BRAHMBHATT GIRISHKUMAR JETHALAL v. STATE OF GUJARAT & Ors.

reason or death or resignation, etc., then, the select list is first operated and the appointments are given. In the facts of the present case, four candidates, including the present petitioners, were given appointments from the waiting list as only 158 candidates from the select list accepted the appointments. Therefore, the waiting list was operated and the petitioners were given the appointments. It has also been contended that the recruitment process has been undertaken for 189 posts and there is no justification in cancellation of the appointments and reverting the petitioners once they have passed the examinations, undergone the training and after completion of the training, they are given postings as Police Sub Inspectors. Special Civil Application Nos.7975/2008, 7976/2008, 8115/2008 & 8595/2008

4. The petitioners, who have been working as Head Constables in different parts of State of Gujarat, have challenged the impugned order by which their selection to the post of Police Sub Inspectors SCA/7922/2008 JUDGMENT (Unarmed Branch, Class-III) is cancelled without affording an opportunity of hearing. As stated above, pursuant to the applications invited for filling up 189 posts of Police Sub Inspector, the petitioners applied for the same and appeared in the competitive examination and successfully cleared the said examination. On successful completion of the examination, the petitioners have also appeared and cleared the physical test and oral interview. Thereafter, a select list of 165 candidates and waiting list of 23 candidates was prepared. Out of 165 candidates, appointments were given to 162 candidates on 28th May, 2007 and the petitioners are in the waiting list and four candidates from the waiting list were also given appointments. The petitioners have challenged the impugned notification cancelling the waiting list and also de-selection of the present petitioners without affording an opportunity of hearing on various grounds set out in detail in the petitions inter alia that there was no justification in including the names of the petitioners in the waiting list despite the fact that there were vacancies as per the requisition. It has been contended that total number of posts were 189, however, the select list of 165 candidates was prepared and in fact, appointments have been offered to only 162 candidates, out of which some were dropped out or had not joined and the waiting list was made operative and accordingly, four candidates from the waiting list have also been given appointments (Petitioners of Special Civil Application SCA/7922/2008 JUDGMENT Nos.7922 to 7924 and 8042 of 2008). It has been contended that the respondents ought not to have passed the impugned order which would adversely affect the petitioners and their right for the appointment to the post of Police Sub-Inspector. It has been also contended that the impugned action of the respondents is arbitrary and in violation of the principles of natural justice. When the petitioners have passed the examination, the names of the petitioners ought to have been included in the select list instead of the waiting list. Therefore, the petitioners are required to be treated as selected candidates for the post of Police Sub Inspectors and the order cancelling the waiting list is not justified. It has also been contended that if the waiting list was prepared by the respondents in violation of the rules, then, in that case, the entire recruitment process would be illegal and contrary to the rules and therefore, the entire selection and appointments made pursuant to such recruitment process has to be struck down rather than cancelling only the waiting list. Special Civil Application No.8042 of 2008

5. The petitioner, who has been working as Unarmed Police Sub Inspector, has challenged the order of respondent Nos.2 and 4 on the ground that it is arbitrary and illegal. It has also been contended that the petitioner has participated in the recruitment process of 189 posts of Police Sub Inspector, has appeared in the competitive examination and SCA/7922/2008 JUDGMENT has been selected and placed at Serial No.2 in the waiting list. It has been contended that though he has been placed at Serial No.2 in the waiting list and some of the candidates in the select list could not be appointed, the petitioner and other three candidates in the waiting list have been appointed to the post of Unarmed Police Sub Inspectors. It has also been contended that he has passed the competitive examination, also undergone the training and has completed the training in December-2007 and has been given posting as Police Sub Inspector. It has been contended that having passed the examination, completed the training and having worked for five months as Police Sub Inspector, the impugned order passed by respondent No.4 cancelling the waiting list could not have been passed and therefore, the consequential order passed by respondent No.2 would also be bad and illegal. The said orders are challenged on the same grounds as narrated in Special Civil Application Nos.7922 to 7924 of 2008, emphasising that the petitioner having appeared in the competitive examination, cleared the training and also given the posting, the said appointment could not have been treated as cancelled. It has been emphasised that the recruitment was for 189 posts of Police Sub Inspectors, however, the select list was prepared for only 165 candidates and as 165 posts were not filled up for various reasons, the waiting list was operated. It has been also contended that if the waiting list would not have operated, the posts would have remained SCA/7922/2008 JUDGMENT vacant. It has also been contended that this was intra departmental selection process, where after selection of the candidates, the select list has been prepared and as some candidates had not joined or appointments were not given to them, the waiting list was made operative. It has been contended that the respondents had properly verified the credentials of the candidates and even though few candidates, who have not been given appointments, have been selected, their names have not figured in the select list and therefore, the petitioner, who is shown in the waiting list, would have been, in fact, in the select list. Therefore, it has been contended that the impugned action of cancelling the waiting list/appointment of the petitioner is arbitrary and illegal. It has also been contended that as per the order dated 28th May, 2007, the petitioner and other candidates had been appointed and though the word used is promotion, in fact, it is the case of appointment. It has been contended that the recruitment rules clearly provide and use the word appointment by selection process. Therefore, it has been contended that the impugned action is arbitrary and illegal.

6. Affidavit-in-reply has been filed by respondent No.2, Additional Director General of Police (Administration) and affidavit-in- reply has also been filed on behalf of respondent No.3, i.e. Secretary, Gujarat Subordinate Services Selection Board in Special Civil Application SCA/7922/2008 JUDGMENT No.7922 of 2008. In the affidavit in reply filed by respondent No.2, it has been contended that it is not in dispute that the special competitive examinations were held by the Gujarat Subordinate Services Selection Board for filling up the posts, as stated above. It has been narrated in detail as to how the process started on the basis of the requisition sent. Therefore, as per the notification dated 27th April, 2007, the final selection list of 165 candidates and waiting list of 23 candidates were published by respondent No.3. It has been stated that as per the requisition sent to the Board by the Director General of Police, 73 posts were to be filled up from Scheduled Tribe candidates, however, only 49 candidates have been declared successful in the examination. Hence, total selection list of 165 candidates, i.e. 116 general candidates and 49 S.T. Candidates, was prepared. It has been also stated that it is important to note that as stated in the affidavit filed on behalf of respondent No.3 as per the Gujarat Police Sub Inspector (Unarmed Branch) Special Competitive Examination Rules, 2004 dated 14th September, 2004, respondent No.3 was not supposed to prepare the waiting list. However, respondent No.3 has inadvertently prepared the waiting list. It has been stated that on scrutinizing the notification dated 27th April, 2007 published by the Board, respondent No.2 found that 3 candidates out of 116 candidates belonging to General Category were such, against whom the departmental inquiry was pending, i.e. merit list nos.12, 25 and 81, SCA/7922/2008 JUDGMENT and therefore, they could not be offered appointments. Similarly, the candidate at Serial No.80 was over aged. Thus, in all, four candidates were not found to be eligible for the appointment. Therefore, the petitioner in Special Civil Application No.7922 of 2008, who was at Serial No.1, petitioner of Special Civil Application No.7923 of 2008 who was at Serial No.3 and petitioner of Special Civil Application No.7924 of 2008 who was at Serial No.4 of the waiting list were given the appointments. It has been therefore contended that respondent No.2 had initially issued an order dated 28th May, 2007 for appointment of 162 candidates, i.e. 112 from general category and 46 from S.T. category. Further, it has been stated that respondent No.2 has issued a letter dated 11th June, 2007, seeking approval for appointment of remaining 19 out of 23 candidates and respondent No.1 has informed on 2nd July, 2007 that the proposal cannot be accepted. Thereafter, on 14 th September, 2007, respondent No.2 again requested to give permission for appointment of 19 remaining candidates in the waiting list and the General Administration Department had also been requested to consider the question for grant of permission. However, while examining the proposal of the Home Department, the General Administration Department found that the waiting list prepared by the Board is ultra vires because there is no provision or standing instructions for preparing the waiting list of the candidates in the case of selection through special SCA/7922/2008 JUDGMENT competitive examination popularly known as semi direct recruitment. Therefore, as there is no provision for preparation of the waiting list in the Gujarat Police Sub Inspector (Unarmed Branch) Special Competitive Examination Rules, 2004, the waiting list was required to be treated as void ab initio. Therefore, ad hoc appointments given by respondent No.2 to four candidates from the waiting list were required to be cancelled and accordingly, as per the letter dated 19th May, 2008 from the General Administration Department, the decision has been taken and on that basis, the appointment came to be cancelled and respondent No.2 passed the impugned order dated 20th May, 2008.

