Rajasthan High Court - Jaipur
Vinod Kumar Gupta S/O Shri Kailash Chand ... vs The State Of Rajasthan on 21 May, 2019
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5694/2019
1. Vinod Kumar Gupta S/o Shri Kailash Chand
Gupta, Aged About 36 Years, R/o K.c. Medical
Store Krishna Takij Ke Samne, Tehsil Kotputli,
Distt. Jaipur (Raj.).
2. Babulal S/o Ramlal, Aged About 33 Years, R/o
Village Kurken, Post Padalwas, Tehsil Nagar,
Distt. Bharatpur (Raj.).
3. Parshu Ram Meena S/o Shri Shivraj Meena,
Aged About 26 Years, R/o Village Syawata,
Post Kanwara, Tehsil Dooni, Distt. Tonk
(Raj.).
4. Ajeet Kumar Meena S/o Shri Kailash Chand
Meena, Aged About 23 Years, R/o Village
Dumeda, Post Dera Bamanwas, Tehsil
Thanagazi, Distt. Alwar (Raj.).
5. Sunil Kumar Meena S/o Shri Ratti Ram
Meena, Aged About 25 Years, R/o Village And
Post Gambhira, Tehsil Nainwan, Distt. Bundi
(Raj.).
6. Balveer Meena S/o Shri Prabhati Meena, Aged
About 31 Years, R/o Village And Post Pinan,
Tehsil Raini, Distt. Alwar, Opp. Govt. Sr.
Secondary School Pinan Alwar (Raj.).
7. Mahendra Kumar Meena S/o Shri Bhanwar
Singh Meena, Aged About 26 Years, R/o
Vijaygarh, Tehsil Hindoli, Distt. Bundi (Raj.).
8. Sher Singh Meena S/o Shri Bodu Ram Meena,
Aged About 30 Years, R/o Village And Post
Markhi, Via Amrsar, Tehsil Shahpura, Distt
Jaipur (Raj.).
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9. Rachana Kuntal D/o Shri Fateh Singh, Aged
About 26 Years, R/o Village And Post Rarah,
Distt. Bharatpur, Tehsil Kumher, Distt.
Bharatpur (Raj.).
10. Raman Lal Meena S/o Shri Laxman Singh
Meena, Aged About 36 Years, R/o Village
Unapur, Post Jeevad, Tehsil Weir, Distt.
Bharatpur (Raj.).
11. Subhash Chander S/o Shri Lal Chand, Aged
About 26 Years, R/o Ward No. 10, Sangaria,
Tehsil Sangaria, Distt. Hanumangarh (Raj.).
12. Rajesh Kumar Meena S/o Shri Sant Kumar
Meena, Aged About 34 Years, R/o Village And
Post Inderpura, Tehsil Deoli, Distt. Tonk (Raj.)
13. Mukesh Chand Meena S/o Shri Kishori Lal,
Aged About 34 Years, R/o Village And Post
Salempur Khurd, Tehsil Bhusawar, Distt.
Bharatpur (Raj.).
14. Dinesh Kumar S/o Shri Ramswaroop, Aged
About 30 Years, R/o Village And Post
Manaksar, Tehsil - Suratgarh, Distt.
Sriganganagar (Raj.).
15. Manram Meena S/o Shri Ramphool Meena,
Aged About 30 Years, R/o Village And Post
Mehandwas, Tehsil And Distt. Tonk (Raj.).
16. Manoj Meena S/o Shri Baaluram, Aged About
23 Years, R/o Village Balapura, Post Simliya,
Tehsil Mangrol, Distt. Baran (Raj.).
17. Mahendra Kumar Meena S/o Shri Gabura
Ram Meena, Aged About 30 Years, R/o Village
Pachar, Via Khachariyawas, Tehsil
Dantaramgarh, Distt. Sikar (Raj.).
18. Sunil Chobya S/o Shri Ramanuj Chobya, Aged
About 34 Years, R/o Sukh-Sadan, Mayala
Bazar, Sayall, Distt. Nagaur (Raj.).
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19. Ram Lal S/o Shri Mohan Lal, Aged About 23
Years, R/o Paliwalo Ka Bas, Chandasani, Post
Chopra, Tehsil Sojat City, Distt. Pali (Raj.).
