Gidla Satyanarayana Vs. Union of India, Rep.by the Government of Puducherry Through the Inspector General of Police and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/953774
CourtChennai High Court
Decided OnNov-20-2012
Case NumberWrit Petition No.321 of 2012 and M.P.No.2 of 2012
JudgeELIPE DHARMA RAO & THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN
AppellantGidla Satyanarayana
RespondentUnion of India, Rep.by the Government of Puducherry Through the Inspector General of Police and Others
Advocates:For the Petitioner: V. Ajaykumar, Advocate. For the Respondent: R1 & R2, Mani Sundar Gopal, Spl. G.P. for Puducherry, R5 to R14 & R17 to R19, M/s. R. Karthikeyan & R. Bharanidharan, Advocates.
Excerpt:
(writ petition filed under article 226 of the constitution of india, praying to issue a writ of certiorarified mandamus, to call for the records of the 4th respondent in respect of o.a.no.227 of 2010, dated 2.11.2011 and to quash the same and consequently to direct the respondents to appoint the petitioner to the post of sub inspector of police with effect from the date on which the other candidates were appointed with all other consequential benefits, including arrears of wages, seniority etc. m.p.no.2 of 2012 has also been filed under article 226 of the constitution of india, praying to permit the petitioner to implead the proposed respondents as respondents 5 to 19 in the writ petition.) elipe dharma rao, j. the petitioner, working as constable and belonging to scheduled caste, has applied for the post of sub inspector of police, pursuant to the notification dated 15.12.2005 issued by the respondents 1 and 2 for filling up the notified ten vacancies of sub inspector of police. the written test was conducted on 14.7.2007. he participated in the selection process and was placed at serial no.35, based on the marks of 86 scored by him. however, he could not make it to the appointment as sub inspector of police. therefore, he filed o.a.no.227 of 2010 before the tribunal, praying to declare the appointment of the third respondent as illegal, invalid and consequently to direct the respondents 1 and 2 to appoint him (the petitioner) as sub inspector of police under the sc quota with effect from the date on which the 3rd respondent is appointed with all other consequential benefits, including arrears of wages and seniority. 2. his case is that once the respondents 1 and 2 have notified ten vacancies, they are bound to fill up only ten vacancies whereas they have filled up 20 vacancies to the post of sub inspector of police and even though several vacancies are available, the respondents 1 and 2 have not made any appointment from the present select list; that as per the government orders a select list has to be operated till the list candidate in the select list is appointed and on that basis also, according to the petitioner, he is entitled to get appointment in the existing vacancy; that the respondents 1 and 2 ought to have notified three vacancies under the sc category and one st vacancy in the s.t. category out of 20 vacancies but not even a single vacancy was reserved for sc category and the said notification itself is illegal and invalid; that without notification, the respondents have appointed two persons under the ex-serviceman quota namely, mr.venkatesh, who obtained 86 marks and one mr.k.ramesh, who is placed at sl.no.17; that the third respondent has applied for the post under the obc category by producing obc certificate and subsequently he filed a case stating that he has to be considered under the mbc category and the government considered his claim and so the original application was allowed even though he has not applied under the mbc category and even though there is no reservation made under the notification at all. 3. the respondents 1 and 2 have stiffly opposed the claim of the petitioner, by filing vivid counter affidavit. it is their contention that even though, at the outset ten vacancies were notified as 'general' category, subsequently, a press note was issued on 4.7.2007, owing to increase in the vacancies to 18, wherein they have also mentioned the post based roster as general=14; mbc=2; obc=1 and sc=1. according to them, the total sanctioned strength of sub inspector of police is 123 out of which 50% of the posts are for direct recruitment and 50% of posts are for recruitment by promotion and therefore, the direct recrtuitment quota comes to 61; that from 1997 to 2007, 9 sc posts were filled and there are other sc candiate in the 61 posts who have been selected in the general list and therefore, whenever there is a shortfall in the ration of 16% of sc candidates, the department has taken action to fill the shortfall vacancies earmarked to scheduled caste quota as per the said memorandum. with regard to the section of third respondent, the respondents 1 and 2 have stated that one thiru venkatesan selected under the ex-serviceman cum obc category was placed at sl.no.17 in the selection list and he has not been offered the appointment to the post of sub inspector of police, since three o.as.669/2007, 498/2007 and 515/2007 were filed by the individuals namely kirtty, gokulakrishnan and santhi respectively and the tribunal had directed the department in separate interim orders to keep vacant one post of sub inspector of police, till the disposal of the above o.as. after disposal of the said o.as., offer of appointment was issued to thiru venkatesan; further, thiru ramesh has been issued offer of appointment to the ost of sub inspector of police in the place of vacancy caused by thiru gopalakrishnan, general category at sl.no.15 in the selection list, since he expressed unwillingness to join the post; that the original application no.669/2007 filed by the third respondent c.kirtty, praying to issue offer of appointment under the mbc category, was allowed by the tribunal, directing the department to issue order of appointment within one month and aggrieved over the same, the department had filed w.p.no.9449 of 2010, which was dismissed by this court on 30.4.2010, further directing the department to comply with the order of the tribunal. 4. the tribunal has dismissed the said original application observing that if the applicant is aggrieved by any irregularity in the process of selection, he ought to have challenged the select list making all the candidates as respondents. the tribunal also observed that in the absence of an specific violation of roster points being established, the tribunal was unable to give any particular direction in that regard. aggrieved, the petitioner has come forward to file this writ petition. 