7. Mr. K. B. Pujara, learned Counsel for the petitioners in Special Civil Application No.7922 of 208, submitted that the Court may consider the challenge to the decision in the petitions in light of the Police Sub Inspector (Unarmed Branch, Class III) Recruitment Rules, 2003 and as amended from time to time, and also Special Competitive Examination Rules, 2004. For that purpose, he referred to Annexure-A at page 15 and emphasised the different modes by contending that it provides for direct selection on the basis of the competitive examination, meaning thereby, it would be open for all and another mode is promotion. However, referring to Clause (b) of Rule 2 of the Recruitment Rules, he emphasised that it provides for special selection SCA/7922/2008 JUDGMENT from amongst departmental candidates, who are working as head constables (Unarmed Branch, Class III) or Assistant Sub Inspector (Unarmed Branch, Class III) having completed five years' of continuous service in the Gujarat State Police subject to passing the special competitive examination held by the Selection Board constituted under Rule 165 of the Gujarat Police Manual, 1975. He submitted that the Recruitment Rules itself provide that the departmental candidates can be appointed by undergoing the recruitment process as provided under the Rules. Mr. Pujara again referred to various rules, including Rule 6, which provides that the candidate appointed by direct selection shall be on probation for a period of one year after successful completion of his training. He referred to Rule 7 which provides that the candidate appointed by special selection holding the competitive examination shall have to pass prescribed post training examination. It was submitted that as per these rules, even after participating in the competitive examination, i.e. written test and oral interview, and having passed those examinations, the candidate is further required to undergo the post training examination on completion of the training. He has also referred to further amendment in the rule at page 20. He pointedly referred to the Amended Gujarat Police Sub Inspector (Unarmed Branch, Class III), Special Competitive Examination Rules, 2004 and submitted that it provides for how the examinations shall be conducted and how the SCA/7922/2008 JUDGMENT results are required to be declared by the Board. Mr. Pujara referred to the communication dated 21st/22nd June, 2004, which is written by the Home Department to the Director General of Police with regard to filling up of the vacancies. It was submitted that this is a requisition for 189 posts of Police Sub Inspector and it has been suggested that for filling up such posts, necessary requisition may be sent to the Gujarat Subordinate Services Selection Board. It also clarified that the competitive examination will have to be conducted as per the Government Resolution dated 27th July, 1999 and the Selection Board will make the selection accordingly. It is on the basis of this communication that further communication dated 19th July, 2004 at Annexure-C has been addressed by the Director General of Police to the Secretary, Gujarat Subordinate Services Selection Board. Referring to page 25, which is produced with this communication with regard to the number of vacancies and the category, Mr. Pujara emphasised that the ratio of direct recruitment and promotion has been specified as 5:4:1, total strength is 1901 and the number of vacant posts are 235. He submitted that out of these posts, as stated on page 27 of Annexure-C, the requisition was for 189 vacancies, out of which 73 were reserved for Scheduled Tribe and 116 for General candidates. He also referred to Annexure-F at page 38, which is the order passed by respondent No.2 dated 28th May, 2007, by which the petitioners have been given the SCA/7922/2008 JUDGMENT appointments (very same order with annexures is also produced as Annexure-III to the affidavit of Director General of Police) and submitted that there is a reference to the recruitment process and special selection from amongst the candidates working in the department and though it refers promotion in this order, in fact, it is appointment. Mr. Pujara submitted that as per this order, the selected candidates were directed to remain present and join for refresher course, as provided in the Police Manual, 1975 (Rules 61 and 164) with effect from 4 th June, 2007. It also makes it clear that they have to present themselves at Gujarat Police Academy on 3rd June, 2004. Mr. Pujara also submitted that on the basis of this communication, the petitioners, who were selected and were in the waiting list, were given the appointments when the appointments could not be offered to four candidates for various reasons. Therefore, pursuant thereto, they have joined at the police academy, undergone the training and thereafter, they have been given the postings.

7.1 Mr. Pujara submitted that once the petitioners have undergone the recruitment process, have passed the written test, oral interview and thereafter, also successfully completed the training, on the basis of which they have been given the postings also, whether the appointment can be cancelled by stroke of pen on the alleged ground that the waiting list has been prepared erroneously as it has not been SCA/7922/2008 JUDGMENT provided for in the Recruitment Rules. He also referred to various details, including number of post/break up of the post, i.e. 116 for General Category and remaining 73 for Scheduled Tribe Category. He also emphasised that in fact, the select list has been prepared for 165 candidates only and out of them, there are 49 S. T. candidates. He therefore, referred to various details which he had called for under the Right to Information Act, 2005. He submitted that once the appointment has been offered, it creates a right in favour of the petitioners, which cannot be taken away abruptly without giving any opportunity of hearing. He submitted that even after preparation of the select list or undertaking the exercise of recruitment if the appointments are not made, perhaps the petitioners may not have any right, but, once having passed the examination and thereafter, having undergone the training as required pursuant to the order passed by the Director General of Police at the Police Academy and when the postings have also been made, the appointment cannot be cancelled. He submitted that the impugned order is not only arbitrary and violative of Article 19, but, it is also in gross violation of the principles of natural justice for which he referred to the judgement in the case of Bina Pani (supra).

7.2 He also referred to the judgement of the Honourable Apex Court in the case of Shekhar Ghosh vs. Union of India, reported in SCA/7922/2008 JUDGMENT (2007) 1 SCC 331 and submitted that as observed, by the Honourable Apex Court, the principles of natural justice are required to be followed and right of hearing has to be given where such decision involves civil consequences. Mr. Pujara referred to the facts of that case and submitted that the said case was of reversion to the lower post on the basis of rectification of mistake and still the Honourable Apex Court made the observations.

7.3 He also referred to and relied upon the judgement of the Honourable Apex Court in the case of Babita Prasad & Ors. vs. State of Bihar & Ors., reported in 1993 Supp. (3) SCC 268 and submitted that as observed, if the action is proved to be arbitrary, then, notwithstanding any clarification, it would offend Article 14. Mr. Pujara submitted that the impugned order has been passed behind the back of the petitioner without giving any opportunity of hearing knowing fully well that the postings have been also offered to the petitioners after they had undergone the recruitment process and also the training thereafter. He submitted that even in that case though it has been observed that mere fact that a candidate had undergone and completed the training, would not confer any right, still however, when the appointment has been made, it has been observed that appointment of those candidates would be saved as it has been and he pointedly drawn the attention to the SCA/7922/2008 JUDGMENT observations made in paragraph 31 as under: “It was fair exercise of discretion on the part of the Government not to oust those who had already been appointed and were serving because some equities had come into existence of such persons. Their appointments had also been saved by the judgement in Anil Kumar case. Equity reforms and moderates the rigour and hardness of the law. State action was fair and bona fide to respect the equities in favour of the appointed candidates. Such course of action cannot be considered as violative of Article 14 of the Constitution. If action of the State can be shown to be arbitrary, then, notwithstanding any classification, it would offend Article 14 and can be struck down. The appointed and non-appointed teachers formed separate and distinct classes.” He has also submitted that once the petitioners have passed the competitive examination and on the basis thereof, having undergone the training and on successful completion of the training, when they are given postings also, the impugned action of cancellation of their appointments and postings is bad and illegal. It was strenuously submitted that the doctrine of promissory estoppel would apply as the Government is estopped from denying the benefit to the petitioners, particularly without affording an opportunity of representation or hearing. It was submitted that, therefore, the impugned decision is bad, illegal and in violation of the rules of natural justice. In support of his submission, he has referred to and relied upon few judgements of the Honourable Apex Court on the principle of promissory estoppel. He has also referred to the judgement of the Honourable Apex Court in the case of Kuldeep Singh vs. Govt. of NCT of Delhi, reported in AIR 2006 SC SCA/7922/2008 JUDGMENT 2652 to emphasis his submission about the doctrine of legitimate expectation.

