Rajasthan High Court - Jodhpur
Om Prakash Gujrati vs State Of Rajasthan on 4 May, 2022
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 17145/2021
Om Prakash Gujrati S/o Shri Sampat Ram, aged about 38 Years,
R/o Indra Colony, Harsolao, Tehsil Merta City, District Nagaur.
----Petitioner
Versus
1. The State of Rajasthan through the Secretary, Home
Department, Government Of Rajasthan, Jaipur.
2. The Director General of Police, Jaipur.
3. The Inspector General of Police (Recruitments), Rajasthan
Jaipur.
4. The Commissioner of Police, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Khet Singh Rajpurohit.
For Respondent(s) : Mr. Kailash Choudhary on behalf of
Mr. Manish Vyas, AAG.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 04/05/2022 This writ petition has been filed by the petitioner seeking a direction to the respondents to consider the candidature of the petitioner under Ex-Serviceman category against the unfilled vacancy of Ex-Serviceman due to non-joining of a candidate pursuant to Constable recruitment vide advertisement dated 04.12.2019.
It is, inter-alia, indicated in the petition that for recruitment on the post of Constable General and Driver in TSP and Non-TSP area, whereby 27 posts in Commissionerate, Jodhpur, within which, three posts were reserved for Ex-Serviceman category vide advertisement dated 04.12.2019 were advertised, the petitioner submitted his online application form under the SC Ex-Serviceman (Downloaded on 04/05/2022 at 09:02:16 PM) (2 of 9) [CW-17145/2021] category. The competitive examination was held on 07/08/11.2020 wherein, the petitioner qualified and was subjected to PST/PET, which were also cleared by the petitioner. The respondents prepared a provisional merit list and the candidates were called for document verification and medical examination.
Under the Ex-Serviceman category, three candidates viz. S/Sh. Aidan Singh, Jaswant Singh and Jaheer Abbas Khan were included, based on their merit positions and the petitioner was merit position No.4. Based on the final merit list prepared, the respondents proceeded to accord appointment, whereby S/Sh. Aidan Singh and Jaswant Singh were accorded appointment but the third candidate Sh. Jaheer Abbas Khan failed to report for medical and as such, did not join. It is claimed that the petitioner received communication on phone to attend the office of Commissionerate, Jodhpur in relation to vacancy in Ex-Serviceman category.
Submissions have been made in the petition, inter-alia, indicating that despite the fact that one of the candidates in Ex- Serviceman did not join and the petitioner is at next merit position, he has not been accorded appointment, which is not justified and therefore, the relief prayed be granted.
A response to the writ petition has been filed by the respondents, inter-alia, indicating that out of 24 posts advertised, three posts were reserved for Ex-Serviceman category in Jodhpur Commissionerate. Final select list was issued on 18.05.2021 wherein, three candidates were selected in the Ex-Serviceman category, however, one of the candidates who was selected in Ex- Serviceman, did not appear for joining and as such, letters dated 10.06.2021, 02.07.2021, 22.07.2021 and 15.09.2021 were (Downloaded on 04/05/2022 at 09:02:16 PM) (3 of 9) [CW-17145/2021] issued, however, when candidate did not join, the appointment order was cancelled vide Annex.R/1. Where after, the Superintendent of Police, Recruitment and Promotion Board by order dated 20.10.2021 constituted review Board for filling two vacant posts due to non-joining of two candidates (Annex.R/2). It is then indicated that while the proceedings of review Board were pending, advertisement dated 29.10.2021 for recruitment for the post of Constable was issued by the Department, whereafter by order dated 10.11.2021 (Annex.R/3), the Board required that no further proceedings of review Board should be held. Further submissions have been made that the petitioner does not have any right to claim appointment on the basis of his name appearing in the merit list and, therefore, the petition deserves dismissal.
A rejoinder to the reply has been filed, inter-alia, claiming that as soon as the candidature of non-joining candidates in Ex- Serviceman category was cancelled by issuance of letter dated 30.09.2021, the right of the petitioner for consideration against the vacant Ex-Serviceman post accrued. Further submissions were made that it is not the case of the respondents that the post which became vacant, has been included in the subsequent advertisement and, therefore, the plea raised by the respondents has no basis, inasmuch as the posts, which remained unfilled due to non-joining of the candidates and cancellation of their appointment by order dated 30.09.2021 are till date vacant, as the same has not been included in the subsequent advertisement. Alongwith the rejoidner, copies of advertisement dated 29.10.2021 and corrigendum dated 08.11.2021, as Annex.6 and Annex.7, respectively have been filed.