5. along with the writ petition, the petitioner has also filed m.p.no.1 of 2012, praying to direct the respondents 1 and 2 to keep one post of sub inspector of police vacant, pending disposal of the writ petition. and, by the order dated 2.4.2012, since it has been asserted by the learned counsel for the petitioner that vacancies are available in the post of sub inspector of police, this court has issued a direction to the respondent authorities to keep one post vacant, till the disposal of the writ petition. 6. subsequently, the petitioner has also come out with m.p.no.2 of 2012, praying to implead all the selected candidates as party respondents to these writ proceedings. 7. we heard the learned counsel appearing on either side. 8. from the materials placed before us, we are able to see that the respondents 1 and 2 have not properly followed the roster, deviating and derailing themselves from their own precedents. in the departmental promotion committee held on 14.3.1991, while selecting seven general candidates and one scheduled caste candidate for the post of sub inspector, names of three general candidates and one scheduled caste candidate (the petitioner herein) were kept in reserve list. but, the petitioner was not given appointment. in the meeting of the recruitment committee held on 4.6.1994, for selecting ten candidates for the posts of sub inspector of police by direct recruitment, seven posts are earmarked for general candidates, two for scheduled caste candidates and one for ex-serviceman. but, since the one and only sc candidate (mr.a.subramanian pc.1711) got qualified on merit and thus got appointment under merit list, both the two reserved vacancies of s.c. are not filled up due to ban on de-reservation of reserved s.c.vacancies in direct recruitment. in the selection conducted on 23.1.1996 and 24.1.1996 also, out of six vacancies, three posts are earmarked for general category and three posts are earmarked for scheduled caste. even from the memorandum dated 22.5.2004, available at page no.10 of the typed set of papers filed by the petitioner, it is seen that out of the 19 vacancies filled up for the post of sub inspector of police, five candidates at sl.nos.5,8,17,18 and 19 are belonging to scheduled caste. but, in the present impugned selections, no vacancy was earmarked for any reserved category candidate, in the original notification issued for ten vacancies, though subsequently, by a press note, they have mentioned the roster position, while increasing the number of posts to be filled up to 18. 9. it is to be mentioned that under g.o.ms.no.21, home department, dated 18.5.2010, 67 more posts of sub inspector of police were created. but, nowhere in this g.o., it has been indicated as to what was the sanctioned strength as on that day, before and after creation of these 67 posts. 10. as per the materials available on record, the sanctioned strength of sub inspector of police in puducherry as on 1.1.2012 is 248, out of which 39 posts are vacant. therefore, a presumption would arise that prior to the addition of these 67 posts, i.e. upto 18.5.2010, the sanctioned strength of sub inspector of police is 181. since, it is even the case of the respondents 1 and 2 that 50% of the posts are meant for direct recruitment and 50% is meant for recruitment on promotion, applying the 16% reservation, the total required s.c. strength is 14. even though it is the case of the respondents 1 and 2 that before addition of 67 posts, the sanctioned strength is only 123 (out of which 61 posts work out to 50% by direct recruitment), nothing has been placed before us to appreciate this aspect. when the material on record, as discussed supra, would clearly establish that the present cadre strength is 248, it is within every prudent man's knowledge that before addition of 67 posts, the sanctioned strength must be 181. 11. while that being the case and when it is the specific case of the respondents 1 and 2 themselves that nine vacancies have been filled up with s.c.candidates, undoubtedly, as has been rightly argued on the part of the petitioner, rest of the five vacancies need to be filled up with the scheduled caste candidate, strictly observing the roster points. therefore, we are unable to agree with the contentions urged on behalf of the respondents 1 and 2 that they have strictly followed the rule of reservation and the roster position. 12. it is also to be mentioned that the prayer of the petitioner to declare the selection of the third respondent cannot be acceeded to, in view of the fact that the third respondent got appointed pursuant to a legal battle upto the level of this court in w.p.no.9449 of 2010, dated 30.4.2010, which has attained finality. 13. though the petitioner has come forward with a petition in m.p.no.2 of 2012, praying to implead all the selected candidates (probably to overcome the observations of the tribunal in this regard), considering the fact that the selected candidates are in service from 2007 onwards and that there are many vacancies in the cadre and that the petitioner could very well be accommodated, we do not propose to set aside the entire selection, even though, as discussed supra, the respondents 1 and 2 have not followed the rule of reservation and roster correctly. therefore, to meet the ends of justice, we direct the respondents 1 and 2 to appoint the petitioner as sub inspector of police as against a sc vacancy on and from the date when the third respondent was appointed. if, for this purpose, the respondents 1 and 2 find any difficulty, they are directed to create even a supernumerary post and adjust it as against the newly sanctioned strength and accordingly, re-arrive at the seniority list. this direction is necessitated in view of the fact that even though, as an interim measure, a direction was issued by this court on 2.4.2012, to keep one post vacant, it has been submitted on the part of the respondents 1 and 2 that all the 18 posts notified vide notification dated 15.10.2005 and press note dated 2.2.2007 have been filled up on 14.7.2007; 30.9.2009, 9.2.2010 and 7.7.2010. however, applying the principle of 'no work, no pay', the petitioner will not be entitled to any backwages in the cadre of sub inspector of police. the entire process shall be completed by the respondents 1 and 2 within eight weeks from the date of receipt of a copy of this order. this writ petition is ordered accordingly. no costs. consequently, m.p.no.2 of 2012 is closed.
Judgment:

(Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records of the 4th respondent in respect of O.A.No.227 of 2010, dated 2.11.2011 and to quash the same and consequently to direct the respondents to appoint the petitioner to the post of Sub Inspector of Police with effect from the date on which the other candidates were appointed with all other consequential benefits, including arrears of wages, seniority etc.

M.P.No.2 of 2012 has also been filed under Article 226 of the Constitution of India, praying to permit the petitioner to implead the proposed respondents as respondents 5 to 19 in the writ petition.)

ELIPE DHARMA RAO, J.

The petitioner, working as constable and belonging to Scheduled Caste, has applied for the post of Sub Inspector of Police, pursuant to the Notification dated 15.12.2005 issued by the respondents 1 and 2 for filling up the notified ten vacancies of Sub Inspector of Police. The written test was conducted on 14.7.2007. He participated in the selection process and was placed at Serial No.35, based on the marks of 86 scored by him. However, he could not make it to the appointment as Sub Inspector of Police. Therefore, he filed O.A.No.227 of 2010 before the Tribunal, praying to declare the appointment of the third respondent as illegal, invalid and consequently to direct the respondents 1 and 2 to appoint him (the petitioner) as Sub Inspector of Police under the SC quota with effect from the date on which the 3rd respondent is appointed with all other consequential benefits, including arrears of wages and seniority.

2. His case is that once the respondents 1 and 2 have notified ten vacancies, they are bound to fill up only ten vacancies whereas they have filled up 20 vacancies to the post of Sub Inspector of Police and even though several vacancies are available, the respondents 1 and 2 have not made any appointment from the present select list; that as per the government orders a select list has to be operated till the list candidate in the select list is appointed and on that basis also, according to the petitioner, he is entitled to get appointment in the existing vacancy; that the respondents 1 and 2 ought to have notified three vacancies under the SC category and one ST vacancy in the S.T. category out of 20 vacancies but not even a single vacancy was reserved for SC category and the said notification itself is illegal and invalid; that without notification, the respondents have appointed two persons under the Ex-serviceman quota namely, Mr.Venkatesh, who obtained 86 marks and one Mr.K.Ramesh, who is placed at Sl.No.17; that the third respondent has applied for the post under the OBC category by producing OBC certificate and subsequently he filed a case stating that he has to be considered under the MBC category and the Government considered his claim and so the Original Application was allowed even though he has not applied under the MBC category and even though there is no reservation made under the notification at all.

