Rajasthan High Court - Jaipur
Dr. Krishan Joshi vs State on 26 September, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.5718/1998
1. Dr. Shri Krishan Joshi, Son Of Shri Kailash Chandra Joshi,
Village Gandala, Tehsil Behror, District Alwar
2. Dr. Shri Mohan Sharma, Son Of Shri Ram Narain Sharma,
Jawahar Bazar, Tonk, At Present Residing At Plot No. 64,
Gopi Nagar, Sanganer Jaipur
----Petitioners
Versus
1. State Of Rajasthan Through The Deputy Secretary Admn.,
Govt. Secretariat, Jaipur
2. The Secretary, Ayurved Department, Govt. Of Rajasthan,
Jaipur
3. The Director, Ayurved Department, Government Of
Rajasthan, Ajmer
4. Rajasthan Public Service Commission, Ajmer
5. Dr. Surendra Kumar, Son Of Shri Raghuvir Singh Gothwal,
Posted Under District Chief Medical And Hea, Alwar,
District Alwar
6. Dr. Babu Lal Meena, Son Of Shri Tulsi Ram Meena, Posted
At Bambori, District Bundi
----Respondents
For Petitioner(s) : Mr. Ashwini Jaiman For Respondent(s) : Mr. Hari Kishan Saini, Dy.G.C. Mr. M.F. Baig - for RPSC HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA JUDGMENT RESERVED ON 19.09.2019 JUDGMENT PRONOUNCED ON 26.09.2019 Brief facts which require to be noted for the purpose of ascertaining the issues involved and for deciding the same, are being noted.
(D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (2 of 13) [CW-5718/1998] An advertisement was issued by the RPSC on 05.08.1996 inviting applications for appointment on the post of Homeopathy Chikitsak. The selection process was completed and after the interviews were over, the select list was issued on 03.10.1997 wherein 27 candidates were placed in the main list which included respondent Nos.5 and 6 who were placed at Serial Nos.25 and 26 in the select list. One of them belonging to SC and other from ST category. Along with select list, a reserve list was also published on the same date which contains 14 names. Name of the petitioner-Dr. S.K. Joshi was placed at Serial No.1 in the waiting list while petitioner No.2 was placed at No.3. The select list was operated, however, the respondent Nos.5 and 6 did not join the services as direct recruitees. It has come on record that both the respondents had been earlier working as Junior Homeopathic Chikitsak and upon having been screened on promulgation of the Rules, were regularised on the post and were screened by the State Government vide its order dated 8 th December, 1998. They were treated as regularly appointed on the post of Homeopathic Chikitsak from the date of initial appointment thus placed over and above those direct recruitees, who were selected through aforesaid advertisement.
The petitioners by way of this writ petition claim two aspects. Firstly, that the number of vacancies which were advertised were less than actual vacancies available for direct recruitment and therefore, the select list which was prepared was illegal, arbitrary and unreasonable. The names of the petitioners ought to have been included in the main list as there were in all 33 posts available for direct recruitment for the post of Homeopathic (D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (3 of 13) [CW-5718/1998] Chikitsak. The petitioners have relied on the letter dated 23 rd July, 1998.
Alternatively, the petitioners claim their consideration for appointment as they were placed in the reserve list and candidates of the main list have not joined. It is submitted that their names were wrongly mentioned as they were already in service and were regularised and confirmed on their post vide order dated 13th November, 1990 as Junior Homeopathic Chikitsak re-designated as Homeopathic Chikitsak after promulgation of Rules and were therefore required to be treated as on strength of service after promulgation of the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service Rules, 1973 and, therefore, there was no occasion to have called them for interview and included their names in the select list at Serial Nos.25 and 26.
Learned counsel submits that there was no SC and ST candidate placed in the waiting list and as the respondent Nos.5 and 6 were not available for filling up SC and ST post, the same was required to be filled by normal course from the general candidates available in the reserve list and the petitioners being available, they should have been offered appointment on the post of Homeopathic Chikitsak.