7.4 He has also referred to and relied upon the judgement of the Honourable Apex Court in the case of Madan Lal & Ors. vs. State of Jammu & Kashmir & Ors., reported in AIR 1995 SC 1088 and submitted that though it has been stated that the impugned orders have been passed cancelling the appointment on the ground that there is no provision for making the waiting list qua the departmental candidates who have been selected by undergoing the selection process which the recruitment rules itself provide, inasmuch as the Recruitment Rules itself provide for special selection from amongst the departmental candidates. Therefore, again referring to the Recruitment Rules and more particularly, Clause (b) of Rule 2, Mr. Pujara submitted that special selection provides for selection of such candidates who have completed five years' of continuous service and have passed the special competitive examination held by the Board. Therefore, he submitted that the idea behind preparing the waiting list is that the authorities may not have to undertake the exercise of recruitment process again. He submitted that normally, the select list is prepared for the candidates and waiting list is also prepared so that in the event if some candidates may not join, the appointment can be given by operating the waiting list and therefore, if SCA/7922/2008 JUDGMENT the waiting list for the general candidates is prepared and the departmental candidates, who have participated in the recruitment process by way of special selection, have been given the appointments, there is no reason to cancel such appointments only on the ground that there is no provision for preparing the waiting list. It was submitted that the Examination Rules provide for the manner in which the examinations will have to be conducted and the result would have to be declared and therefore, it has reference to the normal practise, which is followed. He also referred to the observations made in paragraph 21 and submitted that in this case also, the requisition was sent for 189 posts and in fact, the select list has been prepared for 165 posts, being 116 General Candidates and 49 S.T. Candidates. Mr. Pujara, therefore, submitted that out of these lesser number of vacancies than the requisition, the petitioners, who have been selected and appointed after undergoing the entire process, could not have been reverted inasmuch as the selection process would be for 189 posts as per the requisition, whereas the select list prepared is only for 165 posts and again when the select list is prepared only for the lesser number of posts and if other persons who are selected and kept in the waiting list are offered appointments, then, there is no illegality. He tried to submit that if the select list may have been prepared for 189 posts and thereafter, the waiting list was made operative, meaning thereby, exceeding the actual number of posts for SCA/7922/2008 JUDGMENT which the requisition was sent, then such appointments perhaps can be said to be illegal or irregular. Therefore, he emphasised that in the facts of the present case, number of requisition was for 189 posts and admittedly, the select list has been prepared for 165 candidates only, i.e. much less, and again out of 165 candidates, the break up has been given as 116 General candidates and 49 S.T. candidates. He submitted that even the reservation aspect has also been taken care of. He also referred to the pleadings and submitted that the main purpose for which these appointments are cancelled, which is now sought to be again explained by way of an affidavit, is that it would be contrary to the reservation policy inasmuch as against 189 posts, S.T. candidates would be 73. Therefore, when the appointments of the candidates in the waiting list are made, it is sought to be contended that it would be against the reserved vacancies of S.T. candidates. Mr. Pujara again strenuously submitted that this is a mischief and is deliberately misreading the policy inasmuch as against 189 posts, S.T. candidates would be 73 and general candidates would be 116 and as against that, the select list is prepared for 165 posts only, out of which 116 posts belong to general category and remaining 49 belong to S.T. category. He submitted that in fact, even on the last occasion also, posts for the quota of S.T. candidates were carried further as sufficient number of candidates were not available and it is in these circumstances, when in the present SCA/7922/2008 JUDGMENT recruitment process also, if the sufficient number of S. T. candidates eligible and qualified are not available, the vacancies could be filled in for which there is no prohibition.

7.5 Mr. Pujara also referred to and relied upon the judgement of this Court in the case of Jay Gujarat Pachhat Varg Vikas Manch & Anr. vs. State of Gujarat & Anr., reported in (2002) 2 GLH 459, and pointedly emphasised the observations made by the Division Bench in paragraph 5 as under: “........... if 10 posts are reserved for S.C. candidates, all the 10 posts of S.C. have to be filled by S.C. candidates, whether they are selected or not and if the suitable candidates are not available against the reserved vacancies such vacancies cannot be allowed to remain unfilled indefinitely and, therefore, the grievance as has been raised cannot be said to be a legitimate grievance.”

7.6 He also referred to and relied upon a judgement of the Honourable Apex Court in the case of Jai Narain Ram vs. State of U.P & Ors., reported in AIR 1996 SC 703 and submitted that the facts were similar to the present case. He submitted that the Honourable Apex Court has observed in this case that the candidates, who were selected, had not joined the services and the appointments were denied to other qualified candidates standing in the merit list on the ground that there was no requisition by the State Government to the service commission for preparation of the waiting list and the Honourable Apex Court has SCA/7922/2008 JUDGMENT observed that such attitude is improper and directed the Commission to recommend and directed the State Government to give the appointments. He pointedly referred to the observations made in paragraph 7 as under: Right to seek appointment to a post under Article 14 read with Article 16(1) and (4) is a constitutional duty to requisition the P.S.C. to recommend the next qualified person to the posts reserved for scheduled castes. Under these circumstances, the denial of appointment to the appellant and three others above him is unconstitutional.” Mr. Pujara, therefore, submitted that in the facts of the present case, at least qua the petitioners of Special Civil Application Nos.7922 to 7924 of 2008, who have been given the appointments and postings, the impugned orders are illegal.

8. Mr. Nikhil S. Kariel, learned Advocate appearing for the petitioner in Special Civil Application No.8042 of 2008, has adopted the submissions made by Mr. Kaushik Pujara, learned Counsel for the petitioners. However, he has supplemented the submissions by contending that there is no illegality and there is no lack of bona fide. He has submitted that when the Recruitment Rules or the Examination Rules do not provide for preparation of the waiting list, it does not also prohibit preparation of the waiting list and therefore, there is no embargo. He submitted that there is no embargo in preparing the waiting list and on the basis of the waiting list prepared, if the SCA/7922/2008 JUDGMENT appointments are made, it cannot be said to be illegal. Referring to and relying upon paragraph 25 of the judgement of the Honourable Apex Court in the case of Kuldeep Singh v. Govt. of NCT of Delhi, reported in AIR 2006 SC 2652, he submitted that as observed in this judgement, the petitioner will have legitimate expectation to get the appointment on the higher post. He, therefore, submitted that the doctrine of legitimate expectation would be attracted and referring to the observation made in the said judgement, he submitted that unless there is any public interest, the appointment cannot be cancelled. He submitted that it is not in the larger public interest that the appointment of the petitioner should be cancelled and he should be reverted to his original post. He also submitted that the discretion vested with the Government also requires to be exercised reasonably and not capriciously. He submitted that the appointment, which is even otherwise just, valid and made after completing the entire procedure, cannot be cancelled only on the ground that there is no provision for preparation of the waiting list in the Recruitment Rules. Again he emphasised that if there is no express provision in the Recruitment Rules, there is no express embargo also and in any case, even if the waiting list is prepared, it would create legitimate expectation for the petitioner and the same cannot be taken away.

8.1 Mr. Kariel also submitted that in any case, once such an SCA/7922/2008 JUDGMENT equity has been created, it cannot be taken away as the impugned decision will have civil consequences because the petitioner would be reverted, his salary would be reduced and it will have future effect also. He, therefore, submitted that such orders could not have been passed without affording any opportunity of hearing. He submitted that it is not in dispute that no opportunity of hearing is given before cancelling the order and therefore, such orders passed in violation of the rules of natural justice without providing any opportunity of hearing deserve to be quashed and set aside.

9. Mr. Virat Popat, learned Counsel appearing for the petitioners in Special Civil Application Nos.7975/2008, 7976/2008, 8115/2008 and 8595/2008, also adopted the submissions advanced by Mr. Kaushik Pujara, learned Counsel for the petitioners. However, he supplemented by contending that it is not simply a mistake which is sought to be corrected. He again referred to the details and break up of the posts and submitted that in fact, the requisition was sent for 189 posts and the select list prepared is for 165 posts only and therefore, the petitioners of these petitions ought not to have been considered in the waiting list, but, ought to have been considered in the select list as canvassed by Mr. Pujara. It was submitted that when the candidates from the reserved category are not available even on the second occasion, the SCA/7922/2008 JUDGMENT posts could be filled up by the general candidates and in support of this submission, he has referred to and relied upon the judgement of the Honourable Apex Court in the case of K. N. Sreenivasan vs. Flag Officer Commanding-in-Chief, Headquarters, Kochi & Ors., reported in (1996) 7 SCC 73, and emphasised the observation as under: “We are unable to understand the reasoning of the respondents. If no individual from the reserved category is available, then the procedure to be followed is to convert the post into a non-reserved post and offer the same to the candidates from the non-reserved category and carry forward the post for the reserved category for which it was meant if the carry forward rule exists and so permits.” He submitted that there are no rules with regard to reservation or reservation policy produced on record and it does not justify or suggest as to how the posts are required to be carried forward and upto what period and therefore, the submission that appointments by the general candidate cannot be made against the post meant for the reserved category, is an afterthought. He also submitted that in the Recruitment Rules, there is no specific provision and therefore, if there is no provision in the Recruitment Rules, then, on that ground, it is not open for the respondents to contend that the post is not required to be filled up. He emphasised that if there is no provision in the Recruitment Rules for preparation of the waiting list, then, at the same time, it does not put any embargo and if the waiting list is prepared, it does not become illegal. He submitted that if the respondents refer to the SCA/7922/2008 JUDGMENT Recruitment Rules in support of their contention that there is no provision for preparation of the waiting list, then, they should also refer to the Recruitment Rules, which do not provide for any such carry forward system when the question of not filling the vacancies against reserved categories arises. He referred to and relied upon the judgement of the Honourable Apex Court in the case of R. S. Mittal vs. Union of India, reported in (1995) 2 SCALE 233 and emphasised the observation that “although a person on the select panel has no vested right to be appointed, the appointing authority cannot ignore the select panel or on its whims decline to make the appointment, and declining to appoint persons from the panel was unjustified.”

