Rajasthan High Court - Jaipur
Vivek Kumar Meena vs State Law An Legal Affairanr on 20 October, 2023
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
[2023:RJ-JP:28445]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 14675/2016
Vivek Kumar Meena S/o Shri Dinesh Kumar Meena, aged about
27 years, R/o Village & Post Bhawli, Tehsil Mashalpur District
Karauli.
----Petitioner
Versus
1. State Of Rajasthan Through Principal Secretary, Law And
Legal Affair Department, Government Of Rajasthan,
Secretariat, Jaipur
2. Rajasthan Public Service Commission, Ghooghra Ghati,
Jaipur Road, Ajmer through its Secretary.
----Respondents
For Petitioner(s) : Mr. Tanveer Ahamad with Mr. RD Meena, Mr. Manish Parihar, Mr. Iliyas Khan & Mr. Arshad Khan For Respondent(s) : Mr. Anil Mehta, AAG (Sr. Adv) with Ms. Archana, Mr. Prawal Mishra & Mr. Amru Bishnoi Mr. MF Baig HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order RESERVED ON :: 10.10.2023 PRONOUNCED ON :: 20.10.2023 REPORTABLE
1. By way of filing this petition, the petitioner has challenged the action of the respondents by which they have refused to recommend his name for appointment on the post of Junior Legal Officer (for short, 'JLO') on the ground that validity of six months of the wait list has expired.
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2. Feeling aggrieved by the aforesaid action of the respondents, instant petition has been filed by the petitioner with the following prayer:
"(i) by an appropriate writ, order or direction, the impugned letter/notice dated 1.9.2015 issued by the respondent may kindly be quashed and set aside.
ii) by an appropriate writ, order or direction, the respondent may kindly be directed to give appointment to the petitioner on the post of junior Legal Officer against the unfilled vacancies due to non-joining of the selected candidates pursuant to the advertisement dated 18.9.2013 being at S.No.4 in ST category in waiting list dated 3.12.2015 with all consequential benefits.
iii) By issuing an appropriate writ, order or direction, the respondent No.2 may kindly be directed to operate the waiting list by cancelling the appointment order of those candidates who are not interested to join on their posts in the aforesaid department as per Rule 24 of the Rajasthan Legal State & Subordinate Service Rules, 1981 and the petitioner be given appointment on the post in question from the date of other candidates has been given appointment with all consequential benefits.
iv) Any other order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly also be passed in favour of humble petitioner."
3. Contents of the petition indicates that by way of filing instant petition, the petitioner is seeking directions against the respondents to operate the reserved waiting list and thereafter consider his case for appointment on the post of JLO. Submissions by the petitioner:
4. Counsel for the petitioner submits that pursuant to the advertisement dated 18.09.2013, total 150 posts out of which 18 (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (3 of 22) [CW-14675/2016] posts reserved for ST category were advertised by the Rajasthan Public Service Commission (for short 'RPSC') for appointment on the post of JLO. Counsel submits that the petitioner participated in the above selection process under the category of Scheduled Tribe candidate. Counsel submits that the result of the aforesaid examination was declared on 23.11.2015 wherein 148 candidates were declared as passed and later on a reserved list of 65 candidates was declared on 03.12.2015. Counsel submits that the RPSC sent the first recommendation of 115 candidates to the State for appointment on the advertised post on 11.12.2015 thereafter the second list was sent to the State on 30.03.2016 for appointment of 25 candidates. Counsel submits that the State issued appointment orders in favour of the 115 candidates on 30.03.2016 with a clear stipulation that the selected candidates were supposed to join the offered post within a period of 21 days. Counsel submits that various candidates did not join the offered post within the stipulated time and in the meantime the petitioner submitted an application on 04.05.2016 for operating reserve merit list. Counsel submits that in total 57 candidates did not join, hence, the State issued the subsequent appointment orders in favour of 25 candidates on 23.05.2016 and directed them to join within seven days. Counsel submits that because of non-joining of the above candidates, the candidature of some of the candidates were cancelled on 09.06.2016 and on the same day a requisition was sent by the State to the RPSC to operate waiting list of 27 candidates. Counsel submits that one Raj Kumar Meena was offered appointment by the State vide order dated 30.03.2016 but he did not join. The respondents were supposed to cancel his (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (4 of 22) [CW-14675/2016] candidature also, but this exercise was not done by the respondents till 09.12.2016. Counsel submits that thereafter the RPSC sent the requisition of 27 candidates from the reserve waiting list and accordingly appointment was given to these candidates on 08.08.2016. Counsel submits that finally appointment of the Raj Kumar Meena was cancelled on 09.12.2016 by the State but in spite of that the case of the petitioner was not considered for appointment on the advertised post irrespective of the fact that the petitioner was next in merit in the said category. Counsel submits that under these circumstances, the respondents were supposed to appoint the petitioner in place of Raj Kumar Meena whose post remained vacant due to his non joining. In support of his contentions, counsel for the petitioner has placed reliance upon the following judgments:
1. State of Rajasthan and Ors. vs. Dr. Shri Krishan Joshi and Anr. (DB Civil Special Appeal (Writ) No.81/2020) decided on 13.12.2022.
