Jyoti Portey Vs State of Chhattisgarh

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NAFR

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Digitally signed by INDRAJEET SAHU HIGH COURT OF CHHATTISGARH AT BILASPUR Date: 2025.11.26 18:27:24 +0530

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WPS No. 2475 of 2025

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1 - Jyoti Portey D/o Tek Singh Portey Aged About 29 Years R/o House No. 62 Kansara Ghanghat District - Mungeli Chhattisgarh

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2 - Jay Mohan Pradhan S/o Gurucharan Pradhan Aged About 32 Years R/o Sukulbhathli Tadola District - Raigarh Chhattisgarh

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3 - Churamani Sahu S/o Holu Ram Sahu Aged About 30 Years R/o Plot No. 06 Janki Chhaya Near Manav Petrol Pump Dhanora District - Durg Chhattisgarh.

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4 - Dinesh Kumar Sharma S/o Bimbadhar Das Aged About 30 Years R/o Village Jhariyapali Tehsil Gharghoda District - Raigarh Chhattisgarh

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5 - Yogesh Kumar Mahilange S/o Surendra Kumar Mahilange Aged About 26 Years R/o Tifra Bilaspur District - Bilaspur (C.G.)

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6 - Shashikala D/o Kameshwar Singh Aged About 29 Years R/o Parwatipur Surajpur Surajpur Chhattisgarh

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7 - Nidhi Netam D/o Suresh Kumar Netam Aged About 26 Years R/o Nichepara Abhanpur Kanker District - Kanker Chhattisgarh

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8 - Yashwant Ghritlahare S/o Thanwar Ghritlahare Aged About 34 Years R/o Quarter No. 8/437 Hospital Line Kalibadi Chowk Near Degree Girls College Raipur Chhattisgarh.

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9 - Kanti Kumar S/o Labho Ram Aged About 32 Years R/o Dharashiv Tehsil Lavan Balodabazar Balodabazar Bhatapara Chhattisgarh

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10 - Vashu Dubey S/o Basant Kumar Dubey Aged About 27 Years R/o 8/918 Ward No. 7 Teachers Colony Kawardha District - Kabirdham Chhattisgarh 11 - Ajeet S/o Bajaru Aged About 27 Years R/o House No. 1 Kumhar Para Ward No. 15, Near Chandi Mandir Kawardha District - Kabirdham Chhattisgarh.

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12 - Gopal Prasad Sahu S/o Bhagwat Prasad Sahu Aged About 32 Years R/o Birkona Bilaspur District - Bilaspur Chhattisgarh.

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13 - Churamani Patel S/o Luk Ram Patel Aged About 35 Years R/o Sarapanch Chowk Mauhapli Kharsiya Raigarh District - Raigarh Chhattisgarh 14 - Arvind Saurabh S/o Munna Prasad Aged About 31 Years R/o Azad Nagar Dalli Rajhara District - Balod Chhattisgarh.

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15 - Ved Prakash Mandavi S/o Kanas Ram Mnadavi Aged About 26 Years Ward No. 7 Dokala Rajnandgaon Chhattisgarh.

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--- Petitioner(s)

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versus

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1 - State of Chhattisgarh Through The Secretary Department of Home (Police) Mantralaya Mahanadi Bhawan Nawa Raipur Atal Nagar District - Raipur Chhattisgarh

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2 - State of Chhattisgarh Through Director General of Police Police Head Quarters Atal Nagar Nawa Raipur Chhattisgarh.

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3 - State of Chhattisgarh Through Appointment Committee Formed Under Chhattisgarh Police Executive (Non Gazetted ) Service Recruitment Rules 2021 And In Lieu Of Advertisement Dated 01-10-2021 Police Head Quarters Atal Nagar Nawa Raipur Chhattisgarh.

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4 - State of Chhattisgarh Through ADGP (Administration) Police Head Quarters Atal Nagar Nawa Raipur Chhattisgarh.