20. Narendra Dutt Shukla S/o Shri Vishnu Dutt
Sharma, Aged About 23 Years, R/o Gram Post
- Katkad, Tehsil Hindaun, Distt. Karauli (Raj.).
21. Rajesh Sharma S/o Shri Radhey Shyam, Aged
About 36 Years, R/o Near New Telephone
Exchange, Mohan Nagar, Hindaun City, Distt.
Karauli (Raj.).
22. Jaysingh Meena S/o Shri Jagmohan Meena,
Aged About 23 Years, R/o Jhuthada Kalan,
Post Bajupura, Tehsil Baswa, Distt. Dausa
(Raj.).
23. Dilip Labana S/o Shri Popat Lal Labana, Aged
About 24 Years, R/o 564 Bich Kindi,
Dhundhriya, Pnawara, Distt. Dungarpur
(Raj.).
24. Amrit Lal Parmar S/o Shri Udaji Parmar, Aged
About 38 Years, R/o Village And Post Tijwad,
Distt. Dungarpur (Raj.).
25. Arvind Katara S/o Shri Heera Katara, Aged
About 36 Years, R/o Village And Post
Rastapal, Distt. Dungarpur (Raj.).
26. Man Singh Meena S/o Shri Shoji Ram Meena,
Aged About 31 Years, R/o Village And Post
Rawatkhera, Tehsil Jahazpur, Distt. Bhilwara
(Raj.).
27. Sunil Kumar Meena S/o Shri Surgyan Meena,
Aged About 24 Years, R/o Village And Post
Kanchanpur, Tehsil Shrimadhopur, Distt. Sikar
(Raj.).
28. Jagatpal S/o Shri Ranjeet Singh, Aged About
30 Years, R/o Ward No. 10, Daulatpura, 3Q,
Ganganagar (Raj.).
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----Petitioners
Versus
1. The State Of Rajasthan, Through Its Principal
Secretary, Animal Husbandry And Dairy
Department, Govt. Of Rajasthan, Secretariat,
Jaipur.
2. Director, Animal Husbandry And Dairy
Department, Govt. Of Rajasthan, Pashu Dhan
Bhawan, Tonk Road, Jaipur.
3. Rajasthan Staff Selection Board, Through Its
Chairman, Rajasthan Agriculture Management
Institute Premises, Durgapura, Jaipur.
4. The Principal Secretary, Department of
Personnel, Govt. Secretariat, Jaipur
For Petitioner(s) : Mr. Vigyan Shah, Mr. Kamlesh
Sharma, Mr. Rajaram
Choudhary,
Mr. Akshit Gupta, Mr. Pukhraj
Chawal
For : Mr. M.S. Singhvi, A.G. with
Respondent(s) Mr. Raunak Singhvi, Mr. Daksh
Pareek Mr. S.S. Raghav, AAG Mr. C.L. Saini, AAG Mr. Nitin Jain, Mr. Akshay Sharma HON'BLE MR. JUSTICE ALOK SHARMA Order Date of Order :: 21st May, 2019 (Downloaded on 29/06/2019 at 02:59:18 AM) (5 of 37) [CW-5694/2019] The petitioners have challenged the Department of Personnel (DOP) Circular dated 26.4.2018 insofar as it obstructs their appointment as Live Stock Assistants (hereafter 'the LSAs') under the Rajasthan Animal Husbandry Subordinate Service Rules, 1977 (hereafter 'the Rules of 1977') despite their being in the waiting list and vacancies being available on the post advertised on 28.6.2016 and 22.7.2016 for the TSP and non TSP areas respectively.
The case of the petitioners is that pursuant to the advertisements in issue, they applied and were admitted to written examination conducted on 21.8.2016 by the Rajasthan Staff Selection Board (hereafter 'the Board') on behalf of the State Government. The result of the said examination was declared on 8.10.2016 and revised on 8.6.2017 on account of quashing of the Special Backward Class (hereafter 'the SBC') reservation by the Division (Downloaded on 29/06/2019 at 02:59:18 AM) (6 of 37) [CW-5694/2019] Bench of this Court vide its judgment dated 9.7.2016 in the case of Cap. Gurvinder Singh & Ors. Versus State of Rajasthan & Ors. - D.B. Civil Writ Petition No. 1645/2016. The revised result was provisional in nature subject to document verification of selected candidates as to their eligibility for the post in issue. Documents verification was then done and appointment orders of those in the main select list issued by the appointing authority in a truncated manner beginning 6.8.2017 and thereafter on 12.8.2017, 11.9.2017, 3.10.2017, 18.12.2017, 23.1.2018, 2.4.2018, 7.5.2018 and 5.7.2018.
