Rajasthan High Court - Jaipur
Bal Krishan Sharma vs State Of Raj And Ors on 22 December, 2010
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
**
Civil Writ Petition No.1517/2008
Bal Krishan Sharma Versus State & Ors
Date of Order : 22/12/2010
Hon'ble Mr. Justice Ajay Rastogi
Mr. Ashok Gaur, for petitioner.
Mr. SN Kumawat, Addl. Adv. Gen for respondent-PSC Mr. Ganesh Meena, Govt. Counsel for respondent State Petitioner after having undergone process of selection initiated by Rajasthan Public Service Commission ("PSC") for 309 posts of Lecturer (School Education) (Hindi) pursuant to advertisement NO.3/2004-05 (Ann.1) dt.18/08/2004, was finally selected and placed at S.NO.2 in reserve list; despite appointing authority having called for reserve list, the PSC vide letter dt.22/12/2007 (Schedule B) declined to forward reserve list recommending names of six candidates in order of merit in terms of requisition dt.05/12/2007 (Schedule A); which has been assailed by way of instant petition.
Posts of School Lecturer (Hindi) along with other subjects were advertised by the PSC vide advertisement-3/2004-05 (Ann.1) dt. 18/08/2004, pursuant to which petitioner being eligible participated in process of selection and was informed of his name being placed S.NO.2 in the reserve list. However, select list published in terms of vacancies advertised (supra) was forwarded by the PSC to State Government on 18/04/2007 recommending 309 names of candidates on being placed in order of merit; by the time, State Government could have acted upon select list (supra) to make appointment, CWP-9825/2006 was filed by one Smt. Usha Sharma who had participated in process of selection initiated pursuant to advertisement impugned herein, in which interim order was passed by the Court but CWP-9825/2006 was ultimately dismissed - against which Usha Sharma preferred Special Appeal (Writ) No. 397/2007 before the Division Bench and an interim order on 26/04/2007was passed restraining State Government from making appointment pursuant to select list of 309 candidates forwarded by the PSC on 18/04/2007 which remained operative till vacation whereof and final disposal of special appeal which was dismissed vide judgment dt.17/07/2007. Thus, by virtue of interim order dt.26/04/2007 being operative till 17/07/2007, while it stood vacated & special appeal-397/2007 was finally dismissed (Smt. Usha Sharma Vs. State-2007(4) WLC Rajasthan 411), no appointment could have been made out of select list of 309 candidates for about 83 days and on 21/07/2007, State Government issued order appointing 309 candidates - out of which six (4 male & 2 female in general category) did not join, hence their appointments were cancelled - against thses six vacancies having remained unfilled (supra), State Government sent requisition dt. 05/12/2007 (Schedule-A) calling for four male & two female candidates in general category in order of merit, to which the PSC declined vide letter dt.22/12/2007 (Schedule-B) to forward & recommend their names out of reserve list, on the premise that select list was originally forwarded on 18/04/2007; and six months as provided under proviso to R.20 of Rajasthan Educational Service Rules, 1970 ("Rules, 1970") has expired on 17/10/2007; as such, list as desired vide letter dt.05/12/2007 cannot now be sent by the PSC.