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--- Respondent(s)

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WPS No. 8595 of 2025

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1 - Dinesh Kumar Sharma S/o Bimbadhar Das Aged About 30 Years R/o Village Jhariyapali, Tehsil Gharghoda, District Raigarh, Chhattisgarh. 2 - Yogesh Kumar Mahilange S/o Surendra Kumar Mahilange Aged About 26 Years R/o Tifra, Bilaspur, District Bilaspur Chhattisgarh.

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--- Petitioner(s)

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Versus

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1 - State of Chhattisgarh Through The Secretary, Department of Home (Police), Mantralaya, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, District Raipur Chhattisgarh

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2 - State of Chhattisgarh Through Director General of Police, Police Head Quarters, Atal Nagar Nawa Raipur, Chhattisgarh

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3 - State of Chhattisgarh Through Appointment Committee, Formed Under Chhattisgarh Police Executive (Non-Gazetted) Service Recruitment Rules 2021 And In Lieu of Advertisement Dated 01-10-2021 Police Head Quarters, Atal Nagar Nawa Raipur, Chhattisgarh

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4 - State of Chhattisgarh Through ADGP (Administration), Police Head Quarters, Atal Nagar Nawa Raipur, Chhattisgarh

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--- Respondent(s)

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WPS No. 3274 of 2025

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1 - Lakesh Kumar Kashyap S/o Mithai Lal Kashyap Aged About 31 Years R/o 125, Jamdi, Janjgir-Champa District- Janjgir-Champa, (C.G.), 495661. 2 - Girja Shankar Verma S/o Rajendra Prasad Verma Aged About 33 Years R/o H.No. 301, Ward No. 10, Shankar Nagar, Durg, District- Durg, (C.G.), 491001

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--- Petitioner(s)

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Versus

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1 - State of Chhattisgarh Through - The Secretary, Department of Home (Police), Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur, DistrictRaipur (C.G.)

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2 - Director General of Police Police Head Quarters, Atal Nagar, Naya Raipur, District- Raipur (C.G.)

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3 - Selection Committee Formed Under Chhattisgarh Police Executive (NonGazetted) Service Recruitment Rules 2021 And In Lieu Of Advertisement Dated 01.10.2021. Through Director General of Police, Police Head Quarters, Atal Nagar, Nawa Raipur, (C.G.)

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--- Respondent(s)

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For Petitioners	:	Shri Kishore Bhaduri, Sr. Advocate
		alogwith Shri Anand Dadariya, Shri Sabyasachi Bhaduri and Shri Khulesh Sahu, Advocate.
For State	:	Shri S.P. Kale, Additional Advocate
		General.

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Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment Reserved on 28.08.2025 Judgment Delivered on 26.11 .2025

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1. In all these writ petitions, the petitioners are claiming the same relief and their grievances are one and the same, therefore, they are being heard and decided together by this common order.

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2. In WPS No.2475 of 2025, the petitioners are claiming the following reliefs:

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“A. To direct the concerned respondent to publish the final merit list irrespective of selection of candidates; and

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B. To direct the concerned respondent to publish the wait list of candidates in accordance to merit of candidates, in adherence to the Chhattisgarh Police Executive (Non- Gazetted) Service Recruitment Rules 2021;

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C. To direct the concerned respondent to publish the vacancy on account of non-joining or any other lapse of candidates.

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D. To compensate the petitioner by extending the limitation/ time frame of validity of the final merit list.

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E. Any other relief(s) in favor of Petitioner as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.”

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3. In WPS No.3274 of 2025, the petitioners are claiming the following

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reliefs:

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“10.1. That, this Hon’ble Court may kindly be pleased to direct the concerned respondent to prepare and publish the waiting list in compliance with Rule 12(2) of the Chhattisgarh Police Executive (Non-Gazetted) Service Recruitment Rules, 2021; and

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10.2. That this Hon'ble Court may kindly be pleased to direct the concerned respondent to give appointment to the petitioners from the waiting list on the unfilled posts, if found eligible.

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10.3. That this Hon'ble Court may kindly be pleased to grant any other relief(s) in favour of the petitioner which the Hon'ble Court deem fit and just in the facts and circumstances of the case, including awarding the costs to the petitioner.