The reserve list was then also issued on 5.7.2018 under the proviso to Rule 20 of the Rules of 1977.
The petitioners state that prior to all
appointments under the main select list and
notification of the reserve list, the respondents
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initiated a fresh selection process for recruitment of 2077 posts of LSAs (1833 posts for the Non TSP Areas and 244 posts for TSP Areas) vide advertisement dated 14.3.2018. When the subsequent advertisement dated 14.3.2018 was issued all appointments under the select list prepared with reference to the earlier advertisement dated 28.6.2016 had even not been made and even the reserve list mandatorily required under the proviso to Rule 20 of the Rules of 1977 not notified. In fact the recruitment process under the advertisement dated 28.6.2016 was underway. And this is so evident from the appointment of LSAs under order dated 7.5.2018 from amongst the successful candidates in the main select list following the advertisement dated 28.6.2016.
The petitioners case is that the respondent
- Animal Husbandry Department conscious of the aforesaid position of the integrity of the selections for (Downloaded on 29/06/2019 at 02:59:18 AM) (8 of 37) [CW-5694/2019] the post of LSAs underway following the advertisement dated 28.6.2016 sent a requisition on 15.5.2018 to the Board - respondent no.3 - for recommending the names of the next meritorious candidates for appointment against the available vacant posts of LSAs as advertised on 28.6.2016 for reason of non joiners amongst those in the main select list who had been offered appointment. The Board then notified the waiting list dated 5.7.2018 with reference to vacant posts of LSAs available against the non joiners. The petitioners were part of the said waiting list dated 5.7.2018 and called for documents verification vide order dated 6.7.2018. They then on their documents verified by the Board were found to be eligible for the post of LSAs and entitled to be appointed on the vacant posts as per their merit in the reserve list. The recommendations for their appointment were sent by the Board on 18.10.2018 to the appointing authority. (Downloaded on 29/06/2019 at 02:59:18 AM)
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The petitioners however were yet not
appointed. Instead correspondences ensued between the appointing authority and the DOP on the question whether the waiting list notified following the direct recruitment examination, 2016 on 5.7.2018 could be operated with reference to DOP Circular dated 26.4.2018 in view of the fresh recruitment to posts of LSAs having been advertised on 14.3.2018 and written examination pursuant thereto held on 21.10.2018. The correspondence however remained sterile and inconclusive. And the petitioners despite being recommended by the Board for appointment as LSA were not so appointed. Aggrieved thereof, this petition has been filed.
An affidavit in opposition on behalf of respondents no. 1, 2 & 4 has been filed by one Dr. Anil Kumar Maharshi working as the Veterinary Officer (Downloaded on 29/06/2019 at 02:59:18 AM) (10 of 37) [CW-5694/2019] (Litigation) in the office of the Director, Animal Husbandry Department. It has been submitted that following the examination held on 21.8.2016 pursuant to the advertisement dated 28.6.2016, those in the main select list were recommended for appointment as LSAs as under:
Sl. No. Date of Number of Candidates
Recommendations
1. 17.7.2017 1401 - Non TSP
186 - TSP
77 - SBC
(supernumerary posts by
order of the Hon'ble
Court)
2. 2.8.2017 63 Non TSP
4 TSP
3. 21.8.2017 1 Non TSP
4. 17.10.2017 3 Non TSP
5. 30.11.2017 48 - Non TSP
13 - TSP
6. 23.1.2018 1 - Non TSP
7. 16.3.2018 2 Non TSP
8. 27.4.2018 5 Non TSP
9. 24.5.2018 1 Non TSP
And as per the aforesaid recommendations of the Board, the selected candidates who reported on satisfaction of eligibility requirements were given appointment. Subsequent to the appointment/s so made, 39 posts of LSAs relatable to those notified in (Downloaded on 29/06/2019 at 02:59:18 AM) (11 of 37) [CW-5694/2019] the advertisement dated 28.6.2016 remained vacant (36 in Non TSP Areas and 3 in TSP Areas) for reasons of non joining of selected candidates. Requisition for filling up such vacant 30 posts was sent by the appointing authority to the Board. It recommended vide letter dated 18.10.2018 39 names from the waiting list notified on 5.7.2018 for appointment. It has been submitted that however in the meantime the new recruitment process for appointment of LSAs pursuant to the subsequent advertisement dated 14.3.2018 had been initiated and the examination therefor held on 21.10.2018. Hence guidance with reference to its Circular dated 26.4.2018 was sought from the DOP and clarification required as to whether the petitioners could be appointed. On the aforesaid query to the DOP vide letter dated 12.2.2019, direction was issued to act as per its Circular dated 26.4.2018. For this reason despite the petitioners being in the waiting list and recommended to be (Downloaded on 29/06/2019 at 02:59:18 AM) (12 of 37) [CW-5694/2019] appointed on the 39 vacant posts of LSAs (36 in Non TSP Areas and 3 in TSP Areas) have been not appointed.