2. Vinod Kumar Gupta vs. The State of Rajasthan and Ors.
(SB Civil Writ Petition No.5694/2019) decided on 21.05.2019.
3. Aakriti Saxena Vs. State of Rajasthan and Ors. (SB Civil Writ Petition No.5652/2022) decided on 02.05.2023.
5. Counsel submits that under these circumstances interference of this Court is warranted and directions be issued to the respondents to appoint the petitioner on the post of JLO with all consequential benefits.
Submissions by the respondents:
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6. Per contra, learned counsel for the State as well as counsel for the RPSC opposed the arguments raised by the counsel for the petitioner and submitted that the life of the reserve merit list expired within a period of six months as provided under Rule 20 of the Rajasthan Legal State and Subordinate Services Rule, 1981 (for short 'the Rules of 1981'). Counsel submits that the last recommendation from the original list was made by the RPSC on 30.03.2016. Counsel further submits that appointment has already been given to 27 candidates from wait list on account of non-joining of selected candidates on or before 08.06.2016. Counsel submits that subsequently the fresh recruitment process was initiated by the respondents and the vacant posts were merged in the subsequent selection process and the subsequent selection process has also been completed. Under these circumstances, the petitioner is not entitled to get any relief from this Court. In support of their contention, they have placed reliance upon the following judgments:
1. Raj Rishi Mehra and Ors. vs. State of Punjab and Another (Writ Petition (Civil) No.73/2013).
2. Maharashtra Public Service Commission vs. Pankaj Kumar C. Dabhire & Ors. (Writ Petiton No.5612/2015).
7. Counsel submits that the petitioner has no vested right to get appointment only on the basis of the7 fact that his name finds place in the reserve/waiting list. Counsel submits that under these circumstances, interference of this Court is not warranted.
Analysis and reasons:
8. Heard and considered the rival submissions made at the Bar and perused the material available on the record.(Downloaded on 11/11/2023 at 08:58:48 PM)
[2023:RJ-JP:28445] (6 of 22) [CW-14675/2016]
9. The factual matrix of the case as culled out from the record is that selection process for appointment on the post of JLO was initiated by RPSC for filling 150 advertised posts and the result of the process was declared on 23.11.2015 and a reserved waiting list was issued on 03.12.2015. The name of the petitioner figures in the reserved list under the category of Scheduled Tribe (ST) candidate and the first requisition of 115 selected candidates was sent to the State Government on 11.12.2015 including one Raj Kumar Meena (ST candidate) for appointment. Likewise the second list of 25 candidates was also sent to the State Government by RPSC for appointment. The State acted upon the first list on 30.03.2016 and issued appointment order to 115 candidates and directed them to join within 21 days i.e. till 21.04.2016. But 57 candidates did not join the offered posts within the stipulated time of 21 days and further 15 days extension was given to them. Hence, on 04.05.2016, the petitioner submitted a representation to operate the reserved/waiting list. In the meantime, the State Government issued the second list for appointment and granted them 7 days time to join. Due to non joining of several candidates, the appointment of several candidates was cancelled on 09.06.2016 and on the same day the State Government sent a requisition to RPSC to operate reserve list of 27 candidates and in pursuance of the said letter, the RPSC recommended names of 27 candidates for appointment and accordingly, appointments were given to the 27 candidates from the waiting/reserve list.