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4. In WPS No.8595 of 2025, the petitioners are claiming the following reliefs:

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“A. To set aside the impugned advertisement dated 21.10.2024 (Annexure P/1); B. To direct the respondents to fill up the vacancy published in earlier advertisement dated 01.10.2021 following the recruitment rules. provisions of C. To direct the concerned respondent to publish the vacancy on account of non-joining or any other lapse of candidates. D. Any other relief(s) in favor of Petitioner as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.”

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5. The subject matter in brief in WPS No.3274 of 2025 and 2475 of 2025 are that, the petitioners are aspirants in the recruitment process on the post of Subedar, Platoon Commander and Sub Inspector (Special Branch, Finger Prints, Questioned Documents, Computer & Radio) initiated by the respondent department for recruitment on 975 different posts through the advertisement published on 01.10.2021. The recruitment process was to be conducted in a phased manner comprising multiple stages of assessment, preliminary examination, mains examination, physical efficiency test and interview. The entire selection process including conducting examination, valuation of candidates and preparation of merit list was to be carried out under the provisions of The Chhattisgarh Police Executive (Non Gazetted) Service Recruitment Rules, 2021 (in short, the Rules, 2021). The advertisement dated 01.10.2021 was also issued under the said Rules, 2021. The petitioners filled up their application form and participated in the recruitment process. The preliminary examination was conducted on 29.01.2023 and on 22.02.2023 the respondent department declared the result of preliminary examination and candidates were shortlisted for mains examination. The mains

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examination was conducted in between 26.05.2023 and 29.05.2023. The petitioners were qualified in mains examination also and became eligible to participate in the physical efficiency test. The said physical efficiency test was to be held in between 18.07.2023 and 30.07.2023 and thereafter they were qualified for personal interview. The petitioners also appeared in personal interview conducted between 17.08.2023 and 08.09.2023 and final merit list was to be prepared by the respondent department. The final list of successful candidates were published on 20.10.2024, however, the petitioners name were not shown in the final list. It is the case of petitioners that respondent department have also subsequently published the cutoff marks applicable for all categories of post in accordance with the prescribed recruitment rules. Despite competition of selection process, the respondent department published only merit list of selected candidates without providing overall rank of all the candidates participated in the selection process. The selected candidates were thereafter granted appointment on 03.03.2025. Despite making application under Right to Information Act, 2005 for disclosure of final merit list of all the candidates who appeared in the selection process along with waitlist, no information were supplied to the candidates by the respondents. On 24.03.2025 they submitted their representation to the respondent No.4 for publication of final merit list and the waitlist of all the candidates under the Rules, 2021, but their representations were also unanswered then present writ petitions have been filed.

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6. The petitioners in WPS No.8595 of 2025 were also aspirants on the recruitment process of 975 posts in different category of Subedar,

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Platoon Commander and Sub Inspector (Special Branch, Finger Prints, Questioned Documents, Computer & Radio) initiated by the respondent department under the advertisement dated 01.10.2021 which was to be carried out under the provisions of the Rules, 2021. The petitioners participated in the preliminary examination held on 29.01.2023, mains examination held in between 26.05.2023 and 29.05.2023 and physical efficiency test conducted between 18.07.2023 and 30.07.2023 and appeared in interview also conducted between 17.08.2023 and 08.09.2023. When the final list was published, the name of petitioners were not reflected. The overall ranking of all the candidates participated in the selection process were also not published by the department. Even after making application under the Right to Information Act for disclosure of final merit list and wait list of all the candidates who participated in the selection process, if any, the same was not disclosed by the department. Challenging the action of respondent authority, the present petitioners who are also petitioners No.4 & 5 (in WPS No.2475 of 2025) had already filed WPS No.2475 of 2025 which is pending for its adjudication, however, during pendency of that writ petition, the respondent authorities have issued another advertisement dated 21.10.2024 through Chhattisgarh Public Service Commission Raipur for appointment on 341 posts of Subedar/Sub Inspector/Platoon Commander (Home/Police Department) and therefore they claimed in the present writ petition for setting aside the impugned advertisement dated 21.10.2024 and to direct the respondent authority to fill up the vacancy published in the earlier advertisement dated 01.10.2021.