Counsel for petitioner vehemently contends that life period of select list published by the PSC for being forwarded to State Government is six months in terms of R.20 of Rules, 1970, during which the State Government has to send its requisition but because of interim order passed by Division Bench on 26/04/2007 in Special Appeal (Writ)-397/2007 (Usha Sharma Vs. State) restraining the State government from making appointments pursuant to select list of 309 candidates forwarded by the PSC on 18/04/2007, which remained operative till vacation of interim order (supra) upon dismissal of special appeal, vide judgment dt.17/07/2007 (2007(4) WLC Raj. 411), in fact State Government was precluded from making appointments and thus the period during which interim order having remained operative precluding the State Government from making appointment, has to be excluded from six months' period provided U/r 20 and if such a period of interim order (from 26/04/2007 till 17/07/2007 (dismissal of special appeal) is excluded from six months provided U/r 20, the requisition sent by State Government on 05/12/2007 was within six months as provided U/r 20; as such, the PSC cannot be held to be justified in not forwarding names to the appointment authority in terms of requisition and the premise on which it has declined to forward/recommend names of six candidates as called for vide letter dt. 05/12/2007 (Schedule-A) in the facts & circumstances is wholly arbitrary and their action is in violation of Art.14 of the Constitution. In support, Counsel placed reliance upon recent judgment of this Court in Prithvi Singh Jodha Vs. State (2009(3) WLN 62); Jitendra Kumar Meena Vs. Director Primary & Secondary Education (2007(4) RLR (Raj) 3401) Muktipada Bag Vs. State of West Bengal (2005 (2) SLR (Cal) 87) and of Supreme Court in Purshottam Vs. Chairman MSEB (1999(6) SCC 49).
Respondent-PSC in its reply has taken the stand that since select list was forwarded to the State Government on 18/04/2007 and six months' time as provided U/r 20 stood expired on 17/10/2007; thereafter no list as called for by State Government could be recommended by the PSC.
Counsel for respondent-PSC submits that mere inclusion of name of candidates in a select list creates no indefeasible right of appointment in favour of petitioner; and once reserve list stood expired by efflux of time as provided U/r 20, irrespective of any reason whatsoever, such a list could not be carried out; in such circumstances, no error has been committed by the PSC in declining vide letter dt.22/12/2007 to recommend names of candidates out of reserve list.
This Court has considered contentions advanced at the bar and with their assistance, examined material on record. The post of Lecturer (School Education) is included in Schedule appended to Rules, 1970 - as per which, this post is to be filed up 50% by direct recruitment and 50% by promotion. The issue raised herein relates to quota reserved for direct recruitment.
Under Scheme of Rules, 1970, a legal obligation has been casted upon appointing authority to determine on firsts of April every year the actual number of vacancies occurring during financial year in terms of R.9 of Rules, 1970; and after its due determination, vacancy has to be filled as per procedure provided under Part-IV & V of Rules, 1970 either by direct recruitment or promotion as the case may be and after the vacancies are determined for being filled as in by direct recruitment, applications are invited by the PSC and procedure provided under Part-IV has to be followed and finally after the select list is prepared by the PSC on being arranged in order of merit, it is recommended and forwarded to the appointing authority. Proviso to R.20 further provides that 50% of the advertised vacancies, names of candidates found suitable in order of merit in course of process of selection are to be kept in reserve list for being recommended in order of merit to the appointing authority on its requisition being sent within six months from the date on which original select list is forwarded by the PSC.
R.20 of Rules, 1970 reads ad infra:
20. Recommendations of the Commission:
- The commission shall prepare a list of the candidates, whom they consider suitable for appointment to the post concerned, arrange in order of merit and forward the same to the appointing authority:
Provided that the Commission may also to the extent of 50% of the advertised vacancies, keep names of suitable candidates may, on requisition, be recommended in order of merit to the appointing authority within 6 months from the date on which the original list is forwarded by the Commission to the appointing authority.
However, under proviso to R.22 of Rules, 1970, inclusion of a candidate's name in the list confers no right to appointment unless the appointing authority is satisfied after such inquiry as may be considered necessary that such candidate is suitable in all other respect for appointment on the post. From the Scheme of Rules, 1970, it clearly emerges that the period of six months as provided U/r 20 has been provided apparently with an object that in first six months, the PSC may be able to complete the process of selection and appointments are to be made from the select list being forwarded by the PSC to appointing authority and if candidates do not join for one or the other reason or resign; thereafter in 2nd phase of six months, such eventuality or exigency (supra) can be taken note of by the authority while the advertised vacancy having remained unfilled, requisition can be sent to the PSC to forward names from reserve list prepared U/r 20 so that advertised vacancies could be filed up within a year obviously for the reason that in the next financial year, an obligation is cast upon the appointing authority to determine vacancies afresh obviously in accordance with scheme of Rules for direct recruitment or promotion as the case may be.