9.1 He also referred to and relied upon the judgements of the Honourable Apex Court in the cases of Umesh Chandra Shukla Vs. Union of India, reported in AIR 1985 SC 1351, K. H. Siraj vs. High Court of Kerala & Ors., reported in (2006) 6 SCC 395, Vijay Singh Charak vs. Union of India & Ors., reported in (2007) 9 SCC 743 and P. S. Mahal & Ors. vs. Union of India & Ors. reported in (1984) 4 SCC

10. Mr. Suneet Shah, learned Government Pleader for the respondent-State, has submitted that before he elaborately makes his SCA/7922/2008 JUDGMENT submissions, he would formulate the following points: a) Whether any vested right is created in favour of the petitioners? If yes, whether such right is subject to policy? b) c) Doctrine of Estoppel. If there is no vested right for the appointment, whether the petitioners can claim appointments on the basis of the waiting list prepared erroneously? d) What are the consequences and effect as regards reservation and quota in respect of general candidates and scheduled tribe candidates? Mr. Shah referred to the rules and submitted that the rules do not provide for preparing of any waiting list. Therefore, if the rules do not provide for preparation of any waiting list and in spite of that if the waiting list is prepared contrary to the rules and appointments are given erroneously, then, the Government is justified in correcting its mistake and passing the impugned orders. He emphasised that the petitioners cannot seek appointments or indulgence of the Court for a direction to give them appointments on the basis of the waiting list which is prepared erroneously and which is not provided for in the Recruitment Rules. For that purpose, he referred to the Recruitment Rules in the form of SCA/7922/2008 JUDGMENT Government Resolution dated 4th September, 2004, at page 67 and also referred to the Gujarat Police Sub Inspector Special Competitive Examination Rules in the form of Government Resolution dated 14th September, 2004 and referring to both these Rules, he submitted that there is no such rule or provision either in the Recruitment Rules or in the Examination Rules for preparing the waiting list. He again referred to the pleadings and annexures and submitted that if the departmental candidates are given to participate in the recruitment process by a special competitive examination and there is a special mode for selection of candidates under Clause (b) of Rule 2 of the Recruitment Rules, it would not suggest that there could be a waiting list for them so that in future they can get the appointments. He submitted that normally, the chances of departmental candidates not joining in spite of their selection are very rare and that is the reason for not preparing the waiting list for the departmental candidates though it could be for the general candidates inasmuch as when large number of vacancies are to be filled up and if the general candidates who are selected may not join, the candidates who are in the waiting list can be offered the appointment and the entire exercise may not have to be done again. However, that is not the case in the present case as the number of posts are limited and posts for the departmental candidates are also very limited. He, therefore, again emphasised that the departmental candidates, who have SCA/7922/2008 JUDGMENT by special selection applied in the competitive examination, cannot seek the appointment and therefore, the chances of their not joining are very less and there is no rule or provision for preparing the waiting list for the departmental candidates. He submitted that if that is the consideration with the Government, for which no provision of law has been made, can it be said to be illegal and whether the Court would interfere as a judicial review of such policy.

10.1 In support of his contentions, Mr. Shah referred to and relied upon a judgement of the Honourable Apex Court in the case of Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in 2007 (1) SCC 408. He emphasised the observations made by the Honourable Apex Court in this judgement and pointedly referred to the following observations: “.......The rules of recruitment cannot be relaxed and the court/tribunal cannot direct regularisation of temporary appointees de hors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily – rated employee) or payment of regular salaries to them. Orders for creation of posts, appointment on these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The courts must exercise judicial restraint in this connection, and not encroach into the executive or legislative domain. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situations can be justified, but, resorting to it readily and frequently, as has lately been happening, is not SCA/7922/2008 JUDGMENT only unconstitutional, it is also fraught with grave peril for the judiciary.” He also further emphasised that the observations in the judgement of the Honourable Apex Court has to be read in context of the facts and it would not be precedent inasmuch as the principles of law which are laid down have to be appreciated in a given set of facts and he pointedly referred to the observations as under: “No doubt, in some decisions the Supreme Court has directed regularisation of temporary or ad hoc employees but it is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law, in which case, it is not a precedent. For instance, the Supreme Court often directs appointment of someone or regularisation of a temporary employee or payment of salary, etc. without laying down any principle of law. Such directions are to be treated as having been given under Article 142 of the Constitution. This is often done on humanitarian considerations, but this will not operate as a precedent binding on the High Court.”

10.2 Similarly, he also referred to and relied upon the judgement of the Honourable Apex Court in the case of Post Master General Kolkata & Ors. vs. Tutu Das (Dutta), reported in (2007) 5 SCC 317. He emphasised the observations made by the Honourable Apex Court that the appointments contrary to the recruitment rules cannot be made and emphasised the observation as under: “.... Indisputably, the situation has completely changed in view of a large number of decisions rendered by the Supreme SCA/7922/2008 JUDGMENT Court in the last 15 years or so. It was felt that no appointment should be made contrary to the statutory provisions governing recruitment or the rules framed in that behalf under a statute or Article 309 proviso of the Constitution. The equality clause contained in Articles 14 and 16 of the Constitution must be given primacy. No policy decision can be taken in terms of Article 77 or Article 162 of the Constitution which would run contrary to the constitutional or statutory schemes. ..............” He also referred to and relied upon the judgement of the Honourable Apex Court in the case of Directorate of Film Festivals & Ors. vs. Gaurav Ashwin Jain & Ors. reported in (2007) 4 SCC 737 and submitted that the scope of judicial review and interference by the Courts is discussed in the said judgement and observations have been made that the Court would examine the legality and propriety and not soundness of the policy. Referring to paragraph 16 of the said judgement, he emphasised about the limited scope of the judicial review.

10.3 Mr. Shah referred to the draft amendment given by the petitioners and pointedly referring to the Recruitment Rules, he submitted that the Recruitment Rules and its amendment from time to time do not provide for preparation of the waiting list. Similarly, the Rules regarding the special competitive examination also do not provide for preparation of the waiting list. He also referred to the circular dated 20th February, 1998 which is with regard to preparation of the waiting list of the candidates who have passed GPSC examination and submitted SCA/7922/2008 JUDGMENT that the purpose of preparation of the waiting list has considered. However, in case of the present recruitment, which is for limited 189 posts, the petitioners, who appeared as departmental candidates by way of special selection as per the Recruitment Rules, cannot claim the appointment merely based on preparation of the waiting list as normally the chances of departmental candidates not joining would not arise and therefore, either of the Rules do not provide for preparation of the waiting list. Mr. Shah strenuously submitted that the Court may appreciate that it is in these circumstances when there is no provision for preparing the waiting list and yet the waiting list is prepared by inadvertence, persons like the petitioners cannot claim any appointment or any right on the basis of such waiting list. He further submitted that some of the petitioners in Special Civil Application Nos.7922 of 2008 to 7924 of 2008, who have undergone the training at the Gujarat Police Academy after successfully passing the written test and oral interview and have been given postings, also cannot claim any right merely because they have undergone the training and on the basis thereof, they are offered postings erroneously. Mr. Shah submitted that something, which is void ab initio, cannot be continued any longer and it has to be rectified. He submitted that if the appointments or posts are offered inadvertently on the basis of the waiting list prepared by mistake, no right can be claimed. SCA/7922/2008 JUDGMENT

10.4 Mr. Shah next submitted that the submissions with regard to the principle of estoppel are also baseless and the petitioners cannot claim any benefit on the ground of promissory estoppel. It was submitted that the doctrine of estoppel would not be attracted or come into play merely because the waiting list is prepared as no promise has been made or no such promise has been held out. It was strenuously submitted that if a mistake is made, then, no right is created in favour of the persons like the petitioners and therefore, the claim cannot be made on the ground of estoppel. In support of this submission, he referred to and relied upon a judgement of the Honourable Apex Court in the case of Union of India vs. S. R. Dhingra & Ors., reported in 2008(2) SCC 229. Similarly, Mr. Shah submitted that even if the principle of estoppel is applied or invoked, at the most it could be applied to the appointments which have been given irregularly, which can be regularised but not the illegal appointment and illegality cannot be continued. He submitted that if the appointment is void ab initio or illegal, the order can be passed by cancelling such appointments by the Government to correct the mistake at any time. In support of his submission, he has referred to and relied upon the judgement of this Court in the case of R. P. Yadav vs. District Superintendent of Police, Bharuch & Ors., reported in 2003 (2) GLR 1617. SCA/7922/2008 JUDGMENT

10.5 Emphasising upon the fact that though there is no provision in the Recruitment Rules or Examination Rules, the waiting list is prepared by mistake, it was submitted that the said mistake is corrected on the basis of which no right even on the ground of estoppel can be claimed. Mr. Shah also submitted that the Court will be slow and the scope of judicial review would also be limited. It was strenuously submitted that there is no challenge to the Government Resolution and there is no question of going into the legality and validity of the Government Resolutions and the Recruitment Rules as they stand do not provide for preparation of the waiting list and therefore, the Court may consider this aspect and the appointments which have been given by mistake are required to be cancelled. He submitted that no right can be claimed by the petitioners and the appointments are required to be made in accordance with the Recruitment Rules. He submitted that the appointments of the petitioners are for the public posts and it has to be in accordance with the Recruitment Rules and when the Recruitment Rules itself do not provide for preparation of the waiting list and yet on the basis thereof, if the appointments are made contrary to the Recruitment Rules, then, the Court must not permit or allow the same. He, in support of his submissions, relied upon the judgement of the Honourable Apex Court in the case of National Fertilizers Ltd. vs. SCA/7922/2008 JUDGMENT Somvir Singh, reported in (2006) 5 SCC 493 and vehemently referred to the observations made in this judgement in paragraph 18 as under: “Regularisation, furthermore, is not a mode of appointment. If appointment is made without following the rules, the same being a nullity the question of confirmation of an employee upon the expiry of the purported period of probation would not arise. ...” ... ... ... Again, referring to the observations in this paragraph, it was submitted that even if the persons had worked for long time, it did not give any right of regularisation in their favour. Therefore, it was submitted that if the appointment is made in violation of the rules and contrary to the provisions in the Recruitment Rules, it would be void or illegal and therefore, it cannot be permitted to be continued.