The RPSC in its reply submitted that reserve list where names of the petitioners stood had expired on 15th April, 1998 as select list was sent for recommendation to the State Government on 16th October, 1997 and six months expired on 15 th April, 1998, therefore, petitioners had no claim for operating the reserve list and therefore, as no name was called by the State Government (D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (4 of 13) [CW-5718/1998] from the reserve list, hence, the petitioners do not have any rightful claim for appointment.
Reply has also been filed by the State wherein it is stated that respondent Nos.5 and 6 have been selected by the RPSC although it admits that they were regularised. However, it is stated that there was no bar for the regularised Chikitsak to participate in the selection and therefore, there is no illegality in including the names of respondent Nos.5 and 6 in the select list. While it is not denied with regard to determination of vacancy, it is stated by the respondents that even if there were posts lying with the State Government, these posts shall be filled as soon as possible. However, no right is created in favour of the petitioners. Learned counsel submits that selections have been conducted thereafter and now after lapse of several years, no claim exists on the post even if it was vacant at that point of time.
In rejoinder, the petitioners have pointed out that one SB Civil Writ Petition No.6702/1997 filed by Dr. Kamal Narayan Gupta challenging the appointment which was made under the advertisement was filed wherein stay was granted on 5 th January, 1998 and was dismissed by the court on 20 th April, 1998. The appointment orders were thereafter issued thus period of six months would not operate as against the petitioners. It is stated that by that time, appointment orders were issued on 22 nd April, 1998. The amendment had already been made in the Rules of 1973 screening and seniority benefit to Homeopathic Chikitsak like respondent Nos.5 and 6 and therefore, there was no occasion to have issued appointment orders for respondent Nos.5 and 6. Be that as it it may, since petitioners were in the reserve list, they (D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (5 of 13) [CW-5718/1998] were, therefore, required to be called for consideration for appointment.
It is further submitted that one post was also additionally created by the department on 1 st August, 1998 which ought to have also been included. An additional affidavit has been filed by the respondent-State on 3rd October, 2016 mentioning that posts which fell vacant on account of non-joining of respondent Nos.5 and 6 were treated as backlog posts and same were filled by the RPSC subsequently. A letter issued by the Assistant Director, Directorate Homeopathic Chikitsak Department on 4 th July, 2016 has also been placed on record to submit that all the posts of SC and ST have been filled.
Learned counsel appearing for the petitioners submits that on account of non-joining of the candidates from the main list, the posts in that regard were required to be filled by normal method and relies on the judgment passed by the Division Bench of this court in the case of Rajasthan Public Service Commission Vs. Yashwant Kumar & 3 Ors., reported in 2011 (2) RLW 1383 wherein on an identical issue, the court directed to fill 54 unfilled reserved vacancies by candidates from open category.
Learned counsel further relies on another judgment passed in Rajasthan Public Service Commission Vs. Alka Agarwal & ors., DB Special Appeal (Writ) No.988/2016, decided on 2 nd November, 2017 wherein the Division Bench relying on the judgment of Supreme Court in the case of J&K & Ors. Vs. Sat Pal, reported in 2013 (11) SCC 737 held that waiting list shall commence to operate after vacancies from the main list have not been filled. (D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (6 of 13) [CW-5718/1998] The validity of the waiting list would commence from the date, the appointment was offered to candidates from the main list.
Learned counsel has relied on the judgment of this court in the case of Purushottam Vs. Chairman, MSEB, reported in 1999 SCC (L&S) 1050 to submit that on account of fault of the respondents, the right of a candidate cannot be stifled. Learned counsel thus submits that petitioners who had filed writ petition in the year 1998 itself, have right to claim appointment.
I have considered the submissions.
As regards determination of posts are concerned, it is submitted that the State Government had requisitioned for 27 posts only and therefore, the submission of the petitioners that number of posts ought to have been treated as 33 instead of 27 is not made out.