3. The respondents 1 and 2 have stiffly opposed the claim of the petitioner, by filing vivid counter affidavit. It is their contention that even though, at the outset ten vacancies were notified as 'general' category, subsequently, a press note was issued on 4.7.2007, owing to increase in the vacancies to 18, wherein they have also mentioned the post based roster as General=14; MBC=2; OBC=1 and SC=1. According to them, the total sanctioned strength of Sub Inspector of Police is 123 out of which 50% of the posts are for direct recruitment and 50% of posts are for recruitment by promotion and therefore, the direct recrtuitment quota comes to 61; that from 1997 to 2007, 9 SC posts were filled and there are other SC candiate in the 61 posts who have been selected in the general list and therefore, whenever there is a shortfall in the ration of 16% of SC candidates, the department has taken action to fill the shortfall vacancies earmarked to scheduled caste quota as per the said memorandum. With regard to the section of third respondent, the respondents 1 and 2 have stated that one Thiru Venkatesan selected under the Ex-serviceman cum OBC category was placed at Sl.No.17 in the selection list and he has not been offered the appointment to the post of Sub Inspector of Police, since three O.As.669/2007, 498/2007 and 515/2007 were filed by the individuals namely Kirtty, Gokulakrishnan and Santhi respectively and the Tribunal had directed the Department in separate interim orders to keep vacant one post of Sub Inspector of Police, till the disposal of the above O.As. After disposal of the said O.As., offer of appointment was issued to Thiru Venkatesan; further, Thiru Ramesh has been issued offer of appointment to the ost of Sub Inspector of Police in the place of vacancy caused by Thiru Gopalakrishnan, General Category at Sl.No.15 in the selection list, since he expressed unwillingness to join the post; that the Original Application No.669/2007 filed by the third respondent C.Kirtty, praying to issue offer of appointment under the MBC category, was allowed by the Tribunal, directing the Department to issue order of appointment within one month and aggrieved over the same, the Department had filed W.P.No.9449 of 2010, which was dismissed by this Court on 30.4.2010, further directing the Department to comply with the order of the Tribunal.

4. The Tribunal has dismissed the said Original Application observing that if the applicant is aggrieved by any irregularity in the process of selection, he ought to have challenged the select list making all the candidates as respondents. The Tribunal also observed that in the absence of an specific violation of roster points being established, the Tribunal was unable to give any particular direction in that regard. Aggrieved, the petitioner has come forward to file this writ petition.

5. Along with the writ petition, the petitioner has also filed M.P.No.1 of 2012, praying to direct the respondents 1 and 2 to keep one post of Sub Inspector of Police vacant, pending disposal of the writ petition. And, by the order dated 2.4.2012, since it has been asserted by the learned counsel for the petitioner that vacancies are available in the post of Sub Inspector of Police, this Court has issued a direction to the respondent authorities to keep one post vacant, till the disposal of the writ petition.

6. Subsequently, the petitioner has also come out with M.P.No.2 of 2012, praying to implead all the selected candidates as party respondents to these writ proceedings.