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7. In WPS No.2475 of 2025 and WPS No.3274 of 2025, the respondent/State filed their return and submitted that after completion of all phases of examination the final select list was published by the department on 28.10.2024. Out of total 975 advertised posts, the select list was published for 959 posts. The marks obtained by 1436 candidates were already uploaded in the official website of the police department on 05.11.2024 and information is available on the website of the department. The final select list has already been annexed by the petitioners themselves along with writ petition as Annexure P/6 & P/8. So far as wait list is concerned, rule 12 of Rules, 2021 provides that publication of final select list is mandatory, however, rule 12(2) of Rules, 2021 provides only preparation of wait list. The language of both these rules i.e. rule 12(1) and (2) of Rules, 2021 make it clear that rule 12(2) of Rules, 2021 is directory in nature which provides only preparation of wait list and in compliance thereof, the selection committee has already prepared the wait list. It is also submitted by the State in the return that on 21.10.2024 a new advertisement of 341 posts of Subedar/Sub Inspector/Platoon Commander have been issued and recruitment process is going on. Since new advertisement dated 21.10.2024 is published and recruitment process is already initiated for filling up of 341 posts, the State Govt. has decided not to fill up the vacant posts remained under the advertisement dated 01.10.2021 and from the waist list of that recruitment process. It is also submitted that mere inclusion of the name of the candidates in the select list/wait list will not give any indefeasible right to the candidates to be appointed on the posts. Since the State Govt. has already

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initiated selection process and issued fresh advertisement for filling up of 341 posts and decided not to fill up the vacancy from the wait list, no direction can be issued to the respondent/State.

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8. Learned counsel for the respective petitioners would submit that rule 12(2) of Rules, 2021 clearly provides preparation of wait list of 25 percent of the posts from the real vacancies by following the rules of reservation. Although, it is not mentioned in rule 12(2) of Rules, 2021 that wait list should also be published, but in all fairness, it has to be published in consonance with rule 12(1) of Rules, 2021 that final merit list, if published, the wait list should also be published. The candidates have a right to know their position in the merit list or wait list so that they may claim their right, if any illegality or infirmity found in the list. Mere preparation of wait list and not publishing the same amounts to non preparation of wait list which is violative of rule 12(2) of the Rules, 2021. The candidate does not know whose name are there in the wait list and who are going to be picked up from the said wait list. Although, appointment from wait list is not indefeasible right of the petitioners or wait list candidates, but they have right to know about their position in the wait list. He would also submit that from the conjoint reading of rule 12(1) and (2) of the Rules, 2021, both these lists i.e. merit list as well as wait list are required to be published. The State has to show a reasonable ground for exercising their jurisdiction of non appointing the candidates of wait list if there was already posts vacant under the advertisement dated 01.10.2021. He would rely upon the judgment passed by Hon’ble Supreme Court in Vivek Kaisth and

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Another Vs. State of Himachal Pradesh & Others, 2024 (2) SCC 269.

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9. Per contra, learned counsel for the State opposing the submissions made by the counsel for the petitioners would submit that rule 12(2) of Rules, 2021 does not provide publication of wait list. The only list to be published is the select list as provided under rule 12(1) of the Rules, 2021. Rule 12(2) of the Rules, 2021 provides only preparation of select list which the respondent authorities have prepared. He would refer to document Annexure R/1 dated 04.11.2024 which discloses that under the provisions of rule 12(2) of the Rules, 2021, the wait list of 25 percent of total advertised post have been prepared after following the reservation guidelines. The petitioners have no indefeasible right to be appointed on the advertised post. The State Govt. has issued a fresh notification dated 21.10.2024 for appointment on the total 341 posts of Subedar/Sub Inspector/Platoon Commander and the State Govt. has decided not fill up the vacant posts remain unfilled under the advertisement dated 01.10.2021. He also submits that the select list was valid only for one year from the date of its issuance as provided under rule 13(3) of the Rules, 2021. The petitioners have made their application under Right to Information Act for disclosure of wait list on 24.12.2024 and in response to that it was disclosed that wait list is not published as provided under the relevant provisions of the Rules, 2021. The first appeal filed by the petitioners have also been disposed of on 29.01.2025 by the first appellate authority.