The next aspect which requires determination is whether petitioners had a legal right for claiming appointment on the post of Homeopathic Chikitsak after lapse of so many years due to pendency of the writ petition. In the case of Purushottam Vs. Chairman, MSEB, the Supreme Court has held as under:
"4. In view of the rival submission the question that arises for consideration is whether a duly-selected person for being appointed and illegally kept out of employment on account of untenable decision on the part of the employer, can be denied the said appointment on the ground that the panel has expired in the meantime. We find sufficient force in the contention of Mr. Deshpande appearing for the appellant inasmuch as there is no dispute that the appellant was duly selected and was entitled to be appointed to the post but for the illegal decision of the screening committee which decision in the meantime has been reversed by the High Court and that decision of the High Court has reached its finality. The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has (D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (7 of 13) [CW-5718/1998] in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant's right to be appointed to the post has been illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the Maharashtra State Electricity Board to appoint the appellant to the post for which he was duly selected within two months from today. We make it clear that appointment would be prospective in nature."
In another case of Kudrat Ali Vs. Municipal Council, Bhilwara & Ors., reported in 2007 (1) WLC 90, the Division Bench examined the issue where the issue remained pending for decision before this court for a long time. It was held as under:
"9. These facts, which have not been noticed by the learned Single Judge, clearly go to show that the finding that the writ petition has been filed 15 years of publication of seniority list suffers from gross laches was unfounded. Perhaps 15 years period was also taken into consideration by including the period during which the petition had remained pending hearing before this court. The writ petition was decided in the year 2000 but the same has been filed in 1992 and the delay of 15 years has been taken into consideration with reference to the date when the matter was being heard and decided. Apparently, 8 years' period during which petition could not be heard by this court, could not be part of laches, if any, attributed to the petitioner-appellant."
Thus on the basis of above, this court holds that petitioners' right for claiming relief still continues and merely because of the pendency of this writ petition for almost 20 years now, would not take away their right for claiming relief if they are otherwise found entitled to the same.
The question which requires to be examined is with regard to the operation of waiting list. The reserve list is required to be prepared by the RPSC under the Rules of 1973 for 50% of the post for which select list is prepared and the same is required to (D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (8 of 13) [CW-5718/1998] be sent to the State Government if requisitioned within six months from the date the select list has been sent. If time laid down in the rule is to be followed in each case after six months reserve list would expire. However, in the present case, it is to be noted that while RPSC sent the select list on 16 th October, 1997. The High Court had stayed the operation of the select list vide its order dated 5th January, 1998 in Writ Petition No.6702/1997 and the stay was vacated on 20th April, 1998 upon dismissal of the writ petition.
The select list would be treated to operate by issuing appointment order on 22nd April, 1998. In the case of J&K & Ors. Vs. Sat Pal (supra), it was held as under:
"11........A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate, when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up. In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil) Grade-II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not assumed charge, one of the posts for which the process of recruitment was conducted, had remained vacant. That apart, even if it is assumed for arguments sake, that all the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil) Grade-II on 22.4.2008. The aforesaid offer was made, consequent upon his selection in the said process of recruitment. The validity of the waiting list, in the facts of this case, has to be determined with reference to 22.4.2008, (D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (9 of 13) [CW-5718/1998] because the vacancy was offered to Trilok Nath on 22.4.2008. It is the said vacancy, for which the respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23.8.2011 (extracted above), that the waiting list was valid till May, 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the unquestionable legal position, in so far as the present controversy is concerned.
12. The date of filing of the representation by the parties concerned and/or the date on which the competent authority chooses to fill up the vacancy in question, is of no consequence whatsoever. The only relevant date is the date of arising of the vacancy. It would be a different legal proposition, if the appointing authority decides not to fill up an available vacancy, despite the availability of candidates on the waiting list. The offer made to Trilok Nath on 22.4.2008 by itself, leads to the inference that the vacancy under reference arose within the period of one year, i.e., during the period of validity of the waiting list postulated by the rules. The offer of the vacancy to Trilok Nath, negates the proposition posed above, i.e., the desire of the employer not to fill up the vacancy. Herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy, over and above the posts for which the process of selection/ recruitment was conducted. Based on the aforesaid inference, we have no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal, against the vacancy which was offered to Trilok Nath."