7. We heard the learned counsel appearing on either side.

8. From the materials placed before us, we are able to see that the respondents 1 and 2 have not properly followed the roster, deviating and derailing themselves from their own precedents. In the Departmental Promotion Committee held on 14.3.1991, while selecting seven general candidates and one scheduled caste candidate for the post of Sub Inspector, names of three general candidates and one scheduled caste candidate (the petitioner herein) were kept in reserve list. But, the petitioner was not given appointment. In the meeting of the recruitment committee held on 4.6.1994, for selecting ten candidates for the posts of Sub Inspector of police by direct recruitment, seven posts are earmarked for general candidates, two for scheduled caste candidates and one for ex-serviceman. But, since the one and only SC candidate (Mr.A.Subramanian PC.1711) got qualified on merit and thus got appointment under merit list, both the two reserved vacancies of S.C. are not filled up due to ban on de-reservation of reserved S.C.vacancies in direct recruitment. In the selection conducted on 23.1.1996 and 24.1.1996 also, out of six vacancies, three posts are earmarked for general category and three posts are earmarked for scheduled caste. Even from the Memorandum dated 22.5.2004, available at page No.10 of the typed set of papers filed by the petitioner, it is seen that out of the 19 vacancies filled up for the post of Sub Inspector of Police, five candidates at sl.Nos.5,8,17,18 and 19 are belonging to Scheduled Caste. But, in the present impugned selections, no vacancy was earmarked for any reserved category candidate, in the original notification issued for ten vacancies, though subsequently, by a press note, they have mentioned the roster position, while increasing the number of posts to be filled up to 18.

9. It is to be mentioned that under G.O.Ms.No.21, Home Department, dated 18.5.2010, 67 more posts of sub inspector of police were created. But, nowhere in this G.O., it has been indicated as to what was the sanctioned strength as on that day, before and after creation of these 67 posts.

10. As per the materials available on record, the sanctioned strength of Sub Inspector of Police in Puducherry as on 1.1.2012 is 248, out of which 39 posts are vacant. Therefore, a presumption would arise that prior to the addition of these 67 posts, i.e. upto 18.5.2010, the sanctioned strength of Sub Inspector of Police is 181. Since, it is even the case of the respondents 1 and 2 that 50% of the posts are meant for direct recruitment and 50% is meant for recruitment on promotion, applying the 16% reservation, the total required S.C. strength is 14. Even though it is the case of the respondents 1 and 2 that before addition of 67 posts, the sanctioned strength is only 123 (out of which 61 posts work out to 50% by direct recruitment), nothing has been placed before us to appreciate this aspect. When the material on record, as discussed supra, would clearly establish that the present cadre strength is 248, it is within every prudent man's knowledge that before addition of 67 posts, the sanctioned strength must be 181.

11. While that being the case and when it is the specific case of the respondents 1 and 2 themselves that nine vacancies have been filled up with S.C.candidates, undoubtedly, as has been rightly argued on the part of the petitioner, rest of the five vacancies need to be filled up with the Scheduled Caste candidate, strictly observing the roster points. Therefore, we are unable to agree with the contentions urged on behalf of the respondents 1 and 2 that they have strictly followed the rule of reservation and the roster position.

12. It is also to be mentioned that the prayer of the petitioner to declare the selection of the third respondent cannot be acceeded to, in view of the fact that the third respondent got appointed pursuant to a legal battle upto the level of this Court in W.P.No.9449 of 2010, dated 30.4.2010, which has attained finality.

13. Though the petitioner has come forward with a petition in M.P.No.2 of 2012, praying to implead all the selected candidates (probably to overcome the observations of the Tribunal in this regard), considering the fact that the selected candidates are in service from 2007 onwards and that there are many vacancies in the cadre and that the petitioner could very well be accommodated, we do not propose to set aside the entire selection, even though, as discussed supra, the respondents 1 and 2 have not followed the rule of reservation and roster correctly. Therefore, to meet the ends of justice, we direct the respondents 1 and 2 to appoint the petitioner as Sub Inspector of Police as against a SC vacancy on and from the date when the third respondent was appointed. If, for this purpose, the respondents 1 and 2 find any difficulty, they are directed to create even a supernumerary post and adjust it as against the newly sanctioned strength and accordingly, re-arrive at the seniority list. This direction is necessitated in view of the fact that even though, as an interim measure, a direction was issued by this Court on 2.4.2012, to keep one post vacant, it has been submitted on the part of the respondents 1 and 2 that all the 18 posts notified vide notification dated 15.10.2005 and press note dated 2.2.2007 have been filled up on 14.7.2007; 30.9.2009, 9.2.2010 and 7.7.2010. However, applying the principle of 'no work, no pay', the petitioner will not be entitled to any backwages in the cadre of Sub Inspector of Police. The entire process shall be completed by the respondents 1 and 2 within eight weeks from the date of receipt of a copy of this order.

This writ petition is ordered accordingly. No costs. Consequently, M.P.No.2 of 2012 is closed.