This Court could not be oblivious of the facts that in practice, the Scheme of Rules is not being followed by the authorities and vacancies are not being determined by appointing authority every year and filled up in terms of the procedure provided under Part-IV or Part-V of the Rules, 1970.
But, as regards procedure provided for vacancies to be filled up under Part-V, regarding promotion quota, if the appointing authorities have failed to fill up after determination of vacancies as on 1st of April every year, and the incumbent is promoted after 2-3 years safeguards being provided to protect interest of such an incumbent, who if promoted in the year 2010 against vacancies determined of earlier years 2007-08, still his seniority on promotional post is restored against the year of vacancy and is always deemed to have been promoted as of vacancy of earlier year 2007-08 but there is no corresponding provisions in Part IV to safeguard interest of incumbent selected through direct recruitment. That being so, day in and day out, litigations are coming to the Courts assailing process of selection held for direct recruitment through PSC or appointment authority, as the case may be as; in the instant case, as well, where vacancies were advertised of the year 2004-2005 vide advertisement dt.18/08/2004 - select list was forwarded by the PSC to State Government on 18/04/2007 after almost two years of vacancies advertised.
Very object with which period of six months is stipulated under proviso to R.20, which is almost omnibus provision in all service Rules of the State Government, could not have been adhered to for al practical purposes and if the process is being completed on year to year basis, such problem as arisen herein would not have arisen for adjudication before the Court.
In this background while examining facts of instant case, reference whereof has been made (supra), as well. After select list was forwarded by PSC on 18/04/2007, because of interim order dt.26/04/2007, State Government was restrained from making appointment out of select list of 309 candidates, which came to be vacated only upon special appeal being dismissed vide order dt.17/07/2007; and without loss of time, State Government thereafter vide order dt.21/07/2007 gave appointment to 309 candidates from the select list forwarded by PSC on 18/04/2007 and the period during interim order dt.26/04/2007 remained operative till dismissal of special appeal on 17/07/2007, appointment could not have been made for which petitioner was not at fault.
Here it is relevant to observe that it is not the case where the petitioner is seeking a writ of mandamus from this Court to fill up additional vacancies if arisen after advertisement impugned; whereas controversy herein is in regard to the advertised vacancies having remained unfilled, in regard to which, requisition dt.05/12/2007 has been sent by State government calling for names of six candidates (4 male & 2 female in general category) due to non-joining by six candidates out of 309 named in select list forwarded on 18/04/2007.
While examining scope of life of reserve list as provided U/r 22 of Rajasthan Agriculture Service Rules, 1960 which is pari materia to present R.20 of Rules, 1970, in Shiv Raj Sharma Vs. State (2001(3) RLR 443) this Court (per Hon'ble Mr.PP Naolekar as he then was) ha slaid down guiding principles ad infra:
7. From the aforesaid decision of the Supreme Court and on interpretation of Rule 22 of the Rules of 1960 alongwith other relevant provisions of the Rules of 1960 the following proposition of law emerges:
(i)That the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. The State cannot make more appointments than the number of advertised posts, the State can deviate from the advertised posts and make appointment on a post falling vacant thereafter in exceptional circumstances only, that too by taking policy decision int that behalf.
(ii) Selection process is complete as soon as the appointments are made on advertised posts and no vacancy arises due to non-joining of or resignation etc. of selected candidates within the period the reserved list is to operate.
(iii) A candidate in a reserved list, in order of merit, has a right to claim that he may be appointed if one or other selected candidate has not joined or resigned etc. and the reserved list is operative at that time. But such an appointment cannot be claimed as a matter of right, by a candidate in reserved list, on the vacancy which is not advertised and requisitioned after advertisement.