Mr. Vigyan Shah appearing for the petitioners submitted that the vacancies on the post of LSAs advertised on 28.6.2016 and 22.7.2016 for TSP / Non TSP areas could not and were not included in the advertisement dated 14.3.2018 also indeed for recruitment to the subsequently obtainable posts of LSAs with the Animal Husbandry and Dairy Department. Mr. Vigyan Shah submitted that even otherwise Board requisitioned appointing authority on 15.5.2018 to send recommendation for appointment of LSAs on posts of LSAs remaining vacant for reason of non joining of those in the main select list offered appointment. The recommendation by the Board was thereon made on 18.10.2018. And that was prior to holding of the examination pursuant to the (Downloaded on 29/06/2019 at 02:59:18 AM) (13 of 37) [CW-5694/2019] advertisement dated 14.3.2018 on 21.10.2018. Mr. Vigyan Shah submitted that even on a plain reading of otherwise arbitrary and illegal DOP Circular dated 26.4.2018, the petitioners' appointment could not be injuncted in the facts of the case with reference thereto.
Mr. Vigyan Shah further submitted that under the proviso to Rule 20 of the Rajasthan Animal Husbandry Subordinate Service Rules, 1977 (hereafter 'the Rules of 1977'), a reserve list of 50% of the advertised vacancies has to be mandatorily prepared and from such reserve list on requisitioned by the appointing authority to the Commission (here Board), it has to recommend within 6 months of the date of the original / main select list recommendations the names of candidates in the reserve list in order of their merit for appointment to the vacant posts. Mr. Vigyan Shah further submitted that in the context of (Downloaded on 29/06/2019 at 02:59:18 AM) (14 of 37) [CW-5694/2019] the aforesaid proviso to Rule 20 of the Rules of 1977, DOP itself vide Circular dated 13.1.2016 addressed to All Addl. Chief Secretaries, Principal Secretaries and Special Secretaries as also the Departmental Heads noticing that the original / main select list following an examination for varied reasons was not being communicated at one go to the appointing authority, but in parts, recognized that an issue had arisen as to when the 6 months' period in the proviso to Rules such as Rule 20 of the Rules of 1977 for operation of the reserve list would commence. The DOP then took a conscious view that the validity of the reserve list for six months within which recommendations were to be made by the Commission (Board) be computed with reference to the date of the last of the recommendations for appointment from the original / main select list by the Commission (Board) to the appointing authority. It was further clarified in the DOP Circular dated 13.1.2016 that the so enunciated (Downloaded on 29/06/2019 at 02:59:18 AM) (15 of 37) [CW-5694/2019] position would also attract to situations where the final result was revised albeit subject to the condition that prior to the revised results, the selection process itself had not been completed and the vacancies obtaining from the non joining of selected candidates following the earlier recruitment process had not been included in the vacancies subsequently advertised.