10. Still several posts remained vacant due to non joining of several candidates from the first and second appointment list (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (7 of 22) [CW-14675/2016] dated 30.03.2016 and ultimately the appointment of the said ST candidate Raj Kumar Meena stood cancelled on 09.12.2016. But prior to that the petitioner approached this Court on 17.10.2016 for seeking directions to the respondents to operate the reserve/ waiting list of remaining candidates and consider the case of the petitioner for appointment on the post of JLO.
11. Now the question which remains for consideration before this Court is that from which date the life of the waiting reserve list would be counted?
12. Rule 24 of Rules of 1981 deals with the procedure of sending the original as well as reserve list to the Appointing Authority. Rule 24 is reproduced as under:
"24. Recommendations of the Commission- The commission shall prepare a list of the candidate whom they consider suitable for appointment to the posts concerned and arranged in the order of merit. The Commission shall forward the list to the Appointing Authority.
Provided that the Commission may to the extent of 50% of the advertised vacancies, keep names of suitable candidate on the reserve list. The commission may, on requisition, recommend the names or 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 the Appointing Authority."
13. Proviso of Rule 24 of the Rules of 1981 specifies that reserve list would be sent to the appointing authority within six months from the date on which the original list is forwarded by the Commission.
14. The Department of Personnel issued a Circular on 19.07.2001 to clarify the procedure for operating the reserve list. As per the Circular, a candidate in the waiting list in the order of (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (8 of 22) [CW-14675/2016] merit has a right to claim and to get appointment if one or the other selected candidate does not join or is not appointed for any reason.
15. Then the next question which came before the Department of Personnel was about how to calculate the six months period to operate the reserve list. To clarify the situation, a Circular was issued on 13.01.2016 by the Department of Personnel, Government of Rajasthan and the same reads as under:
"jktLFkku ljdkj dkfeZd ¼d&2½ foHkkx dzekad% i-7 ¼2½ dkfeZd @d&2@81 ikVZ t;iqj] fnukad 13@01@2016 1- leLr vfr0 eq[; lfpo@izeq[k 'kklu lfpo@'kklu lfpo@fof'k"B 'kklu lfpo 2- leLr foHkkxk/;{k ¼ laHkkxh; vk;qDr ,oa ftyk dysDVlZ½ lfgr ifji= fo"k;%& jktLFkku yksd lsok vk;sx ds ek/;e ls lh/kh HkrhZ dh izfdz;k esa vkjf+{kr lwph dk izorZuA dkfeZd foHkkx }kjk tkjh ifji= fnukad 19-07-2001 esa lh/kh HkrhZ dh izfdz;k esa vkjf{kr lwph ds izorZu ds laca/k esa izko/kku bl izdkj gSa %& "Provided that the commission may to the extent of 50% of the advertised vacancies, keep names of suitable candidates on the reserve list. The names of such candidates may on requisition, be recommended in the order of merit to Government within six months from the date on which the original list is forwarded by the Commission to Government."