10.6 Mr. Shah again referred to and relied upon the judgement of the Honourable Apex Court in the case of Punjab Water Supply & Sewerage Board vs. Ranjodh Singh & Ors., reported in (2007) 2 SCC 491, and submitted that as observed in this judgement, the statutory bodies are bound to apply the recruitment rules laid down under the statutory rules. Referring to the observations made in this judgement, he emphasised that in this case also, the recruitment rules under Article 309 of the Constitution of India were made and appointments were not as per the policy or recruitment rules and therefore, the same were held to be illegal and valid. He pointedly referred to the observations as under: SCA/7922/2008 JUDGMENT “Once it is held that the terms and conditions of service including the recruitment of employees were to be governed either by the statutory rules or rules framed under the proviso to Article 309 of the Constitution, it must necessarily be held that any policy decision adopted by the State in exercise of its jurisdiction under Article 162 of the Constitution would be illegal and without jurisdiction. The High Court unfortunately did not address itself to these questions.

10.7 Mr. Shah referred to and relied upon the judgement of the Honourable Apex Court in the case of State of Manipur & Ors. vs. Y. Token Singh & Ors., reported in (2007) 5 SCC 65 and submitted that as observed in this judgement also, while making the appointments procedure has to be followed and the appointments made without following the established procedure would be bad and illegal and therefore, the appointments could be cancelled. He also emphasised that, as observed in this judgement, if such appointments made are cancelled, the principles of natural justice are not violated and such candidates have no right to continue in the service and therefore, they cannot invoke the discretionary jurisdiction under Article 226 of the Constitution of India.

11. Mr. K. B. Pujara, learned Counsel for the petitioners, in the rejoinder, again referred to the Recruitment Rules and the Examination Rules. He emphasised that initially the requisition was for 189 posts, being 116 for general candidates and 73 for S.T. candidates. However, as SCA/7922/2008 JUDGMENT against 73 S.T. candidates, only 49 S.T. candidates, who were qualified, were available and therefore, the select list was prepared for 165 candidates as against the requisition of 189 posts. Therefore, he submitted that though the requisition was for 189 posts, the list could not have been prepared for 165 posts only and if for whatever reasons, the select list was prepared for 165 posts, the persons in the waiting list for the remaining 24 posts could be said to have been selected and were to be treated as in the select list. It was submitted that if the number of posts or appointments exceeded the total number of requisition, one cannot claim any right, but, when the requisition was for the posts more than the select list prepared and waiting list is prepared particularly for the direct recruit, there is no reason why there cannot be a waiting list for the departmental candidates, who have not only been promoted as per the Recruitment Rules by a special competitive examination, but, have also undergone the exercise of written test, oral interview and on successfully passing the training, postings have also been given, and therefore, the Government cannot now say that it was a mistake which is now sought to be corrected. Mr. Pujara submitted that the judgement relied upon with regard to correction of mistake or cancellation of appointments was a case of fake appointments given based on the forged or illegal documents. He submitted that in the facts of the present case, there is no fault on the part of the petitioners. It is not even the case of SCA/7922/2008 JUDGMENT the respondents that the petitioners have submitted any wrong details or have not cleared necessary written test and oral interview. He submitted that once after passing through the process of recruitment and also successfully completing the training, on the basis of which subsequently postings have also been given to the petitioners, the doctrine of promissory estoppel will be attracted. He submitted that if without any fault on the part of the petitioners, they are appointed on the posts after undergoing the process of recruitment, then, the Government cannot be permitted to raise such a contention that it was a mistake on their part. He submitted that the appointments are sought to be cancelled only on the ground that there is no provision for preparing the waiting list, though as a matter of fact, normally the waiting list is prepared to the extent of 10 or 20 posts, which have not been advertised or for which requisition has not been made. Mr. Pujara submitted that it is also not disputed that the waiting list is prepared for the purpose of direct selection so that the Government may not have to undertake the same exercise again if some of the candidates do not join. Therefore, emphasising on this aspect, he submitted that merely because the names of the petitioners, who participated in the competitive examination and undergone the entire selection process and having successfully completed even the training after the appointments, are figuring in the waiting list, it cannot be cancelled on the ground that there is no SCA/7922/2008 JUDGMENT provision for preparation of the waiting list. He again emphasised that the main submission that the waiting list for the departmental candidates is not to be prepared is again arbitrary and discriminatory as if out of the departmental candidates, appointments could not be made by operating the select list, they can be given the appointments. He also submitted that while preparing the select list, it was very much clear that the entire exercise was for the departmental candidates by conducting competitive examination so that they can be directly selected if found competent and in spite of the select list, even in the present case, there are examples where appointments could not be given to the persons, who are selected and whose names are figuring in the select list, for various reasons like, as admittedly stated qua four persons, that there were reservations by the Government for not making the appointments though they are in the select list. He submitted that it is in these circumstances that the select list is required to be operated further and persons like the petitioners, who have also simultaneously undergone the process of recruitment and who are in the waiting list or lower in the select list, are required to be offered appointments. He submitted that it cannot be said that the appointments given to the petitioners are contrary to the policy or rules and in fact, at the most, it could be said to be an irregularity and not an illegality and their appointments cannot be said to be void ab initio.

11.1 Mr. Pujara also submitted that by way of an affidavit SCA/7922/2008 JUDGMENT subsequently another argument is sought to be developed that it is in violation of the reservation policy inasmuch as there were 73 posts for S.T. candidates and there were only 49 candidates belonging to S.T. category and if these posts are filled up, it would be contrary to the policy for reservation and on that count, the argument is made that these posts has to be kept vacant. He submitted that in fact, the police force needs and requires more personnel and for that purpose, if such an exercise is made, there is no reason why the appointments should not be made when the qualified S.T. candidates are not available. Again referring to the judgement of the Division Bench of this Court in the case of Jay Gujarat Pachhat Varg Vikas Manch & Anr. (supra), Mr. Pujara submitted that if on the earlier occasion also when the reserved category candidates belonged to a particular reserved category are not available and posts are carried further and on the second occasion also, if several number of such candidates are not available, then, the posts have to be filled up. He submitted that the argument advanced by Mr. Shah on this point is nothing but an eye wash deliberately to give a different colour to the entire controversy. He also referred to and relied upon the judgement in the case of Patel Ashokkumar Babulal vs. State of Gujarat & Ors., reported in 1995 (2) GLH 640 in support of his submissions.

11.2 Referring to the judgement in the case of Jai Narain Ram SCA/7922/2008 JUDGMENT (supra), Mr. Pujara emphasised the submission that this judgement is applicable with full force to the facts of the present case as in that case before the Honourable Supreme Court, though the candidates were selected, appointments were denied to those who were next in the merit list on the ground that there was no requisition for preparation of the waiting list and the Honourable Apex Court had given a direction. Emphasising on this judgement, he has submitted that the appointments, which have been already made, cannot be cancelled and the principles of promissory estoppel would be attracted.

11.3 Mr. Pujara also referred to the judgement in the case of Dir. S.C.T.I. For Med. Sci. & Tech. & Anr. vs. M. Pushkaran reported in AIR 2008 SC 559 and submitted that though the persons selected or in the waiting list may not have a right, however, as observed in this judgement, it has been made clear that application of law would depend upon the facts and circumstances and therefore, in the facts of the present case, there is no justification for cancellation of the appointments made. He referred to and submitted that even in this judgement, it has also been observed that a candidate in the waiting list in order of merit has a right to claim that he may be appointed if one or other selected candidate does not join. He submitted that in the facts of the present case, the appointments already made cannot be permitted to be SCA/7922/2008 JUDGMENT cancelled without any justification. He submitted that it is in this context that the observations have been made that the persons in the waiting list has no right to claim the appointments, but, it has been clarified, as stated above.