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(4 of 9) [CW-17145/2021] Under the directions of the Court, requiring the respondents to place on record the bifurcation of the posts advertised for Constable Recruitment-2021 for Ex-Serviceman and indicate the total backlog included therein, an additional affidavit has been filed alongwith document Annex.R/4 with the submissions that an amended advertisement dated 18.04.2022 has been issued, whereby the vacancies of Ex-Serviceman have been increased from 43 to 47 for Jodhpur Commissionerate, which are inclusive of the reservation i.e. 12.5% of the total vacancies and backlog as per the provisions of the Rajasthan Civil Services (Absorption of Ex-Serviceman) (Amendment) Rules, 1988 (Rules of 1988). It is further indicated that the total advertised posts in Jodhpur Commissionerate are 374 and as per the reservation provided to Ex-Serviceman category, i.e. 12.5% of the total posts, 46 posts are reserved for Ex-Serviceman category and one post which remained unfilled due to non-joining of the selected candidate, is carried forwarded to Recruitment-2021 and, accordingly, 47 posts are now advertised for Jodhpur Commissionerate.
Learned counsel for the petitioner made submissions that the action of the respondents in not according appointment to the petitioner despite the fact that the petitioner is next candidate in the merit list on account of non-joining of one of the candidates in Ex-serviceman, is not justified. It was emphasized that from the advertisement dated 29.10.2021 (Annex.6) wherein, 43 posts were indicated for Ex-Serviceman, now it is apparent that the same did not include the post in question, inasmuch as during pendency of the present writ petition by issuing an amendment notification dated 18.04.2022 (Annex.R/4), the said post has been included for the Recruitment-2021 and as such, the denial of the (Downloaded on 04/05/2022 at 09:02:16 PM) (5 of 9) [CW-17145/2021] respondents to accord appointment to the petitioner is not justified and, therefore, the respondents be directed to accord appointment to the petitioner in Ex-Serviceman category pursuant to Recruitment-2019 with all consequential benefits.
Reliance has been place on Moola Ram vs. State of Rajasthan & Ors. : 2006 (2) WLC 513, Brijendra Singh & Ors. vs. State & Ors. : 2005 (3) RDD 397, R.S. Mittal vs. Union of India :
1995 SCC Supl. (2) 230, Ghanshyam Singh Rathore vs. The State of Rajasthan & Anr. : 2010 (3) WLC 443.
Learned counsel for the respondents vehemently opposed the submissions made. It was submitted that once a decision was taken at the Recruitment and Promotion Board level vide Annex.R/ 3 not to proceed with filling up the vacant posts pursuant to Recruitment-2019, as subsequent advertisement had been issued, the petitioner cannot claim any right qua the post, which remained vacant on account of selected candidate not joining. Submissions have been made that though in the initial advertisement dated 29.10.2021 for Recruitment-2021 (Annex.6) and amended advertisement dated 08.11.2021 (Annex.7) the said backlog post was not included in the posts meant for Ex-Serviceman, now by amendment dated 18.04.2022 (Annex.R/4), the mistake has been rectified, wherein the number of posts reserved for Ex-Serviceman have been brought in consonance with Rules of 1988, i.e. 12.5% and backlog of Recruitment-2019 has also been included, which action of the respondents cannot be faulted. It was reiterated that the petitioner merely on account of his inclusion in the merit list cannot claim any right to get appointment.
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(6 of 9) [CW-17145/2021] Reliance has been placed on Rakhi Ray vs. High Court of Delhi : (2010) 2 SCC 637 and State of Haryana vs. Subash Chander Marwaha : (1974) 3 SCC 220.
I have considered the submissions made by the counsel for the parties and have perused the material available on record.
The sequence of the events as has been noticed herein before indicates that out of three posts meant for Ex-Serviceman category, two candidates joined and one candidate did not join pursuant to order of appointment. The petitioner, who was placed at merit position No.4, is seeking appointment pursuant to the Recruitment-2019. The material produced by the respondents indicate that by order dated 20.10.2021 (Annex.R/2), after the candidature of the absentee candidate was cancelled on 30.09.2021 (Annex.R/1), a review Board was constituted by the Recruitment and Promotion Board, Jaipur for the purpose of undertaking the selection procedure. However, on 29.10.2021 a fresh advertisement (Annex.6) for Constable Recruitment came to be issued wherein, as many as 349 posts were advertised for Jodhpur Commissionerate and in all as many as 3536 posts throughout the State were advertised. In the column pertaining to Ex-Serviceman, a total of 544 posts for the State under the heading "Hkw-iw- lSfudksa gsrq cSdykWx inksa lfgr " were indicated wherein 43 posts were indicated for Jodhpur Commissionerate. The advertisement dated 29.10.2021 (Annex.6) came to be amended by notification dated 08.11.2021 (Annex.7) wherein though the total posts for Jodhpur Commissionerate and those meant for Ex- Serviceman including backlog remained at 43, apparently, as in the original advertisement, no posts were reserved for OBC, the said aspect was rectified.