jkT; ljdkj ds /;ku esa yk;k x;k gS fd vk;ksx }kjk p;fur vH;fFkZ;ksa dh ewy lwph ,d gh ckj esa iw.kZ :i&ls Hkstk tkuk O;kogkfjd :i&ls laHko ugha gks ikrk gSA vH;fFkZ;ksa ds vkosnu i=ksa dh ik=rk tkap ,oa 'kS{kf.kd ;ksX;rkvksa] lR;kiu vkfn esa] vusd ekeyksa esa u pkgrs gq, Hkh] dkQh le; yx tkrk gSA dqN izdj.kksa esa gksus okys foyac ds fy, leLr vH;fFkZ;ksa dh lwph dks jksds j[kuk Hkh mfpr ugha gksrk gSA ,slh fLFkfr esa eq[; p;u lwph ¼vfHkLrkouk½ ,d ckj esa u Hksth tkdj ,dkf/kd VqdM++ksa esa izsf"kr dh tkrh gSA ftlls ;g nqfo/kk mRiUu gks tkrh gS fd Åij n'kkZ, x, izko/kkukuqlkj izrh{kk lwph dh izorZuh;rk ds 6 ekg dh vof/k dh x.kuk fdl vfHkLrkouk frfFk ls dh tkosA bl dze esa vk;ksx ls izkIr izLrko ,oa jkT; ,oa ns'k dh mPp vnkyrksa ls izkIr fu.kZ;ksa dk vuq'khyu dj] jkT; ljdkj }kjk ;g fu.kZ; fy;k x;k gS fd ifji= fnukad 19-07-2001 esa ewy vfHkLrkouk frfFk ls 6 ekg dh x.kuk dk tks izko/kku gS] ml vof/k dh x.kuk vk;ksx vFkok vU; ,tsalh }kjk izsf"kr dh tkus okyh ¼ewy½ vfHkLrkouk lwph ds vafre Hkkx dks izsf"kr djus dh fnukad ls dh tkosxhA ;g fLFkfr mu izdj.kksa ij Hkh ykxw gksxh] tgka fdUgha dkj.kksa ls vk;ksx vFkok vU; ,tsalh }kjk la'kksf/kr ifj.kke@iqu% ifj.kke tkjh fd;k tkrk gS] c'krsZ (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (9 of 22) [CW-14675/2016] ,sls la'kksf/kr ifj.kke@iqu% ifj.kke ls iwoZ HkrhZ dh laiw.kZ izfdz;k iw.kZ u gqbZ gks] rFkk fu;qDr vH;fFkZ;ksa ds mifLFkfr u nsus ls izkIr fjfDr;ksa dks vkxkeh HkrhZ dh vFkZuk esa lfEefyr u dj fy;k x;k gksA vfHkLrkouk Hkstrs le; HkrhZdÙkkZ vk;ksx vFkok vU; ,tsalh dks ;g Hkh lqfuf'pr djuk gksxk fd mlds }kjk Hksth tkus okyh vafre ¼ewy½ vfHkLrkouk esa bl vk'k; dh lwpuk Hkh vafdr dh tkosA lHkh fu;qfDr izkf/kdkfj;ksa ls vis{kk dh tkrh gS fd os orZeku esa fopkjk/khu izdj.kksa lfgr Hkfo"; esa bu funsZ'kksa ds vuqlkj dk;Zokgh lqfuf'pr djsxsaA fdUrq] ftu ekeyksa esa izfdz;k iw.kZ gks pqdh gS] mUgsa iqu% ugha [kksyk tk,xkA ¼vkyksd xqIrk½ 'kklu lfpo"
16. The aforesaid Circular dated 13.01.2016 has been interpreted in detail by the Coordinate Bench of this Court in the case of Vinod Kumar Gupta and Ors. Vs. State of Raj. and ors. S.B. Civil Writ Petition No. 5694/2019 in the following words as under:
"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 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.
xxx xxxx xxx xxx 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 (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (10 of 22) [CW-14675/2016] 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 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 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 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. (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (11 of 22) [CW-14675/2016] 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 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.
xxx xxxx xxx xxx 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 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."
17. In the matter of State of Jammu & Kashmir & Ors. Vs. Sat Pal reported in 2013 (11) SCC 737, the Hon'ble Apex Court has held that a waiting list commence to operate after the vacancies for which the recruitment process has been conducted and the same has not been filled up and it has been held in para 10, 11 and 12 as under:
"10. It is not a matter of dispute, that the Respondent Sat Pal participated in a process of selection for recruitment against the post of Junior Engineer (Civil) Grade-II. It is also not in dispute, that his name figured (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (12 of 22) [CW-14675/2016] in the merit/select list of scheduled caste candidates. Trilok Nath, who had been offered appointment against the post of Junior Engineer (Civil) Grade-II on 22.4.2008, did not join, despite the said offer of appointment. The instant fact is fully substantiated from the order dated 5.5.2008 issued by the Chief Engineer (R&B) Department, Jammu. Even though candidates who were higher in merit, were offered appointment to the post of Junior Engineer (Civil) Grade-II, for which recruitment was held, some of such posts remained vacant on account of the fact that persons higher in merit to the Respondent Sat Pal had declined to join, despite having been offered appointment. At least one such vacancy offered to Trilok Nath never came to be filled up. In such a situation, the claim of the Respondent Sat Pal whose name figured in the merit/select list, ought to have been offered appointment against the said post. The claim of Respondent Sat Pal could not have been repudiated, specially on account of his assertion, that his name in the merit/select list amongst Scheduled Caste candidates immediately below the name of Trilok Nath, was not disputed even in the pleadings before this Court. It is not the case of the Appellants before this Court, that any other candidate higher than Sat Pal in the merit/select list is available out of Scheduled Caste candidates, and can be offered the post against which Trilok Nath had not joined.