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10. I have heard the counsel for the parties and perused the material annexed with the writ petitions.

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11. The main grievance of petitioners in these writ petitions are that, the respondent authorities have not issued any wait list as provided under rule 12(2) of the Rules, 2021. Though the petitioners have also prayed for publication of final merit list irrespective of selection of candidates, however, looking to the documents annexed with the petitions, the merit list of selected candidates and combined merit wise list of all candidates have been published by the respondent department which has been annexed by the petitioners themselves as Annexure P/3. So far as preparation and publication of wait list is concerned, the Supreme Court in the matter of Vivek Kaisth (Supra) have considered the composition of wait list and its necessity, and observed in paragraphs 31 to 34 as under:

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“31. What constitutes a “waiting list” and what its purpose is has been explained by this Court in Gujarat State Dy. Executive Engineers’ Association (supra) as follows:

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“8. Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single

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post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.

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A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.”

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This was reiterated by this Court in Surinder Singh & Ors. v. State of Punjab & Anr. (1997) 8 SCC 488:

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“15. …….Candidates in the waiting list have no vested right to be appointed except to the limited extent that

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when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative.”

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In Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2 SCC 637, the practice of making appointments on future vacancies from the waiting list was held to be wrong.

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“12……..In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more”

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We are referring to the position of law on “waiting list” because one of the arguments of the appellants (in connected appeals) before us is that, since in any case there was a direction in Malik Mazhar-2 for having a “waiting list”, therefore the names of those two appellants ought to have been considered as names from the “waiting list”. In our opinion, this cannot be done, as the question would still remain whether selection/appointment can be made on vacancies, which were never advertised, apart from the fact that this would in any case go against the very concept of a ‘waiting list’ that we have explained above. The vacancies on which the appointments have been made could not be anticipated Para 12 at the time of advertisement (February 1st, 2013), and hence these vacancies were not advertised. These two vacancies were in fact, created on 18.03.2013 i.e., after the notification of vacancies on 01.02.2013. These were the “future vacancies”, which earlier could fall under the “C” category given in Malik Mazhar but were deleted in Malik Mazhar-2. These vacancies technically could only be filled next year and should have been notified by January 15th, 2014 as per the directions in Malik Mazhar. The argument of the appellants (in connected appeals), particularly against the present appellants, that had there been a waiting list they could have been considered for appointment in that category for these vacancies, in our opinion, is a complete misunderstanding of the concept of a “waiting list”.

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12. In view of the aforesaid judgment passed by the Supreme Court, it

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would be necessary to notice here rule 12 of the Rules, 2021 which reads as under :

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“12. List of candidates recommended by the Committee. (1) The Committee shall prepare and forward a list to the Appointing Authority, arranged in order of merit of the candidates who have qualified by such standards as may be determined by the Selection Committee and a list of candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes (Non-creamy-layer), who, though not qualified by such standard but declared by the Committee to be suitable for appointment to the service with due regard to the maintenance of efficiency in the administration. Lists so prepared shall also be published for information to the general public.

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(2) Subject to the provisions of these rules and the Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961, candidates shall be considered for appointment to the available vacancies in the order in which their names appear in the list. A waiting List of 25% of total posts shall also be prepared apart from the real vacancies by following the Rules of Reservation.

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(3) The inclusion of a candidate's name in the list confers no right to appointment unless the Appointing Authority is satisfied, after such enquiry as may be considered necessary, that the candidate is suitable in all respects for appointment to the Service.”