Mr. Vigyan Shah further submitted that in any event the Circular dated 26.4.2018 is merely administrative in nature cannot override the right of candidates in the waiting list issued pursuant to the proviso to Rule 20 of the Rules of 1977 which is obviously statutory in nature. He submitted that a candidate in the waiting list has an almost indefeasible right as per his merit except for plausible reasons to be considered for appointment - within the time frame law permits - to the posts advertised but remaining unfilled / vacant for any reason including because of (Downloaded on 29/06/2019 at 02:59:18 AM) (16 of 37) [CW-5694/2019] non joining of those selected. Inefficiencies in the notifying of statutorily waiting list and delays in the appointing authority requisitioning name of candidates for appointment on vacant seats or not appointing - as in the instant case - despite requisition made followed by recommendations of the Commission (Board) cannot be to the detriment of the candidates in the waiting list. Mr. Vigyan Shah submitted that if it were nor to be so, the selected candidates in the waiting list despite all necessary conditions for their appointment such as available vacancies, requisition of the appointing authority and recommendation of the Commission (Board) would stand arbitrarily denied their right to appointment. Mere initiation of this exercise of fresh recruitment without reckoning for the completion of the selection process at an earlier recruitment cannot by itself entail a preemptive truncation of the right of selected candidates - whether in the main / original select list or waiting list (Downloaded on 29/06/2019 at 02:59:18 AM) (17 of 37) [CW-5694/2019] even while the corresponding vacancies advertised remain vacant. The DOP Circular dated 26.4.2018 or the one dated 19.7.2001 which it sought to clarify cannot purport to bring about such an illegality. Were it to be so, the Circulars in issue would be liable to be quashed and set-aside as wholly arbitrary and unreasonable.
Mr. Vigyan Shah further submitted that admittedly in the instant case, the requisition from the waiting list for appointment to the unfilled post of LSAs for reason of non joining of selected candidates was made on 15.5.2018 and the waiting list was then notified by the Board on on 5.7.2018. Thereafter recommendation by the Board was made on 18.10.2018 within the validity / period of the reserve list computed as per the DOP Circular dated 13.1.2016. The initiation of the subsequent recruitment process under the advertisement dated (Downloaded on 29/06/2019 at 02:59:18 AM) (18 of 37) [CW-5694/2019] 14.3.2018 was only on examination being held on 21.10.2018 - as per the Circular dated 26.4.2018. He submtted that the petitioners as per their merit in the waiting list of the previous recruitment therefore had / have a right to be appointed on the posts of LSAs available against the unfilled vacancies for reason of non joining of those in the original / main select list drawn following the advertisement dated 28.6.2016/22.7.2016.
Mr. M.S. Singhvi learned Advocate General appearing for the respondents submitted that the Circular dated 26.4.2018 entails non appointment of the petitioners despite the fact that they were indeed in the waiting list, vacancies obtained on the post of LSA, requisition therefor was made by the appointing authority and recommendation thereon made by the Board on 18.10.2018. Actual appointments not being made prior to 21.10.2018 when the written (Downloaded on 29/06/2019 at 02:59:18 AM) (19 of 37) [CW-5694/2019] examination following the subsequent advertisement for recruitment to the post of LSA issued on 14.3.2018 was held, the earlier vacancies were deemed to have lapsed. This consequence followed the DOP Circular dated 26.4.2018. The petitioners could not therefore be appointed and rightly were not so. Mr. M.S. Singhvi submitted that it is well settled that on the initiation of the fresh recruitment process for a given post, the earlier recruitment process for the said post has to necessarily lapse as there cannot simultaneously be two recruitment processes underway for a post. Mr. M.S. Singhvi relied on (2019) 2 SCC 195 UP Public Service Commission Versus Surendra Kumar and 1994 Suppl. (2) SCC 591 Gujarat State Dy. Executive Engineers Association Versus State of Gujarat & Ors. in support of his contentions.
Heard. Considered.