11. In view of the factual position noticed hereinabove, the reason indicated by the Appellants in declining the claim of the Respondent Sat Pal for appointment out of the waiting list is clearly unjustified. 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 (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (13 of 22) [CW-14675/2016] 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, 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."
18. Similarly, in the case of Manoj Manu and Ors. Vs. Union of India and ors. reported in 2013 (12) SCC 171, the Hon'ble Supreme Court issued directions for sending the names from waiting list against the names of the persons who did not join the (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (14 of 22) [CW-14675/2016] offered posts and such posts remained vacant due to their non- joining. The following observations and directions were issued in para 9, 12, 13, 14 and 16 and the same are reproduced as under:
"9. It can be clearly inferred from the reading of the aforesaid that it is not the case where any of these persons initially joined as Section Officer and thereafter resigned/left/promoted etc. thereby creating the vacancies again. Had that been the situation viz. after the vacancy had been filled up, and caused again because of some subsequent event, position would have been different. In that eventuality the UPSC would be right in not forwarding the names from the list as there is culmination of the process with the exhaustion of the notified vacancies and vacancies arising thereafter have to be filled up by fresh examination. However, in the instant case, out of 184 persons recommended, six persons did not join at all. In these circumstances when the candidates in reserved list on the basis of examination already held, were available and DoP&T had approached UPSC "within a reasonable time" to send the names, we do not see any reason or justification on the part of the UPSC not to send the names.
12. It is, thus, manifest that though a person whose name is included in the select list, does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the Government not to fill up the required/advertised vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once, it is found that the decision of the Government is based on some valid reason, the Court would not issue any Mandamus to Government to fill up the vacancies.
13. In the present case, however, we find that after the UPSC sent the list of 184 persons/recommended by it, to the Government for appointment six persons out of the said list did not join. It is not a case where the Government decided not to fill up further vacancies. On the contrary DoP&T sent requisition to the UPSC to send six names so that the remaining vacancies are also filled up. This shows that in so far as Government is concerned, it wanted to fill up all the notified vacancies. The requisition dated 20th November 2009 in this behalf was in consonance with its Clause 4(c) of O.M. dated 14th July 1967. Even when the Government wanted to (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (15 of 22) [CW-14675/2016] fill up the post, the UPSC chose to forward names of three candidates.
14. There is a sound logic, predicated on public interest, behind O.M. dated 14th July 1967. The intention is not to hold further selection for the post already advertised so as to save unnecessary public expenditure. At the same time, this very O.M. also stipulates that the Government should not fill up more vacancies than the vacancies which were advertised. The purpose behind this provision is to give chance to those who would have become eligible in the meantime. Thus, this OM dated 14th July 1967 strikes a proper balance between the interests of two groups of persons. In the present case since the requisition of the DoP&T contained in communication dated 20th November 2009 was within the permissible notified vacancies, the UPSC should have sent the names of six candidates instead of three.
16. It is not the case of the UPSC that under no circumstances the names are sent by way of supplementary list, after sending the names of the candidates equal to the vacancies. As per the UPSC itself, names of "repeat/common" candidates are sent and in the present case itself, three names belonging to such category were sent. However, exclusion of the persons like the Appellants has clearly resulted in discrimination as one of those three candidates Rajesh Kumar Yadav had also secured 305 marks and once he was appointed to the post in question, the Appellants with same marks have been left out even when the vacancies were available."
