Court Can’t Ask State To Prepare Waiting List; State Has Right To Refrain From Preparing It While Completing Selection Process: Punjab & Haryana HC
The Punjab and Haryana High Court held that the Court cannot ask State to prepare waiting list and the State has right to refrain from preparing waiting list while completing selection process.
The Court held thus in a petition seeking setting aside of clauses of an advertisement by which the State prescribed that there would be no waiting list and after completion of process, vacancy shall be carried forward for next selection.
A Single Bench of Justice Jagmohan Bansal observed, “The State has right not to prepare waiting list as it is specifically provided in the Standing Order as well as advertisement. In view of law laid down by Supreme Court in afore-cited judgments, the State has right not to prepare waiting list and this Court cannot ask respondent to prepare waiting list, thus, there is no substance in the argument of petitioners that non-preparation of waiting list is bad in the eye of law. There is no infirmity in the action of respondent warranting interference of this Court, thus, impugned clause 10(b) is valid.”
The Bench said that a vacancy would be carried forward if it remains unfilled on account of disqualification of selected candidates in medical examination or character/antecedents/education certificates verification.
Deepak Malik was the petitioner in person and Amicus Curiae Anurag Goyal represented the petitioners. Whereas, Addl. AG Anu Chatrath represented the respondents.
Brief Facts -
The petitioners sought direction to the respondents to fill up vacancies arising on account of selection of 144 candidates as Sub-Inspectors as well as Head Constables. The State had issued four advertisements, inviting applications for the posts of Sub-Inspector, Head Constable, and Constable. Every eligible candidate (possessing minimum qualification) was at liberty to apply for the said three posts while a 10+2 pass was allowed to apply for the post of Constable in District Police Cadre as well as Intelligence Cadre. All ads were issued almost at the same point of time. After conducting written test, the State declared result and 144 candidates were selected.
As 144 candidates were common for the post of Sub-Inspector and Head Constable, they did not appear for medical examination qua the post of Head Constable and apart from the said 144 candidates, many more candidates did not come forward for medical and other mandatory verifications. Resultantly, more than 300 posts of Head Constable remained vacant. The petitioners filed multiple representations requesting the respondents to consider them but the State did not invite them as there was no waiting list and as per Clause 10(b) and 15 of advertisement, in case a vacancy remains vacant, on account of any reason, the same shall be carried forward to the next recruitment. Being aggrieved, the petitioners approached the High Court.
The High Court in view of the facts and circumstances of the case noted, “The terms and conditions enshrined in the advertisement are verbatim replica of Standing Order No.3 of 2021 issued by Director General of Punjab in terms of Sections 4(d) and 45 (g) of Punjab Police Act, 2007.”
The Court culled out the following principles –
(i) The State has right to refrain from preparing waiting list while completing selection process.
(ii) Court cannot ask State to prepare waiting list.
(iii) No candidate after participating in the selection process can challenge the process itself, however, he has right to challenge terms and conditions on the ground of violation of fundamental rights guaranteed by the Constitution of India.
(iv) The State is free to determine selection process, however, it should be just, right and fair otherwise, it would be violative of Article 21 of the Constitution of India.
(v) Court can test validity of any administrative or policy decision on the touchstone of fundamental rights and statutory provisions. (vi) Legitimate expectation is a part of rule of law.
The Court further said that in Clause 12.4 of the advertisement, the expression “In case a vacancy remains unfilled, on account of any reason, the same shall be carried forward to the next recruitment” has been inserted beyond the Standing Order and the same being contrary to Standing Order needs to be ignored.
“Clause 10(b) provides that there would be no waiting list. Clause 15 provides that in case a vacancy remains unfilled on account of disqualification of selected candidates in medical examination/character and antecedents verification/verification of education/reservation certificate or due to non-joining of selected candidate(s) or on account of any other reason, after the above mentioned process such vacancies shall be carry forward for next selection”, it also noted.
The Court, therefore, concluded the following points –
(i) A clause of an advertisement can be challenged after declaration of result provided its validity is challenged.
(ii) High Court has power to test validity of any Clause of an advertisement on the touchstone of fundamental rights and statutory provisions.
(iii) Clause 10 (b) as well as 15 of the advertisement are valid, however, Clause 15 needs to be read in the manner as discussed hereinabove.
(iv) The petitioners even in the absence of waiting list, in the peculiar situation need to be considered for the post of Head Constables.
The Court clarified that the petitioners merely on account of filing the petition would not get preference and hence, the State would consider 144 eligible candidates next to 787 candidates within 3 months. It added that if any candidate does not join, no next candidate would be eligible to be considered.
Accordingly, the High Court allowed the petition and directed the respondents to consider 144 candidates for the post of Head Constable who were holding rank beyond 787.
Cause Title- Lovepreeet Kumar and Ors. v. State of Punjab and Ors. (Neutral Citation: 2024:PHHC:073647)