Keeping in view the aforesaid judgment, this court finds that petitioners have right to claim appointment against waiting list as waiting list shall require to be operated after offer had been given to the respondent Nos.5 and 6 on 22 nd April, 1998 moreso as both the respondent Nos.5 and 6 were screened and later on (D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (10 of 13) [CW-5718/1998] regularised on the post w.e.f. 1989 itself, the State Government was not required even to offer said post to the respondent Nos.5 and 6 and ought to have called names from reserve list.
In Rajasthan Public Service Commission Vs. Yashwant Kumar & 3 Ors. (supra), the Division Bench held as under:
"10. Perusal of the sub-rule (4) shows that unfilled reserved vacancies of aforesaid and in the light of the affidavit submitted by the appllant in these appeals, it becomes clear that at least 54 unfilled vacancies should have been filled up by normal procedure. The appellants herein have failed to do so, thus their action becomes in violation of the Rules more so when the State Government issued an administrative order on 2.6.2004 clarifying the position that if any reserved vacancy is of the period prior to 10.10.2002, then has to be tilled up as per the unamended rules. In the light of aforesaid, the action of the respondents has to be declare as illegal. It is a case where only 38 selected candidates exist in order of merit as against 54 unfilled reserved vacancies, thus in our considered opinion, the respondents were under and obligation to include 54 candidates in the main list to be tilled up by normal procedure and if equivalent number of selected candidates are not available and it is only 38 candidates have qualified the selection then all of them should have been delat with as per procedure provided for filling up the vacant posts of a period prior to 10.10.2002. The appellants now cannot asked for perpetuation of their illegality on the ground that few petitioners approached this Court after the first judgment. It is not a case of absence of clarification by Government regarding application of amended rules, thus action of the appellants cannot be said to be bona fide denying relief to the petitioner filed writ after first judgment. The Government had issued clarification in the year 2004 itself i.e. much prior to declaration of the result, thus appellants failed to carry out their action as per the rules and clarification given by die Government itself.
11. Since the first issue has been decided holding that the petitioners-respondents, rather 38 candidates, should have been placed in the main list, question of a direction to operate reserve list does not exist so as the ground that this Court has given direction to operate reserve list after its expiry. Perusal of the judgment of the learned Single Judge does not show the aforesaid. Thus, argument of the appellants is not applicable to the facts of this case. This is more so when even learned Single Judge had observed that petitioners should have been included in the main list. The argument of the appellant could have been appreciated if their main ground of challenge would have been found factually correct, holding all 77 vacancies of a period subsequent to amendment. The main ground taken by the appellants in all these appeals is that unfilled 77 reserved vacancies are of a period subsequent to 10.10.2002. Aforesaid ground got demolished by the appellants themselves in view of the affidavit of their own officer. This Court directed appellants to file an affidavit showing details of year-wise vacancies and other relevant facts. This was precisely to verify factual aspect (D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (11 of 13) [CW-5718/1998] and now on verification, it has come that 54 unfilled reserved vacancies are of a period prior to 10.10.2002. The main ground urged by the appellants in their appeals goes contrary to the facts at least to the extent of 54 unfilled reserve vacancies. Now, herein a case where only 38 selected candidates exist, who should have been shown in the main list, if the appellants would have acted in accordance with the rules, more specifically, as per clarification by the State Government through its circular dated 22.6.2004. Thus, due to default on the part of the appellants to carry out their action as per rules cannot be to the disadvantage of any candidate, who is otherwise eligible for right of consideration for appointment."