19. Perusal of the above Circular dated 13.01.2016 clearly indicates that six months period for operating the reserve list would be calculated w.e.f. the date when the last candidate from the original select list is offered appointment by the State Government. Hence, in this case, the last original appointment list of 25 candidates was issued on 23.05.2016 for giving them appointment. Hence, the six months would be calculated w.e.f. 23.05.2016 as per the Circular dated 13.01.2016. Meaning thereby that the reserve list was alive till 23.11.2016 prior to commencement of short recruitment process and prior to that several candidates did not join the offered post and the (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (16 of 22) [CW-14675/2016] appointment of the same were cancelled and the appointment of the non joiner ST candidate Raj Kumar Meena was cancelled on 09.12.2016. But prior to cancellation of his appointment the petitioner approached this Court on 17.10.2016 i.e. before demise of the reserve list. But the State has failed to send requisition of all the vacant post to RPSC before 23.11.2016. But the State sent only one requisition on 09.06.2016 to the RPSC for sending names of only 27 candidates and no further letter or requisition was sent to fill the remaining unfilled post for the reason best known to them. It is worthy to note here that the next recruitment process was initiated by respondents in the year 2018 but prior to that the petitioner approached here and knocked the doors of this Court on 17.10.2016. The petitioner has filed this petition before commencement of the fresh and new selection process.
20. The State has failed to come up with any reason whatsoever as to why it did not make requisition from the waiting list from RPSC during this period of six months. It is not the case of State that the State had taken a conscious decision on relevant consideration not to operate the waiting list. In the absence thereof the inaction on the part of the State in not operating the waiting list for six months commencing from 23.05.2016 would be illegal and arbitrary and in such case, if the wait listed candidate like the petitioner approaches the Court of law, provided on the date of filing of the writ petition, the right was subsisting on account of currency and the validity of the reserve list, relief could be granted in view of the decision of the Hon'ble Apex Court in the case of Purshottam Vs. Chairman M.E.S.B. reported in 1996 (6) SCC 49, wherein it has been held that right of a candidate (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (17 of 22) [CW-14675/2016] cannot be snatched only because the said panel has expired and the post has been filled by someone else.
21. The issue involved in this petition has been set at rest by the Division Bench of this Court in the case of State of Rajasthan and Ors. vs. Dr. Shri Krishan Joshi and Anr. (DB Civil Special Appeal (Writ) No.81/2020) in para 41, 44, 45 and 46 as under:
"41. In view of the aforesaid consideration, we have to hold that, in the present case, under the scheme of Rule 20 of the Rules of 1973, as explained and interpreted in various Division Bench judgments of this Court, the waiting list would commence to operate when the candidates placed in the main merit list were offered appointment and they did not join.
44. One of the serious issue raised by the State & RPSC to challenge the order of the learned Single Judge is that in any case, the writ petition was filed by the respondents when the merit list had already expired and was no longer subsisting, therefore, relief could not be granted. It has been argued before us that even if it is held that the merit list would commence to operate on 22.04.1998 when respondents No.4 & 5 herein (Respondents No.5 & 6 in the writ petition) were offered appointment, but they did not join, the period of six months would expire on
22.10.1998. It is not a case where the petition was filed while the list was subsisting and to say that the writ petitioners had a subsisting right of being considered for appointment against the vacancies which remained unfilled on account of non joining of respondents No.4 & 5 herein (Respondents No.5 & 6 in the writ petition), only on this ground, the writ petition ought to be dismissed. In support of this contention, learned counsel for the State and RPSC has placed reliance upon the decision of the Hon'ble Supreme Court in the cases of State of Bihar and Others Versus Amrendra Kumar Mishra, (2006) 12 Supreme Court Cases 561 & State of Orissa & Another Versus Rajkishore Nanda & Others, AIR 2010 Supreme Court 2100, which were relied upon by the Division Bench of this Court in the Case of Dr. Rakesh Meena Versus Rajasthan Public Service Commission & Others (Supra), as far as this issue is concerned. Our attention has also be invited to similar observations made by the Hon'ble Supreme (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (18 of 22) [CW-14675/2016] Court in the case of State of UP & Others Versus Harish Chandra & Others (Supra).
45. The legal position in this regard has been considered by the Hon'ble Supreme Court in the case of State of UP & Others Versus Harish Chandra & Others (Supra), It was held as below:-
"Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the writ petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law........