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(20 of 37) [CW-5694/2019] The Apex Court in the case of Surinder Singh & Ors. Vs. State of Punjab & Anr. [(1997) 8 SCC 488] has held that even though a waiting list cannot be a perennial source of recruitment and the candidates in the waiting list have no vested right to appointment, yet the exclusion is not complete and would not apply "when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative." In Shankarsan Dash Vs. Union of India [(1991) 3 SCC 47], the Apex Court has held that even though an indefeasible right to those selected for appointment cannot be attributed, yet it does not mean that the State has the licence of acting in an arbitrary manner and the decision not to fill up the vacancies has therefore to be taken bona fide for appropriate reason. Further in K. Jayamohan Vs. State of Kerala & Anr. [(1997) 5 SCC 170] it has been held by the Apex Court that though government need not fill up vacancies by (Downloaded on 29/06/2019 at 02:59:18 AM) (21 of 37) [CW-5694/2019] those in the waiting list, yet when so done the appointing authority must give reasonable explanation for the non-appointment. In Sri Kant Tripathi & Ors. Vs. State of U.P. & Ors. [(2001) 10 SCC 237], it has been held by the Apex Court that a waiting list candidate has a vested right to be considered when the selected candidate does not join and the waiting list is still in operation. In Asha Kaul (Mrs.) & Anr. Vs. State of Jammu and Kashmir & Ors. [(1993) 2 SCC 573], it has been held by the Apex Court that even though there is no indefeasible right to appointment to the selected candidates, yet that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly as the whole recruitment exercise cannot be reduced to a farce by its arbitrary inaction. It has been held that having sent requisition to the Public Service Commission to select a particular number of candidates in different categories to vacancies advertised and thereupon (Downloaded on 29/06/2019 at 02:59:18 AM) (22 of 37) [CW-5694/2019] vacancies having been notified, exams conducted, selection made, and communicated to the Government, the Government cannot quietly and without good reason nullify the whole exercise and tell the candidates that they have no right to appointment
--unless a plausible reason is stated and made out. In Lala Raghuraj Swarup (dead) by LRs Vs. Hardwari Lal [AIR 1991 SC 2072], the Apex Court has held that those in the select list prepared under due process are entitled to appointment on vacancies available during the currency of such a list. The effect of the aforesaid judgments is that when candidates in the waiting list are not appointed despite vacancies as per the advertised posts not being filled up they are not without legal recourse. On legal recourse being had, the appointing authority is under an obligation to proffer legally acceptable reasons for non-appointment of such candidates in the waiting list. From R.S. Mittal Vs. Union of India [1995 Supp (2) SCC (Downloaded on 29/06/2019 at 02:59:18 AM) (23 of 37) [CW-5694/2019] 230], it further follows that inaction on part of the Government in not operating the waiting list for filling up vacancies without any justifiable reason deserves to be rectified by the Court in the interest of justice and credibility of the recruitment process.
The state of law on the right of those in the waiting list to be considered for appointment on vacant posts advertised having been detailed, now to the specific statutory rules relevant to the dispute before the Court. The Rules of 1977 determine the appointment to the post of LSAs. Rule 20 thereof relevant for the adjudication of this petition reads as under:
"20. Recommendation of the Commission or the Appointing Authority:- The Commission or the Appointing Authority as the case may be, shall prepare a list of the candidates (Downloaded on 29/06/2019 at 02:59:18 AM) (24 of 37) [CW-5694/2019] whom they consider suitable for appointment to the posts concerned, arranged in the order of merit. The Commission shall forward the list to the Appointing Authority.
Provided that the Commission or the Appointing Authority, as the case may be, may to the extent of 50% of the advertised vacancies, keep names of suitable candidates on the reserve list. The Commission, may, on requisition, recommend the names of such candidates, in the order of merit to the Appointing Authority within six months from the date on which the original list is forwarded by the Commission to Appointing Authority." (Downloaded on 29/06/2019 at 02:59:18 AM)
(25 of 37) [CW-5694/2019] Recruitment to the post of LSAs having been conducted by the Board not the Commission, the reference to the Commission will be construed as one to the Board.
The proviso to Rule 20 of the Rules of 1977 states that appointment to vacant posts arising from non joining of the candidates in the main select list be made from those in the waiting list. It is well settled that both the main (original) list and the waiting list constitute the select list. The limitation to make recommendations for appointment from the waiting list in terms of proviso to Rule 20 of the Rules of 1977 is six months from the date on which the original list was forwarded by the Commission to the appointing authority. DOP Circular dated 13.1.2016 grapples with the experience of the original / main list of selectees not being forwarded for varied reasons to the appointing authority at one go and the resultant issue (Downloaded on 29/06/2019 at 02:59:18 AM) (26 of 37) [CW-5694/2019] of the difficulty of computing the 6 months limitation under the proviso to Rule 20 of the Rules of 1977 for the Commission (Board) to make recommendation from the waiting list upon requisition for appointment to unfilled vacant posts. In this context, it has been provided in the aforesaid Circular that the six months' period for operation of the waiting list would be with reference to the last date on which the names of the candidates in the main / original list are forwarded by the commission (Board) to the appointing authority.