11.4 Mr. Pujara lastly referred to the judgement of the Honourable Apex Court in the case of Babita Prasad & Ors. vs. State of Bihar & Ors., reported in 1993 Supp. (3) SCC 268 and submitted that quota arises in favour of the petitioners who are already appointed. He pointedly drawn the attention to the observations made in paragraph 31, which read as under:

12. In view of the rival submissions, few undisputed facts are required to be appreciated. The present petitions have been filed by the petitioners whose names are figuring in the waiting list and who have been either given appointments or who are not given appointments. It is not in dispute that the Police Sub Inspector (Unarmed Branch, Class III) Recruitment Rules, 2003 and the said Rules amended/substituted by the Police Sub Inspector (Unarmed Branch, Class III) Recruitment (Second Amendment) Rules, 2004, by which the word in Rule 2 (a), (aa) and (ba) of the principal Rules, 2003 have been amended/substituted. The Police Sub Inspector (Unarmed Branch, Class III) Recruitment Rules, 2003 provide for appointment to the post of Police Sub Inspector by SCA/7922/2008 JUDGMENT different modes as specified in Rule 2, which reads as under: by direct selection on the basis of the competitive (a) examination held by the Police Sub-Inspector Recruitment Board; (b) by special selection from amongst the persons working as Head Constable (Unarmed Branch, Class III) or Assistant Sub-Inspector (Unarmed Branch, Class III) who have completed five years' continuous service in Gujarat State Police and have passed Special Competitive Examination held by the Selection Board constituted under Rule 165(i)(b) of Gujarat Police Manual, 1975 (Part-I) and; (c) by promotion of a person of proved merit and efficiency from amongst the persons who have worked for not less than continuous five years in the cadre of Assistant Sub-Inspector (Unarmed Branch, Class-III) in Gujarat State Police Service, they shall be Assistant Sub Inspector in their (i) parent category. (ii) they have to pass the departmental qualifying examination prescribed under Rule 165 of Gujarat Police Manual Volume, 1975. (iii) prescribed by the State Government from time to time.” they have to pass physical efficiency test Rule 5 provides that a candidate appointed by direct selection shall be required to undergo such training and to pass post training examination and the departmental examination in accordance with the rules prescribed in that behalf by Government from time to time. Rule 6 provides that the candidate appointed by direct selection shall be on probation for a period of one year after successful completion of his training. Rule 7 provides that the candidate appointed by Special SCA/7922/2008 JUDGMENT selection holding competitive examination shall have to pass prescribed post training examination (emphasis supplied). Thus, it provides for direct selection on the basis of the competitive examination and by promotion. At the same time, Rule 2(b), which provides for special selection from amongst the departmental candidates subject to their passing the competitive examination held by the Selection Board constituted under Rule 165(i)(b) of the Gujarat Police Manual, 1975, has been amended by the subsequent Second Amendment Rules, 2004 whereby instead of the words “Police Sub Inspector Recruitment Board”, the words “Gujarat Subordinate Service Selection Board” have been substituted. Therefore, the examination for the purpose of recruitment has been decided to be conducted by the Gujarat Subordinate Service Selection Board. In the same way, there has also been amendment with regard to qualification, to which there is no dispute. The special selection from amongst the departmental candidates, as envisaged by Rule 2(b), clearly suggests that the Government or the Department itself had desired that if the departmental candidates are competitive and are able pass the competitive examination, they may get the appointments to the higher post early rather than by way of regular promotion as and when their turn comes. Accordingly, the petitioners have appeared in the special SCA/7922/2008 JUDGMENT selection and have also passed the competitive examination, both written test as well as oral interview, and on the basis thereof, they are placed in the waiting list. Some of the petitioners (petitioners of Special Civil Application Nos.7922 to 7924 of 2008 and 8042 of 2008) have also undergone the training at the Gujarat Police Academy, Gandhinagar, as provided under the Rules, and on successful completion of the training, they have been offered postings and they have also joined.

13. It is in this context the moot question which is required to be focused is that when on one hand the Government itself provides for special selection under Rule 2(b) of the Recruitment Rules in order to boost the moral of meritorious departmental candidates, they can appear in such special selection and after passing the competitive examination, they can get the appointment to the higher post. On the other hand, persons like the petitioners, who have undergone the process of recruitment, as well as some of the petitioners, who have also under gone the process of recruitment, completed the training thereafter and on successful completion of training, have got the postings, are now sought to be reverted by cancellation of their appointment orders on the ground that their appointment is void ab initio inasmuch as the Recruitment Rules or the Examination Rules do not provide for preparation of the waiting list for the departmental candidates and SCA/7922/2008 JUDGMENT therefore, the appointment offered to them was erroneous. It is in light of this factual background, the submission of the learned Government Pleader that the mistake is sought to be corrected, is required to be appreciated. Further, the moot question as to whether the petitioners can claim any right for being appointed and alternatively, when they are appointed, whether any equity is created in their favour, which makes the impugned order of cancellation of appointments and waiting list as bad and illegal, is required to be appreciated.

14. As discussed above, it is not in dispute that the Recruitment Rules or the Examination Rules do not provide for preparation of the waiting list for the departmental candidates. However, it is well accepted that normally, when the recruitment exercise is undertaken, the waiting list is prepared to the extent of 10% or 20% of the posts depending upon the circumstances in each case. Further, the waiting list is prepared for the direct selection inasmuch as if the selected candidates do not join, then, in that case, the Government may not have to again undergo the entire the exercise, which will save the time and costs and it would be more convenient to them. Therefore, by merely preparing the waiting list, the persons, who are in the waiting list, do not get any right. Similarly, the persons, who are selected, do not get any right merely because they are on the select list. However, it is required to be SCA/7922/2008 JUDGMENT appreciated that so long as persons like the petitioners were on the select list or waiting list, they may not claim any right for appointment, but, when some of the petitioners have already been appointed and they have been sent for training and having successfully completed the training, are offered the postings also, then, it would certainly create an equitable right in their favour. Therefore, in this context the doctrine of estoppel will come into play and the rival submissions are required to be appreciated.

15. Though much reliance was placed by Mr. Suneet Shah, learned Government Pleader, on the observations made by the Honourable Apex Court in its judgement in the case of Indian Drug Pharmaceuticals Limited (supra), emphasising the scope of judicial review, it is required to be appreciated that the facts in the said case were different as it was relating to regularisation or scheme of providing the compassionate appointment and in the facts of that case, the observations have been made. The Honourable Apex Court has extensively referred to the earlier judgement of its Constitutional Bench in the case of Secy., State of Karnataka vs. Umadevi, reported in (2006) 4 SCC 1. A bare perusal of the observations quoted of the earlier judgement in this very judgement, which are heavily relied upon by the learned Government Pleader, itself would make the position clear that it SCA/7922/2008 JUDGMENT was altogether a different set of facts and the observations are made when irregular appointments were made and it was directed to regularise such persons, which is not the case here. Similarly, though much emphasis was laid for adherence to the Recruitment Rules and though it was submitted that the appointment has to be as per the Recruitment Rules, relying upon the observations of the Honourable Apex Court that unless the appointment is in terms of the relevant rules and after proper competition amongst qualified persons, the same would not confer any right upon the appointee. These observations, which have been relied upon, have to be read in context with the facts as a whole, which again has a reference to irregular appointments made without following any recruitment process de hors the recruitment rules. The facts of the present case are totally different and therefore, this judgement will not have any application to the facts of the present case, though there is no quarrel with regard to the scope of judicial review. Further, it is also required to be emphasised that even in this very judgement, it has been observed in paragraph 38 that “the respondents have not been able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. Therefore, in the facts of the present case, it is not in dispute that the petitioners have undergone the competitive SCA/7922/2008 JUDGMENT selection process as per the Recruitment Rules, passed written as well as oral test and thereafter, have undergone the training also. Therefore, this judgement will not have any application to the facts of the present case. It is well accepted that the judgement or the principle laid down in the judgement has to be read in the context of the facts stated in the matter. A useful reference can be made to the observations made by the Honourable Apex Court in its judgement in the case of Haryana Financial Corporation & Anr. vs. Jagdamba Oil Mills & Anr., reported in (2002) 3 SCC 496, quoting Lord Denning in the matter of applying precedents, as under: “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." In light of this discussion, the judgements of the Honourable Apex Court with regard to limited scope of judicial review, much emphasised by the learned Government Pleader, are required to be appreciated. The judgements cited, as discussed above, are in different context and the observations have been made in context of the facts regarding irregular appointments and regularisation, etc., and therefore, SCA/7922/2008 JUDGMENT the said judgements have no application.

16. As regards the observations made by the Honourable Apex Court that “the statutory bodies are bound to apply recruitment rules laid down under the statutory rules, including the rules framed under Article 309” in the case of Punjab Water Supply & Sewerage Board (supra), which have been relied upon by the learned Government Pleader, it is required to be mentioned that again these observations have to be read in context with the given set of facts. In that case also, it was a case of regularisation de hors the recruitment rules and therefore, the observations have been made, which is not the case herein, and therefore, it will not have any application to the present case.