(iv)That under rule 22 of the Rules of 1960, the RPSC is bound to send names of the candidates for the vacancies which are requisitioned by the State Government, from the reserved list prepared by the RPSC, if such requisition is made during the existence of the reserved list that is the date, the select list is sent to the Government till the expiry of six months thereafter. It is for the Government to decide, whether vacancy can be filled up, from the names sent by the RPSC.
(v)The Government can make appointment on the post advertised but no filled up from the select list for some cause, from reserve list if such vacancy arises and the requisition is made during the subsistence of the reserved list. If the vacancy arises after reserved list has lapsed the Government has no authority or jurisdiction to make appointment from the reserved list.
Taking note of principles (supra) in instant case, advertised vacancies being available on account of non-joining by six candidates (4 male & 2 female in general category) and the reserve list having remained operative excluding the period of interim order being operative (from 26/04/2007 to 17/07/2007); which was specifically clarified by State Government vide its letter dt.05/12/2007 ad infra:
"?? ???? ???????? 309 ????????? ??? ?? 6 ????????? (4 ???????? ????? ??? 2 ???????? ????? ?? ????? ????? ???? ???? ?? ?????? ???????? ???? ?????? ?? ???? ??? ?? (????? ??????) ???? ???????? ???? ????? ??????? ?? 6 ?? ????? ?? ??? ?? ???????? ?????? ???? ???? 1970 ?? ????-20 ?? ?????? 6 ??? ?? ???? ??? ?????? ???? ????? ???? ?? ???????? ?? ??????? ???? ?????? ?????? 18/04/2007 ?? ????? ????????? ?? ???? ????? ?? ?????? ???? ?? ????? ?????? 6 ??? ?? ???? 18/10/2007 ?? ?????? ?? ???? ?? ?????? ???? ?? ???????? ??-7(6)?????/03-04/1995?????? 09/05/2007 ?? ??? ?? ??????? ??? ????? ?????? ??.??.??.???? ???.??.397/07 ??? ???. ???? ???????? ????? ????? ????? ???? ?????? 26/04/2007 ?? ????? ????? ???? ?????? ????? ?? ?????? ???????? ?????? ????????? ?????? ???????? ????? ????? ???? ?????? 17/07/2007 ?? ????? ???? ?? ???????? ?? ?? ???.
Once the State Government, itself has clarified its position vide letter dt. 05/12/2007 that while the select list was forwarded on 18/04/2007 and six months as provided U/r 20 expired on 18/10/2007 but the PSC, itself, in its letter dt.09/05/2007 informed of an interim order dt.26/04/2007 being passed by the High Court in Special Appeal (Writ)-397/2007 filed by one of applicants (Usha Sharma) restraining the authority from making appointment and such an interim order remained operative till dismissal of special appeal vide order dt. 17/07/2007; thereafter, process of appointment could commence; as such aforesaid period of interim order being in operation ought to have been excluded by the PSC while computing period of six months and requisition of six names out of reserve list being in existence by virtue of R.20 of Rules, 1970; in such circumstances, the PSC could not be held to be justified in having declined vide letter dt.22/12/2007 to recommend/forward names as requisitioned by State Government vide letter dt.05/12/2007.
It is trite law that no act of courts should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by an intervention of the court, he should be restored to the position, he would have occupied but because of that, litigant should not be deprived of his legitimate right, to which he is entitled for under the law as held by the Apex Court in Jang Singh Vs. Brij Lal (AIR 1996 SC 1631) ad infra:
"6.... There is no higher principle for the guidance of the Court than the one that no act of court should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by a mistake of the court he should be restored to the position, he would have occupied but for that mistake. This is aptly summed up in the maxim: "Actus curiae neminem gravabit".
Apex Court in Purushottam Vs. Chairman MSEB (supra) observed that only because of erroneous decision of screening committee if a duly selected candidate has been denied of his appointment on the pretext that panel's term had expired and the post had been filled up by some one else, such action of the authority has been held to be arbitrary and in violation of Art.14 of the Constitution. The Apex Court held ad infra:
"4. .. but for the illegal decision of the screening committee which decision in the meanwhile 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 had been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by some body else. Usurpation of the post by some body 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 mater, the appellant's right to be appointed to the post has been illegally taken away by the employer...".