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13. There is a slight difference in rule 12(1) and rule 12(2) of the Rules, 2021. Rule 12(1) of Rules, 2021 provides merit list of qualified candidates and it has been provided that list so prepared shall also be published for information to the general public whereas, rule 12(2) of Rules, 2021 only provides that a wait list of 25 percent of total posts shall also be prepared apart from the real vacancy by following the rules of reservation. Merely non mentioning of publication of wait list does not preclude the State Govt. to publish the wait list. In all fairness and to follow the process of transparency, the wait list has to be published so that the candidate must know their position either in the merit list or in the wait list. Although the candidates are not having any indefeasible right to be appointed, but they have a right to know about their position in the merit list/wait list. It was for no use if the wait list was prepared and kept it undisclosed by the authority. In such a situation, no one can know what is there in the wait list and even whether such wait list was actually prepared or not. It is only disclosed in these cases that in compliance of rule 12(2) of Rules, 2021 wait list of 25 percent of total advertised post have been prepared after following the reservation guidelines. To the extent of publication of wait list, the petitioners have merit in their submissions that respondent authorities should have published a wait list so prepared in the case

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even if it has not been mentioned in specific word in rule 12(2) of Rules, 2021. No one was going to be prejudice even if wait list was published keeping in view the fact that participants have no indefeasible right to be appointed even if their name appeared in the merit list or wait list. Neither the candidates can claim appointment as a matter of right nor the State is bound to give appointment even if their names are find place in the wait list.

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14. So far as the relief claimed in the writ petitions that a direction be issued to the concerned respondent authority to publish vacancy on account of non joining or any other lapse of candidates, and to fill up the entire advertised posts from the advertisement dated 01.10.2021 is concerned, the advertisement merely amounts to invitation of application from qualified candidates for recruitment and on their selection, they do not have acquired any right to the post. The State has to take a decision whether or not to fill up the vacancies as advertised for the vacant posts. On 20.10.2024 the final merit list for appointment on 959 posts out to total 975 advertised posts were issued and out of them, some joined the post whereas some of them didn't. After date of their joining the State Govt. has decided to carry forward the vacant posts in subsequent advertisement dated 21.10.2024 and to close the appointment process of advertisement dated 01.10.2021 and has issued a fresh advertisement for 341 vacant posts of Subedar/Sub Inspector/Platoon Commander. The Rules, 2021 does not provide that respondent/department was duty bound to fill up the vacancy from wait list. In absence of any such mandate, the

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decision to fill up all the vacancies from the wait list is left to the wisdom of the State.

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15. The State has filed its return in WPS No.8595 of 2025 and in paragraph 10 of its return they have specifically mentioned that the fresh advertisement issued on 21.10.2024 for filling up 341 posts of Subedar/Sub Inspector/Platoon Commander are the independent and different posts from 975 posts for which the earlier advertisement was issued on 01.10.2021. It is necessary here to quote paragraph 10 of its return which reads as under:

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“10. That, in the instant petition the petitioner has challenged the issuance of fresh advertisement dated 21.10.2024, for filing up the 341 post of Subedar/SI/Platoon Commander, SI(SB). It is humbly submitted that the said 341 post are independent and different from the 975 posts earlier advertised in the year, 2021. Since the result of 2021 examination was already declared by the answering State and there were further vacancy in the department, therefore, for filing up the said vacancy the new advertisement was issued by the State Government. The 975 post advertised in the year, 2021 was separate from the 341 post advertised in the year, 2024 advertisement. Copy of the fresh advertisement dated 21.10.2024 is annexed herewith…..”

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16. In case of State of Karnataka & Others Vs. Bharathi S., 2023 SCC Online SC 665, the Supreme Court in paragraph 11 held as under :

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“11. The position of law is also clear. In Subha B. Nair & Other Vs. State of Kerala & Others, which has also been relied upon by the State, it has been held that:

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“8. A decision on the part of an employer whether to fill up the existing vacancies or not is within its domain. On this limited ground in the absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters.

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Similar view has also been expressed by this Court in K. Thulaseedharan v. Kerala State Public Service Commission, (2007) 6 SCC 190.

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The question as to whether there existed 7 vacancies or 16 vacancies in the aforementioned situation loses all significance. We would assume that as per the requisition, 9 more vacancies could be filled up but it is trite that if the employer takes a policy decision not to fill up any existing vacancy, only because a person's name is found in the

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select list, the same by itself would be a ground to compel the Bank to fill them up.”