17. In these circumstances, it cannot be said that there is no scope of judicial review inasmuch as the concept of judicial review is well accepted in the scheme of our Constitution and though the Court has to exercise the self-restraint and caution while undertaking the scope of judicial review, it cannot be said that there is no scope for examination of the said action, like in the present case. The principle of estoppel will certainly, therefore, apply and it has also reference to the doctrine of legitimate expectation. If candidates like the petitioners having appeared in the recruitment process and successfully undergone the training SCA/7922/2008 JUDGMENT thereafter, on the basis of which the posting is also offered, equity is created and they have legitimate expectation for continuation on the post. It is not in dispute that there is no fault on the part of the petitioners. It is not even the case of the Government that there is any irregularity in the recruitment process or the petitioners have claimed the appointment on false declaration or production of fake documents or by suppression of material facts. Therefore, when there is no lack of bona fide on the part of the petitioners and if having undergone the recruitment process and thereafter, having successfully undergone the training also, on the basis of which, the posting is offered, is it justified that the respondents can cancel the appointments. It is also required to be appreciated that even if it is assumed that the respondent- Government has a right to cancel the appointment if it is made by mistake, but, that mistake has to be justified and bona fide and it will have to be examined that whether it is genuine mistake or not or whether an excuse is made for cancellation of the appointments. In the facts of the present case, the appointments are sought to be cancelled only on the ground that there is no provision for preparation of the waiting list for the departmental candidates, who are selected by competitive examination, in the Recruitment Rules or the Examination Rules. SCA/7922/2008 JUDGMENT

18. If the waiting list is prepared for the direct selection, there is no reason why the waiting list could not be prepared for the departmental candidates who appeared by way of special selection. The submission made by the learned Government Pleader that the waiting list is prepared in case of large recruitment exercise, where number of posts are required to be filled up, and for the sake of convenience, the Government or the Department may prepare the waiting list so that if the selected candidates do not join, it may not have to undertake the entire exercise again and it can save time and costs both. However, the submission that the special selection is for the departmental candidates, which does not involve large number of posts, and normally, the departmental candidates join such posts and they hardly fail to join the posts after selection and therefore, the waiting list is not prepared, is again required to be appreciated. This may be the practice followed and it is only on the basis of the same, the communication has been issued by the General Administration Department whereby the appointments are sought to be cancelled. It is required to be appreciated and accepted that in light of the affidavit in reply filed by the Additional Director General of Police on behalf of the Police Department, it is clear that number of vacancies were more than the number of selected candidates in the select list, meaning thereby, the requisition was for 189 posts, however, the select list was prepared for 165 posts only and the appointments, SCA/7922/2008 JUDGMENT including that of the petitioners, do not exceed that and it is in this context further this submission may have to be appreciated. It is required to be appreciated that in the affidavit filed by the Additional Director General of Police, it has also been suggested that the appointment may be permitted to be made and therefore, it has been communicated to the General Administration Department for necessary steps. Therefore, the Department, which has sent the requisition, and the Department, in which the posts are to be filled in, had desired to make the appointments. However, the General Administration Department, which is not concerned with this exercise or appointments in the Department, has raised this issue and taken a different stand that the appointment cannot be made as there is no provision for preparation of the waiting list either in the Recruitment Rules or the Examination Rules.

19. Therefore, the claim of the petitioners on the ground of principle of estoppel or doctrine of legitimate expectation is required to be appreciated. The principles of estoppel have been well accepted by the Honourable Apex Court in its judgement in the case of Union of India & Ors. vs. M/s. Anglo Afghan Agencies, etc., reported in AIR 1968 SC 718.

20. The Honourable Apex Court in its judgement in the case of SCA/7922/2008 JUDGMENT M/s. Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh & Ors., reported in (1979) 2 SCC 409, has extensively referred to and discussed the concept of doctrine of promissory estoppel. The Honourable Apex Court has, at the outset, observed as under: “How far and to what extent is the State bound by doctrine of promissory estoppel. It is a doctrine of comparatively recent origin, but, it is potentially so fruitful and pregnant with such vast possibilities for growth that traditionally lawyers are alarmed lest it might upset existing doctrines which are looked upon almost reverentially and which have held the field for a long number of years.” Further, the Honourable Apex Court in this judgement has quoted Lord Denning and observed as under: “The law has not been standing still since Jorden v. Money. There has been a series of decisions over the last fifty years which, although they are said to be cases of estoppel are not really such. They are cases in which a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made, and which was in fact so acted on. In such cases the courts have said that the promise must be honoured.” Further, elaborating on this aspect, referring to the earlier judgement in Indo-Afghan Agencies case (supra) and the principles and jurisprudence developed over a period of time in India as well as abroad, it has quoted the earlier judgement of the Honourable Supreme Court wherein it is observed as under: "We are unable to accede to the contention that the executive SCA/7922/2008 JUDGMENT necessity releases the Government from honouring its solemn promises relying on which citizens have acted to their detriment. Under our constitutional set-up no person may be deprived of his right or liberty except in due course of and by authority of law : if a member of the executive seeks to deprive a citizen of his right or liberty otherwise than in exercise of power derived from the law - common or statute - the Courts will be competent to and indeed would be bound to, protect the rights of the aggrieved citizen".

21. It is also required to be appreciated that in case of Asstt, C.C.T. vs. Dharmendra Trading Co., reported in (1988) 3 SCC 570, the next submission of learned counsel for the appellants was that the concessions granted by the said order dated June 30, 1969 were of no legal effect as there is no statutory provision under which such concessions could be granted and the order of June 30, 1969 was ultra vires and bad in law. It is the same contention sought to be raised in the facts of the present case also that there is no provision in the Recruitment Rules for preparing the waiting list and therefore, the waiting list prepared or any appointment made is void ab initio. However, such contention has been negatived and has not been accepted.

22. This doctrine is well accepted over a period of and passage of time in India and what was observed by the Honourable Apex Court in the case of Motilal Padampat Sugar Mills Co. Ltd. (supra) has resulted in reality and very valid doctrine for equitable justice. It has been SCA/7922/2008 JUDGMENT followed till recently by the Honourable Apex Court in a judgement in the case of U.P. Power Corporation Ltd. & Anr. vs. Sant Steels & Alloys (P) Ltd. & Ors., reported in AIR 2008 SC 693. The Honourable Apex Court has also expressed a caution that the doctrine of promissory estoppel contains significant judicial test. In that direction, it is necessary to point out that since the doctrine of promissory estoppel is judicially equitable doctrine, it must yield when the equity so requires. The Honourable Apex Court in the judgement has also observed that it is not even necessary that on the basis of the compromise held out either party should have altered the position to the detriment. The Honourable Apex Court has also referring to the earlier judgement in the case of MRF Limited vs. Assistant Commissioner (Assessment), Sales Tax & Ors. reported in 2006(8) SCC 702, and it has been quoted and observed that the concept/doctrine of legitimate expectation was invoked. In this case, the State of Kerala has issued a notification granting exemption for expansion in manufacture of certain products including the rubber based goods, the assessee manufacturer relying on that introduction of exemption, commenced commercial production after investing huge amount. This exemption was granted for a fixed period of seven years but during the currency of the period for exemption, the State Government issued another notification excluding the formation of a compound rubber from the definition of 'manufacture' for the purpose of SCA/7922/2008 JUDGMENT original exemption notification. Therefore, this premature deprivement to the assessee manufacturer of the benefit of exemption was held by the Honourable Apex Court to be arbitrary, unjust and unreasonable. Their Lordship invoked the doctrine of legitimate expectation. It was contended before the Court that the notification was statutory one and no plea of estoppel would lie against the statute, but, their Lordship held that the principle underlying the legitimate expectation was based on Article 14 of the Constitution and no action taken by the State which went against the rule of fairness was liable to be struck down. Finally, this Court after review of the cases on the subject, invoke the principles of promissory estoppel and also legitimate expectation and even that rejection of exemption granted for a period of seven years by the State Government was arbitrary, unjust and unreasonable. Further, it has been quoted from the earlier judgement of the Honourable Apex Court in the case of E. P. Royappa vs. State of Tamil Nadu, reported in (1974) 4 SCC 3 as under: “..... ..... where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. Equity that arises in favour of a party as a result of a representation made by the State is founded on the basic concept of justice and fair play. The attempt to take away the said benefit of exemption ... ... is highly arbitrary, unjust and unreasonable and deserves to be quashed.” ... Similarly, the doctrine of legitimate expectation, which has SCA/7922/2008 JUDGMENT been recognised and accepted by the Courts, is that the Government or Authority shall be fair in their dealing with the subjects or citizens. The Honourable Apex Court in the case of Bannari Amman Sugars Ltd. vs. Commercial Tax Officer & Ors., reported in (2005) 1 SCC 625, has observed as under: “A person may have a 'legitimate expectation' of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The doctrine of legitimate expectation has an important place in the developing law of judicial review. ...” ... ...