In the case at hand, it is an admitted fact that several in the main / original list selected for appointment to the post of LSAs pursuant to the advertisement dated 28.6.2016 and 22.7.2016 were recommended on 5.7.2018 when the reserve list was also notified. The issue of the rights of those in the (Downloaded on 29/06/2019 at 02:59:18 AM) (27 of 37) [CW-5694/2019] waiting list to be appointed to advertised vacant unfilled posts engaged the attention of DOP in its circular dated July 19, 2001. Therein in para 4 (unnumbered), it was categorically stated that a candidate on the waiting list in the order of his merit has a right to claim that he be appointed if one or the other selected candidate does not join or is not appointed for any reason. The Circular dated dated 19.7.2001 however later does indeed in its concluding part on the issue of the right of candidates in reserve list to be appointed to vacancies arising from non joining of those in the main list for any reason, proceed to state that once a fresh process of recruitment commences, then the remainder selection process and the waiting list would lapse and if any vacancy advertised could not be filled for that reason, (Downloaded on 29/06/2019 at 02:59:18 AM) (28 of 37) [CW-5694/2019] such vacancies be filled up only through a fresh process of recruitment to be conducted in future. It is this later part of the Circular dated 19.7.2001 which has been clarified by the impugned Circular dated 26.4.2018 stating that "the date of holding of next examination for fresh / new recruitment will be taken as the date of initiation or start of fresh process of recruitment."
In the instant case, even before the appointment of several of the selected candidates in the main / original list drawn pursuant to the advertisement dated 28.6.2016 could be completed and even before the mandatorily required reserve list under the proviso to Rule 20 of the Rules of 1977 was notified, a fresh advertisement for recruitment was issued on 14.3.2018 for 2077 posts of LSAs (1833 for (Downloaded on 29/06/2019 at 02:59:18 AM) (29 of 37) [CW-5694/2019] Non TSP Area and 244 for TSP area). It has not been disputed that this subsequent advertisement did not include the unfilled posts of LSAs under the advertisements dated 28.6.2016 and 22.7.2016. The respondent Animal Husbandry Department, the appointing authority on 15.5.2018 had in fact subsequent to 14.3.2018 sent requisition to the Board for recommending the names of others selected for appointment (which would include those in the statutory waiting list) against the vacancies available on account of non joiners. The Board thereupon notified the waiting list on 5.7.2018 and the petitioners included therein were called for theiir documents verification on 6.7.2018, which they successfully completed and were found eligible. Following the documents verification the Board sent its (Downloaded on 29/06/2019 at 02:59:18 AM) (30 of 37) [CW-5694/2019] recommendation on 18.10.2018 to the appointing authority for the petitioners' appointment against the vacancies available for reason of non joining of earlier selected candidates on the post of LSAs in TSP and non TSP Areas.
In the train of the aforesaid facts, I am of the considered view that the recommendation of the Board for the petitioners' appointment having been made on 18.10.2018 i.e. prior to the written examination held for the post of LSAs on 21.10.2018 pursuant to the advertisement dated 14.3.2018, it does not fall in the cross-hairs of the Circular dated 19.7.2001 as clarified on 26.4.2018. The petitioners being recommended were entitled to appointment against vacant posts available because of those earlier offered appointment not having joined. Mere delay in (Downloaded on 29/06/2019 at 02:59:18 AM) (31 of 37) [CW-5694/2019] the appointment of the petitioners despite recommendation of the Board following the appointing authority's requisition could not have resulted in a situation to their disadvantage and evaporation of their right of employment. The right of those in the waiting list against the vacancies obtaining from the non joining by those offered appointment at a selection for whatsoever reason has been enunciated by the Apex Court as also recognized by the DOP itself in its Circular dated 19.7.2001.
