts of PSI vacant are about 700 out of which 50% is required to be filled up by direct recruitment and Mr.Shelat further submitted that all the vacant posts of PSI are required to be filled up.
46. If the candidates whose names are included in the select list come for appointment beyond the number posts advertised, in normal circumstances, as per the settled law this court would not issue any mandamus giving direction to the authority to operate the select list to the posts advertised. However, additional circumstances in the present case are that the select list came to be prepared on account of the stand of the State Govt that the relaxation in fees would include taking benefit of relaxation in selection by the reserved category and which is now found by the court as observed earlier that such relaxation would not fall within the meaning of relaxation given to the candidates belonging to reserved category since it is not at all touching the eligibility criteria and merit. Further the State was not operating the select list possibly on account of interim orders passed in SCA No.9379/99 as well as order dated 19.2.01 in CA No.9988/00 and others and its confirmation thereof subject to clarification by Division Bench of this court dated 2.3.01 in LPA and further order dated 18.4.01 in SCA No.2064/01 with SCA No.8968/01 and its confirmation thereof by the Division Bench in LPA 349/01 such persons would not have been appointed by the State authorities. There is no dispute on the point that the aforesaid persons who came to be appointed pursuant to interim orders in Spl.C.A.Nos.2083/01 and 5530/01 have undergone the training successfully and have acquired experience of about more than 2 years for the post of PSI. As observed earlier there is no dispute on the point that even as on the date of advertisement the posts available of PSI in the State was 655 out of which 50% quota for direct recruitment is considered, the number of the same in any case would exceed 325 whereas the advertisement was given only for 250 posts. If the proportionate seats are considered as reserved that of general candidates and others in any case it will make room for further appointment of about 57 candidates. Even otherwise the statement showing the marks scored by these candidates shows that they are above 273 which is given for general category candidates. As observed earlier that the post of PSI is an important public post and no material is coming on record to show that though the number of posts available was about more than 325 for direct recruitment in the year 1998 why the number of posts advertised is only for 250 posts. It is true that normally even if the posts are available the court may not issue any mandamus to the authority to fill up the posts because the said aspect is for the executive to decide considering various circumstances including that of financial burden etc, but if there is no such ban on economy or anyother ban on the basis of any policy decision or otherwise of the State Govt on recruitment considering the importance of the post of PSI and more particularly touching the law and order, investigation of various crimes the State could have proceeded to fill up all the vacant posts of PSI. At the same time, candidates belonging to reserved category may also legitimately voice their grievance to operate the list upto Sl.No.325 or in any case in proportion to additional number of posts of general category even for reserved category. I am not expressing any final view on the said aspect but it will be for the concerned authority to consider the matter as observed earlier as well as other relevant circumstances which may be warranted in law for retention of persons who have been appointed pursuant to interim orders in Spl.C.A.Nos 2084/01 and 5530/01 in service as PSI. But, it does appear that in view of the aforesaid peculiar facts and circumstances of the present case, it is a case for recommending the retention of the aforesaid such candidates belonging to general category after filling up of 250 posts as per GR dated 29.1.00 and its interpretation thereof by this court as observed earlier.
47. In view of the aforesaid discussion and observations, all the petitions preferred by respective petitioners challenging the authority, method and manner of conducting examination, elimination test, physical endurance test and interview deserve to be dismissed except making observations as made earlier to consider the case for assigning such work of recruitment of PSIs to the GPSC and therefore subject to aforesaid observations rule in each such petition stands discharged.
48. So far as the petitions of the petitioners praying relief for preparation of select list as per the Govt.Resolution dated 29.1.2000 are concerned they are allowed with following directions:
(i) The respondent-authorities shall prepare fresh select list as per Govt resolution, dated 29.1.2000 by considering the candidates who applied in reserved category but are found meritorious in comparison to general category candidates as entitled to be included in the selection for the seats of general category. It will be open to the respondent authorities to collect fees from the concerned candidate who has availed of the benefit of relaxation of fees, but is selected in the order of merit of general candidates
(ii) The respondent-authorities shall also prepare the list of candidates belonging to reserved category after excluding the creamy layer candidates belonging to OBC as per the observations made by this court earlier in this judgment. Such list shall be prepared as per the interse merit and in accordance with G.R dated 29.1.2000.
(iii) Such exercise shall be undertaken within a period of one month from the date of receipt of writ of this court and if the respondent-authorities decide to fill up further posts of PSIs the list to be operated accordingly keeping in view the number of posts advertised.
(iv) If the decision is taken by the respondent authorities of filling up of 250 posts or to the extent of posts advertised and by way of implementing such decision the candidates belonging to general category whose names otherwise could not have been included in the select list are required to be terminated and decision shall also be taken simultaneously while considering the matter for implementing direction No.(iii).
In each of such petitions rule is made absolute accordingly to the aforesaid extent.
49. So far as the petitions of petitioners praying for operating the select list beyond 188 of the old list the said petitions deserve to be allowed only to the extent of recommending retention of said persons who are appointed after Sl.No.188 pursuant to interim order dated 18.4.01 in SCA No.2064/01 and order dated 16.10.01 in SCA No.5530/01 with clarification that such recommendation shall not create any right or interest in favour of such petitioners so as to create any hindrance or obstruction in the process of implementation of directions given in the petitions preferred for preparation of select list as per GR dated 29.1.00. However, it is clarified that the respondent authorities while considering the matter for retention of aforesaid such persons in service as PSIs shall take into consideration the observations made by this court earlier so far as they relate to making recommendations and such decision for considering the recommendations made by this court may be taken either simultaneously at the time of implementing the above referred directions given in the petition preferred for preparation of select list as per GR dated 29.1.2000 or subsequently thereafter but shall be taken within a period of two months from the date of receipt of writ of this court.
50. Subject to aforesaid observations and recommendations rule in each such petition is made absolute only to the aforesaid extent and for other reliefs each such petition shall stand dismissed.
51. All interim orders passed in this group of petitions, if any, shall stand vacated.
52. In view of the orders passed in main group of petitions and being disposed of finally, no further orders are required to be passed in the Civil Applications and hence all the CAs stand disposed of accordingly.
53. At this stage, Mr.Tanna, Ld.counsel appearing for those persons who were appointed pursuant to the interim orders passed by this court requests that since the question involved in this petition is pertaining to the inclusion of creamy layer with SC/ST and other constitutional points and other important questions on interpretation of certain aspects are there the operation be stayed to the extent of terminating the services of his clients.
54. In view of the above, it is directed that the operation and implementation of the judgment is not stayed in toto, but stayed to the extent that for a period of two months from today the authority shall not terminate the services of those persons who were appointed pursuant to the interim orders passed by this court in Special C.A.Nos 2064/01 and 5530/01.