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(7 of 9) [CW-17145/2021] Based on the advertisement dated 29.10.2021 (Annex.6), it appears that the Recruitment and Promotion Board, Jaipur took a policy decision resulting in passing of order dated 10.11.2021 (Annex.R/3), which inter-alia reads as under:
"fo"k; %& dkWULVscy HkrhZ&2019 ds lEcU/k esa egksn;] fo"k;kUrxZr dkWULVscy HkrhZ&2019 ds p;fur vH;fFkZ;ksa esa fu;qfDr ds vfuPNqd@vU;= fu;ksftr ,oa fofHkUu dkj.kksa ls vik= vHk;fFkZ;ksa ds dkj.k fjDr jgs inksa ij fofHkUu ftyksa@;wfuVksa }kjk fjO;w dh dk;Zokgh fd;k tkuk izf Ø;k/khu gSA bl dk;kZy; }kjk dkfuLVscy HkrhZ&2021 dh foKfIr Øekad 2305 fnukad 29-10-2021 tkjh dh tk pqdh gSA vr% mDr lEcU/k esa funsZ'kkuqlkj fuosnu gS fd dkfuLVscy HkrhZ&2019 ds fjDr jgs inksa dh iwfrZ gsrq fjO;w cksMZ dk xBu fd;k x;k gS vFkok mDr frfFk ls iwoZ fjO;w cksMZ dk xBu fd;k x;k gS fdUrq fjO;w dh dk;Zokgh fd;k tkuk visf{kr gks rks fjO;w dh dk;Zokgh ugha dh tkosA"
A perusal of the above would indicate that the Board, based on the instructions, indicated that after issuance of the advertisement dated 29.10.2021, if any review Board for filling up the vacant post pursuant to Constable Recruitment-2019 is to be constituted, or if the review Board has been constituted before 29.10.2021, however, the proceedings of the review were contemplated, the proceedings for review be not held.
The said decision, apparently was prompted on account of the fact of issuance of a fresh advertisement for recruitment of Constable and the fact that unfilled posts/backlog posts had already been included in the fresh advertisement. The above aspect regarding the inclusion of backlog post/intention to include the backlog posts is apparent from the title of the column pertaining to Ex-serviceman reservation in the advertisement dated 29.10.2021, as quoted herein before, i.e. " Hkw-iw- lSfudksa gsrq cSdykWx inksa lfgr".
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(8 of 9) [CW-17145/2021] It is true that 43 posts, which were initially indicated in the advertisement for Ex-serviceman category in the advertisement dated 29.10.2021 for Jodhpur Commissionerate, on account of persistent orders passed by this Court, seeking clarification from the respondents this regard, the backlog post was not included. However, the said non-inclusion as well as the provision for Ex- serviceman in the advertisement came to be rectified during pendency of this petition by amendment dated 18.04.2022 (Annex.R/4) wherein instead of 43 posts, 46 posts as 12.5% of 347 posts have been indicated and one backlog post, subject matter of the present writ petition, also has been included and now there are 47 posts 'including the backlog' in the Recruitment- 2021 for Ex-serviceman category.
Once a policy decision for the entire State had been taken by the respondents not to go ahead with the proceedings of the review Board for filling up the vacant posts on account of issuance of a fresh advertisement for recruitment, which apparently included the unfilled posts/backlog posts, which fact, as noticed herein before, is apparent from the heading of the column meant for Ex-serviceman, no fault can be found in the decision taken by the respondents in this regard. The mere fact that in the present case on account of apparent mistake/omission, the present backlog post for Ex-serviceman was not included in the initial advertisement dated 29.10.2021 and the said mistake has now been rectified by issuance of the amendment dated 18.04.2022 (Annex.R/4), in absence of any malafides on the part of the respondents, the action of the respondents cannot be faulted.
Much emphasis was laid by the counsel for the petitioner that in the advertisement dated 29.10.2021 the post in dispute was (Downloaded on 04/05/2022 at 09:02:16 PM) (9 of 9) [CW-17145/2021] not included despite the title indicating inclusion of backlog posts, which aspect has been established during the present proceedings, however, the said aspect is not sufficient for this Court to come to a contrary conclusion, inasmuch as on account of apparent mistake on the part of the respondents despite taking a policy decision not to fill up the vacant posts pertaining to Recruitment-2019 and including the same in the Recruitment- 2021 alongwith backlog post for Ex-Serviceman, the petitioner cannot claim any right in his favour, besides the fact that mistake now stands rectified by issuance of amendment dated 18.04.2022 (Annex.R/4).
So far as the judgments cited by the counsel for the petitioner are concerned, though the same pertain to the cases wherein the unfilled vacancies were directed to be filled up based on the merit and it was held that appointment cannot be denied without justifiable reason, none of the cases cited pertain to the circumstances similar to the present case i.e. where on account of issuance of subsequent notification, which included unfilled vacancies/backlog vacancies, the directions were given for filling up of the unfilled/backlog posts from the candidates who stood in the merit in the previous recruitment. As such, the said judgments have no application to the present case.
In view of above discussion, keeping in view the policy decision of the respondents, no case for interference is made out in the writ petition, the same is therefore, dismissed.
(ARUN BHANSALI),J DJ/-
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