I am also of the considered view that circular dated 19.07.2001 as clarified on 26.4.2018 to the extent that it provides that once a fresh process of recruitment has commenced, the remaining previous selection process would automatically lapse and unfilled vacancies would be filled up only through the (Downloaded on 29/06/2019 at 02:59:18 AM) (32 of 37) [CW-5694/2019] fresh recruitment would not if construed literally stand the test of Article 14 of the Constitution of India in view of the right of the candidates in the wait list to be pushed up and offered appointment when selected candidates did not join despite offer of appointments. The Rule of harmonious construction in the interpretation of statutes facilitates a rounded comprehension of two seemingly contradictory provisions. Similarly, the rule of reading down a statute for saving it from arbitrariness and unconstitutionality allows the courts to construe an otherwise offending provision in a just and appropriate manner such that the valuable rights of a party before the court would not be jeopardized. On the aforesaid Rules of interpretation, with reference to the right of a candidate in the waiting list under the proviso to Rule (Downloaded on 29/06/2019 at 02:59:18 AM) (33 of 37) [CW-5694/2019] 20 of the Rules of 1977 on the one hand and the seeming prohibition of such candidates to be appointed to vacant posts for the mere reason of subsequent recruitment process having commenced even without the unfilled vacancies in the earlier recruitment being reckoned for therein, it would be just and reasonable to hold that the DOP Circular dated 19.7.2001 as clarified on 26.4.2018 entails the lapsing of vacancies in the earlier recruitment only in the event of such vacancies having been actually reckoned for in the subsequent advertisement for recruitment to the post in issue. In the instant case, the unfilled vacancies to the post of LSAs advertised on 26.8.2016 and 22.7.2016 admittedly were not included in the advertisement dated 14.3.2018. The said vacancies thus were available to be filled up from (Downloaded on 29/06/2019 at 02:59:18 AM) (34 of 37) [CW-5694/2019] those in the waiting list on timely recommendations by the Board following requisition by the appointing authority.
Unemployment is a scourge and presently an epidemic. The right of employment of the duly selected candidates in the waiting list - beneficial / relevant facts present - cannot be cursorily and casually taken away as has been sought to be done qua the petitioners in the facts of the instant case by a mechanical incantation of DOP Circular dated 26.4.2018. For the Court to take a contra view in the facts of the case would be to perpetuate manifest injustice to those in a wait list - the petitioners - without any just and plausible cause. (Downloaded on 29/06/2019 at 02:59:18 AM)
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The Judgments relied by the learned
Advocate General are not relevant to the facts of the case at hand and do not enunciate a state of law to the petitioner's detriment. In UP Public Service Commission Versus Surendra Kumar (supra), the Apex Court held that where most of the appointments except one were made from the main select list, the time for the validity of the waiting list would run from the date all but one appointment was made. The issue of validity of the waiting list as in the aforesaid case is not an issue at all in the petition. Further in the case of Gujarat State Dy. Executive Engineers Assoc. Versus State of Gujarat & Ors. (supra) also relied upon by the learned Advocate General, the Apex Court has merely stated the well settled proposition that those in the waiting list cannot claim appointment of good (Downloaded on 29/06/2019 at 02:59:18 AM) (36 of 37) [CW-5694/2019] cause not to appoint them - such as against future vacancies or on an argument that number of vacancies advertised were wrongly computed on the lower side - obtained. Yet the Apex Court in the said case recognized the right of a candidate in the waiting list to be pushed up as per merit and appointed against vacancies obtaining from non-joining of those in the main / original list despite offers of appointment.
Consequently, I would allow this petition and hold that in the facts of the case, the Circular dated 26.4.2018 read in conjunction with the Circular dated 19.7.2001 which its seeks to clarify does not obstruct the appointment of the petitioners - all in the waiting list against the post of LSAs for which they have been, following the appointing authority's (Downloaded on 29/06/2019 at 02:59:18 AM) (37 of 37) [CW-5694/2019] requisition, recommended by the Board on 18.10.2018 i.e. prior to the commencement of the examination pursuant to the subsequent advertisement dated 14.3.2018 on 21.10.2018. The recommendation for the petitioners appointment be now finally processed and orders passed thereon within four weeks.
The petition is accordingly allowed.
(ALOK SHARMA),J DILIP KHANDELWAL (Downloaded on 29/06/2019 at 02:59:18 AM) Powered by TCPDF (www.tcpdf.org)