In the case of Inturi Rama Rao Vs. Union of India, reported in (2015) 13 SCC 374, the Supreme Court directed the candidate placed at Serial No.1 in waiting list for appointment as Accountant Member after candidates who were placed in the main list were not cleared by vigilance and held as under:
"9. However, taking the aforesaid order as it is, what we find is that notwithstanding the statement made on behalf of the Union of India before this Court that vacancies in the future will be made only after the amendments in the Rules are carried out, the Union of India has initiated a process to make further appointments without amending the Rules. If persons eligible under the then existing Rules which are in force even today are to be considered for appointment, surely, the petitioner, who is a wait-listed candidate, will also have to be considered for appointment by consideration of his entitlement for appointment as in the year 2007 when the appointments on the main list were made and the two vacancies arose giving rise to the issue of operation of the waiting list. What follows from the above is that even accepting the order dated 17-11-2011 passed by this Court in Union of India v. Pradip Kumar Kedia, in view of the subsequent facts and events that have occurred, namely, action of the Union of India in resorting to a fresh process of selection and appointment without amendment of the Rules, the right of the petitioner to be considered for appointment on the basis of his position in the waiting list has once again come to fore which needs to be resolved by an appropriate order."
(D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (12 of 13) [CW-5718/1998] In the case of Ghanshyam Singh Rathore Vs. State of Rajasthan, reported in 2010 (2) WLC 443, the Coordinate Bench of this court has held as under:
"17. The respondents, in the present case, having advertised 54 vacancies, called 54 candidates for Interview and, out of them, two did not offer themselves for appointment; there was no conscious decision of the respondents not to fill up the advertised vacancies; rather conduct of the respondents reflect that they decided to fill up all the advertised vacancies, when two vacancies remained unfilled on account of two candidates having not offered themselves for appointment and despite the claim made by the petitioner to give him appointment there against, action of the respondents not to give him appointment cannot be approved in law. The petitioner in the present case, when he came to know about appointment only of 52 candidates against 54 advertised vacancies and that he was placed at Serial No.1 in the waiting-list, is right in claiming the appointment against the unfilled vacancies. The factor that he approached this Court within 4 days after making representation by him to the respondents, cannot be taken against him; more-so, since the petitioner within two-and-a-half months of the appointments, approached this Court and his writ petition was entertained. Mere expiry of the waiting-list during pendency of the writ petition, the validity period whereof was six months, also cannot be taken as a factor against him if the writ petition was not decided within that time. Even then his rights will have to be determined on the basis of law and facts as available on the day on which the writ petition was filed.
18. In the result, this writ petition is allowed. The respondents are directed to appoint the petitioner on the post of Village Level Workercum-Ex-Officio Secretary of Gram Panchayat, making it effective from the date of appointment of other candidates vide order dated 13/14.01.1997; he shall, however, be placed at the bottom of seniority and treated junior most in that batch, below all other appointed candidates pursuant to the selection, in question. The petitioner would, however, be entitled only to notional benefits for the intervening period."
Thus upon the post having fallen vacant on account of non- joining of the SC and ST candidates namely; respondent Nos.5 (D.B. SAW/130/2020 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 10:09:00 PM) (13 of 13) [CW-5718/1998] and 6 who could not have been included at the first instance in the offer of appointment as they were already screened, the post would be treated to be required to be filled from reserve list. The submission of the respondents on having filled backlog vacancies and by filing an affidavit in 2016 would not in any manner affect their right as the rule operates for treating the SC and ST unfilled vacancies to be included in the subsequent recruitment year. Accordingly, even if said vacancy in the subsequent year has been filled as per backlog vacancy, in the earlier recruitment year i.e. of the year 1996-97 two posts would be treated as having fallen vacant for being filled up in normal course as there was no other SC and ST candidate available. Since petitioners fall at No.1 and 3 in the reserve list (candidate No.2 has not approached this court), both the petitioners are entitled for consideration for appointment on the post of Homeopathic Chikistak from the date vacancy had fallen vacant.
Both the petitioners' candidature shall be considered for appointment under the select list of the year 1997 as published by the RPSC and shall be given all consequential benefits of seniority. However, the service shall be treated as notional for all purposes as well as for notional fixation of salary, actual benefit only be given from the date of appointment. The exercise aforesaid shall be conducted within a period of one month from today.
In view of the above, this writ petition is accordingly allowed.
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