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17. In the matter of “ Tej Prakash Pathak and Others v. Rajasthan High Court and Others” 2025 (2) SCC 1, it has been clarified by the Hon’ble Supreme Court that no indefeasible right of appointment has accrued in favour of the candidates. Simultaneously, it goes without saying that the action of the State should not be arbitrary, and decisions taken not filling the vacancies must be bona fide. The conclusion of the Constitution Bench of the Hon’ble Supreme Court in Tej Prakash (supra) case is made in para 42 that:-

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“42. We, therefore, answer the reference in the following terms:

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(1) Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;

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(2) Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness;

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(3) The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues;

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(4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, nondiscriminatory/non-arbitrary and has a rational nexus to the object sought to be achieved.

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(5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps;

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(6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.”

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17

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18. In the matter of “ All India SC & ST Employees Association and Another v. A. Arthur and Others ”, 2001 (6) SCC 380, the Hon’ble Supreme Court has said that:-

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“10. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash Vs. Union of India [1991 (3) SCC 47]. Para 7 of the said judgment reads thus :-

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It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana vs. Subhash Chander Marwaha [(1974) 3 SCC 220], Neelima Shangla vs. State of Haryana [(1986) 4 SCC 268] or Jatendra Kumar vs. State of Punjab [(1985) 1 SCC 122].”

¶123

19. Recently, the Hon’ble Supreme Court, in the matter of “ State of

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Assam v. Arabinda Rabha ”, AIR 2025 SC 1318, has held in para 54 and 55 that:-

¶125

“54. Any decision taken not to appoint despite there being vacancies and a valid select list, obviously, is in the nature of a policy decision. It has to be borne in mind that securing public employment is the dream of many, who put their heart and soul to prepare for it. Nowadays, aspirants undertake rigorous study sessions as well as training modules to equip themselves, which also comes at a heavy cost. That apart, since every process of recruitment necessarily involves substantial expenses which are borne from the public exchequer and at the same time the aspirants for the posts (who, as per their own

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18

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estimation, have performed sufficiently well and therefore stand a good chance of being appointed upon figuring in the select list) cherish fond hopes of a bright and secure future, the law is clear that the policy decision not to carry the process forward must be taken bona fide, there has to be justifiable reason if the process is abandoned mid-way, and such decision must not suffer from the vice of arbitrariness or the whims of the decision maker. This acts as a check on the employer's power deciding against not making any appointment from the select list despite availability of vacancy/vacancies on the advertised/notified public post(s). A writ court may, upon reaching the requisite satisfaction, intervene in such manner and make such directions as the facts and circumstances warrant. We, therefore, do not find it acceptable that the aspirants, not having an indefeasible or vested right of appointment, do not also have the right to question any decision adverse to their interest affecting achievement of their goals to secure public employment. Whether, and to what extent, any relief should be granted, must depend on the facts of each case.

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On facts and in the circumstances, however, the Respondents' legal rights were not infringed because of absence of grant of legitimacy to the select list by way of an approval from the Government; hence, the writ petition should not have been allowed.”

¶129

20. In the matter of “ State of Haryana v. Subhash Chander Marwaha ”,

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1974 (3) SCC 220, the Hon’ble Supreme Court has held that :-

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“11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College(") that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.”

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21. Considering the pleadings made in the writ petitions, the submissions advanced by the counsel for the parties and also considering the judgments of Supreme Court in the above referred cases, this court is of the considered opinion that the respondent authority can only be directed for publication of wait list, however, the candidates cannot claim as a matter of right to be appointed on the vacant post under advertisement dated 01.10.2021. Further, fresh advertisement has also been issued on 21.10.2024 and the candidates may participate in

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the fresh recruitment process under the said advertisement. Therefore, except the claim of publication of wait list, the other reliefs are rejected.

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22. Accordingly, all these writ petitions are partly allowed to the extent indicated hereinabove. No order asto costs.

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Sd/(Ravindra Kumar Agrawal) Judge

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inder

Jyoti Portey v. State of Chhattisgarh

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Jyoti Portey v. State of Chhattisgarh

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