23. One more aspect which is required to be considered is that whether the submission that the impugned order is passed without giving any opportunity of hearing and it involves civil consequences, is bad and illegal and in violation of the rules of natural justice. It is not in dispute that the impugned orders have been passed without affording any opportunity of hearing for cancellation of appointment and as has been discussed hereinabove, only the petitioners, who have passed the competitive examination and also have successfully completed the training and on the basis of which, the postings are also offered to them, equity has been created in their favour and once the right or semblance of right has been created, the same cannot be taken away. It is also required to be appreciated that it will have civil consequences inasmuch as the higher appointment has been offered to the petitioners, which is SCA/7922/2008 JUDGMENT sought to be now cancelled, it will in turn lead to denial of higher emoluments and also other benefits. Therefore, when it involves civil consequences, at least, the rules of natural justice, which are bare minimum, could have been complied with and they ought to have been given an opportunity to show cause as to why such appointment should not be cancelled or that they should not be reverted. As it has also not been done even on this count also for some of the petitioners, as discussed hereinabove, it would be nothing but violation of the principles of natural justice. Though some of the petitioners, who are in the waiting list and who have claimed to be appointed, cannot make a grievance on the ground of civil consequences and the order being adverse or rules of natural justice having been violated inasmuch as they are only in the waiting list as they are not appointed, the doctrine of estoppel would not come into play or would not be attracted and therefore, the petitioners in Special Civil Application Nos.7975/2008, 7976/2008, 8115/2008 and 8595/2008 cannot claim that the impugned decisions involve the so called civil consequences and the impugned orders are in violation of the rules of natural justice. In fact, for them, there are no consequences, their names had appeared only in the waiting list, which is now sought to be cancelled and therefore, they would not be justified in making the grievance. SCA/7922/2008 JUDGMENT

24. Further, a useful reference can be made to the judgement of the Honourable Apex Court in the case of Jai Narain Ram (supra), which was referred to and relied upon by the learned Counsel, Mr. Pujara, for the petitioners. The said judgement is more nearer to the facts of the present case. In that case also, the recruitment process was undertaken by the Public Service Commission and thereafter, the candidates who had selected for the post had not joined the services and the appointments were denied to next four qualified candidates on the ground that there was no requisition by the State Government to the Service Commission for preparation of the waiting list. The Honourable Apex Court in this judgement referring to the discussion on this aspect in light of Articles 14 and 16 of the Constitution of India and also the reservation issue, has observed as under: “Right to seek appointment to a post under Article 14 read with Article 16(1) and (4) is a constitutional right to equality. The State failed to perform its constitutional duty to requisition the P.S.C. to recommend the next qualified person to the posts reserved for scheduled castes. Under these circumstances, the denial of appointment to the appellant and three others above him is unconstitutional. ...” ... Similarly, the learned Counsel, Mr. Pujara, has referred to and relied upon the judgement in the case of Madan Lal & Ors. (supra) in support of his contention that initially the requisition was sent for 189 posts and in fact, the select list prepared is for 165 posts. Therefore, even if the appointments are made, then, it is not in excess of the requisition SCA/7922/2008 JUDGMENT originally sent. The Honourable Apex Court has observed referring to paragraphs 22 and 23 that “we cannot agree with the learned counsel for respondents that during the period of one year even if all the 11 vacancies are filled in for which requisition is initiated by the State in the present case and if some more vacancies arise during one year, the present list can still be operated upon because the Commission has sent the list of 20 selected candidates.” The learned Counsel for the petitioners has rightly emphasised that it is not exceeding the number of posts for which the requisition was sent and therefore, there is no illegality and appointments cannot be said to be void ab initio.

25. Another facet of the argument canvassed by the learned Government Pleader is relying on the break up and ratio for the general and reserved category posts. Again referring to the details, it was tried to emphasise that out of total 165 posts, 116 posts are for general category and 73 posts are for scheduled caste and scheduled tribe categories and only 49 candidates have been available. Therefore, if further appointments are made, it would be against the reserved category post, and the same would be contrary to the reservation policy and hence, the posts cannot be filled in and the appointments made are also illegal on SCA/7922/2008 JUDGMENT this count and the cancellation of the appointments is justified. However, at this stage, a useful reference can be made to the judgement of the Division Bench of this Court in the case of Jay Gujarat Pachhat Varg Vikas Manch & Anr. (supra), which is relied upon by Mr. Pujara, learned Counsel for the petitioners, wherein it has been observed as under: “From the reply, it appears that, the selections have been absolutely fair and the grievance of the petitioner Associations is wholly misconceived. Despite keeping reservation if the sufficient number of candidates of reserved categories are not available only such number of candidates who are found to suitable in the reserved category could be included in the select list and it cannot be said that if 10 posts are reserved for S.C. candidates, all the 10 posts of S.C. have to be filled by S.C. Candidates, whether they are selected or not and if the suitable candidates are not available against the reserved vacancies such vacancies cannot be allowed to remain unfilled indefinitely and, therefore, the grievance as has been raised cannot be said to be a legitimate grievance.” It is required to be appreciated that in the facts of the present case also, even on the earlier occasion, sufficient number of suitable scheduled tribe candidates were not found and the posts were carried forward and even in this case also, in spite of reservation, if the suitable candidates belonging to the scheduled tribe category are not found, it cannot be said that as the posts are meant for the reserved category, no appointment could be made and any appointment made would be contrary to the policy and illegal. On the contrary, in the force SCA/7922/2008 JUDGMENT like police, where it is generally an admitted fact that it is understaffed and for various reasons, more number of police personnel of various ranks are required to be appointed. Therefore, there is no reason to keep the posts vacant on the ground that certain number of posts have to be filled up only by S.T. candidates and till they are available, it should remain vacant for indefinite period. In any view of the matter, this also appears to have been an afterthought to be raised as one of the grounds for justifying the cancellation of the appointment, which was mainly because of the fact that the Recruitment Rules do not provide for preparing the waiting list and the waiting list is prepared contrary to the instructions of the General Administration Department.

26. It is also required to be appreciated that as discussed above, if the waiting list could be prepared for the candidates who have appeared for the direct selection, justification given for not preparing the waiting list for the departmental candidates, who have passed in the competitive examination, that normally, the departmental candidates would join and there may not be any fall out, is also misconceived as even the departmental candidates also may not think it proper to join considering the personal circumstances and in that case, again there might be a drop out. Therefore, there should not be any such reservation and if the select list is prepared for the candidates and the waiting list is SCA/7922/2008 JUDGMENT also prepared, the select list and waiting list for the departmental candidates, who have passed the competitive examination, can be prepared, which does not confer any right in any way.

27. Another aspect which is required to be appreciated and which has been emphasised by the learned Counsel, Mr. Pujara, is that even though it has been described as the waiting list, in fact, it is to be treated as the select list as the total number of requisition was for 189 posts and the select list prepared is only for 165 posts. Therefore, the submission made by the learned Counsel, Mr. Pujara, that the candidates till 189 posts can be said to be in the select list and if it exceeds, then, the remaining list could be the waiting list, cannot be accepted as a general proposition and in the facts of the present case, in light of the discussion made hereinabove, it does not require any elaborate discussion as the petitioners, who are appointed and whose appointments are cancelled, would definitely stand on a better footing as equity is created in their favour.

28. It is in these circumstances the petitioners in Special Civil Application Nos.7922 to 7924 of 2008 and 8042 of 2008, who have been offered the postings after they had undergone the selection procedure, passed the competitive examination and also successfully completed the SCA/7922/2008 JUDGMENT training, have a right as equity is created in their favour. Therefore, the impugned orders, by which the appointments of these petitioners are cancelled, are required to be quashed and set aside for the discussion and reasons stated hereinabove. Accordingly, Special Civil Application Nos.7922 to 7924 of 2008 and 8042 of 2008 are allowed. The impugned orders are quashed and set aside qua the petitioners only. Rule is made absolute to the aforesaid extent only.

29. So far as the petitioners in Special Civil Application Nos.7975 of 2008, 7976 of 2008, 8115 of 2008 and 8595 of 2008, are concerned, they have prayed inter alia that the impugned orders, being Order No. Bharat/112004/570/Kh dated 20/05/2008 passed by the Gujarat Subordinate Service Selection Board and being Order No. Bharat/PSI/Mode-2/Kh-1973/08 dated 20/05/2008 passed by the Office of the Director General of Police, whereby the petitioners are delisted from the waiting list without affording them an opportunity of being heard, be quashed and set aside, and the respondents be directed to grant them appointments as Police Sub Inspector (Unarmed, Class III). However, admittedly, as the petitioners in these petitions have not been appointed inasmuch as they are in the waiting list, they have not even undergone the training and they have not been given the appointment or posting, they cannot claim appointments as a matter of right and no SCA/7922/2008 JUDGMENT equity or vested right can be said to have been created in their favour. Therefore, the prayer or relief, which they have claimed, cannot be granted and the petitions deserve to be rejected. Therefore, Special Civil Application Nos.7975/2008, 7976/2008, 8115/2008 and 8595/2008, in light of the discussion made hereinabove, stand dismissed. Rule is discharged. kamlesh* [Rajesh H. Shukla, J.]