Indisputably, interim order being in existence & operative during a period while the State Government was precluded from considering select list forwarded by the PSC on 18/04/2007 for appointment, if excluded viz., from 26/04/2007 till 17/07/2007, the State government was within its right to send requisition dt.05/12/2007 calling names of six candidates out of reserve list within six months from the date of original select list forwarded on 18/04/2007 as provided U/r 20; and it should not deprive the petitioner of his right of fair consideration for appointment and more so when he is not at fault; thus once the requisition was sent by Government, within six months ofcourse after exclusion of period of interim order being operative, there appears no justification for the PSC to decline the requisition of State Government merely on the premise of six months having allegedly expired on 17/10/2007, it could not have been forwarded by PSC thereafter.
Judgments on which Counsel for respondents placed reliance are of no assistance in the facts of instant case narrated (supra). In State of UP Vs. Harish Chandra (AIR 1996 SC 2173), select list was operative for a period of one year - after expiry of its life, writ petition was filed for seeking appointment and the Apex Court observed that mandamus can not be issued after life of select list prepared on 04/04/87 having expired since long and that apart, appointments were made by appointing authority contrary to the provisions of statutory rules for some unknown reasons. Similarly, judgments in Dr.Vandana Pathak Vs. State (2000(2) WLC Raj 125); Dr. MK Gaur Vs. State (2002(2) RLR 38-DB); Suman Saharan Vs. State (2002(4) WLC (Raj) 385 (DB) are also of no assistance to the respondents. These are cases where reserve list was to be utilised for additional vacancies which were not advertised and this Court observe that reserve list could not be used for unadvertised vacancies.
However, in instant case, grievance is only in regard to vacancies duly advertised which remained unfilled on account of non-joining of successful candidates and the requisition was sent by appointing authority. On the contrary, it has been consistently held by the Court that reserve list can always be used if advertised vacancies having remained unfilled provided requisition is sent by the Government within a period of six months as provided under Rules.
In K.Thulaseedharan Vs. Kerala State PSC Trivandrum (2007(6) SCC 190), the Apex Court observed that validity of reserve list could not have been extended after its period having expired. But if appointing authority was precluded from giving appointment out of select list and on that count, requisition could not have been sent to the PSC and it has already been observed that act of the Court should not cause any prejudice to the litigant, certainly the period during which interim order remained operative deserves to be excluded from consideration of period of six months provided Ur 20 and if that be so, indisputably requisition sent by appointing authority was within six months from main select list forwarded on 18/04/2007.
This Court has taken note of letter dt.05/12/2007 wherein State Government itself clarified in an unequivocal terms that since six successful candidates out of advertised vacancies have not joined whose appointments have been cancelled, against which requisition was being sent calling for six names (4 male & 2 female in general category) for giving them appointment against advertised vacancies which remained unfilled in course of life of reserve list which subsisted due to interim order being in operation from 26/04/2007 to 17/07/2007, deserves to be excluded while consideration of six months time provided U/r 20 of Rules, 1970. In the present facts and circumstances, action of respondent PSC was arbitrary and is violative of Art.14 of the Constitution of India.
Consequently, writ petition succeeds and is hereby allowed. Letter dt.22/12/2007 (Schedule B) of respondent-PSC is hereby quashed & set aside. Respondent-1 is directed to send names to the State Government pursuant to its requisition dt.05/12/2007 (Schedule A) and the State Government is further directed to consider candidature of petitioner and of other applicants eligible for appointment pursuant to selection made in reference to advertisement No.3/2004-05 dt.18/08/2004 in accordance with law. Respondents should ensure compliance of this order within three months.
No order as to costs.
(Ajay Rastogi), J.
K.Khatri/p.19/ 1517CW2008Rsr22DecSlctRsrdLst.doc