But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.1987 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court."
46. The aforesaid view was reiterated by the Hon'ble Supreme Court in the case of State of Bihar and Others Versus Amrendra Kumar Mishra (Supra), relying upon the observations made in the case of State of UP & Others Versus Harish Chandra & Others (Supra).
Again in the case of State of Orissa & Another Versus Rajkishore Nanda & Others (Supra), where on facts, it was found that the person had approached the Court after expiry of the select list, it was held as below:-
"15. Select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.(Downloaded on 11/11/2023 at 08:58:48 PM)
[2023:RJ-JP:28445] (19 of 22) [CW-14675/2016] It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the Select List. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the Court at a belated stage. (Vide J. Ashok Kumar v. State of Andhra Pradesh & Ors., (1996) 3 JT (SC) 225; State of Bihar & Ors. v. Md. Kalimuddin & Ors., AIR 1996 SC 1145: (1196 AIR SCW 691); State of U.P. & Ors. v. Harish Chandra & Ors., AIR 1996 SC 2173: (1996 AIR SCW 2785); Sushma Suri v. Government of National Capital Territory of Delhi & Anr., (1999) 1 SCC 330; State of U.P. & Ors. v. Ram Swarup Saroj, (2000) 3 SCC 699: (AIR 2000 SC 1097: 2000 AIR SCW 779); K. Thulaseedharan v. Kerala State Public Service Commission, Trivendrum & Ors., (2007) 6 SCC 190: (AIR 2007 SC (Supp) 253: 2007 AIR SCW 3211); Deepa Keyes v. Kerala State Electricity Board & Anr., (2007) 6 SCC 194: (2007 AIR SCW 7311); and Subha B. Nair & Ors. (AIR 2008 SC 2760: 2008 AIR SCW 4591) (supra)."
22. In view of the narrated facts mentioned hereinabove, it is safe to conclude that the petitioner approached this Court on 17.10.2016 i.e. before expiry of the wait list on 23.11.2016, i.e. during currency of the period of the waiting list and at that time his right to be considered for appointment was existing.
23. This Court finds no force in the averments of the counsel for the respondents that the remaining posts remained unfilled and were adjusted in the next recruitment process initiated in the year 2018. If the respondents were at fault in not operating reserve wait list during its currency till 25.11.2016, then the petitioner cannot be blammed for that. The petitioner was quite vigilant about his right of consideration at every moment right from the beginning when the selected candidates did not join the offered post well within the stipulated period fixed by the respondents. Immediately, the petitioner made representation to the State on 04.05.2016 to operate the reserve wait list, but the State kept its (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (20 of 22) [CW-14675/2016] ears and eyes closed and has not acted to operate the wait list on the vacancies which remained unfilled due to non joining of 57 candidates.
24. In the case of State of UP Vs. Ram Swarup Saroj reported in 2000(3) SCC 699, the Hon'ble Apex Court held that appointment cannot be denied because currency of panel (select list expired during pendency of litigation) particularly when vacancies were available for making appointment. In para 8 and 10, it has been held as under:
"8. At the hearing the learned Counsel for the State of Uttar Pradesh raised mainly two contentions. Firstly, it was submitted that the select list having been prepared in November, 1996 had ceased to be valid on expiry of one year from the date of preparation thereof and an appointment from such list could not now be directed. Reliance has been placed on several circulars issued by the State of Uttar Pradesh from time to time laying down the validity of a select list for appointment to State services at one year. Second plea raised on behalf of the appellant is that the respondent had filed the writ petition by impleading only the State of Uttar Pradesh and U.P. Public Service Commission as respondents before the High Court but had omitted to implead the High Court of Uttar Pradesh as a party in the writ petition; as such no binding direction could be issued as in the matter of judicial appointments the State Government is not free to act of its own unless and until the High Court recommends an appointment or concurs in any proposal made by the State Government.
10. Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalised in the month of November, 1996 and the writ petition was filed by the respondent in the month of October, 1997, i.e., before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of (Downloaded on 11/11/2023 at 08:58:48 PM) [2023:RJ-JP:28445] (21 of 22) [CW-14675/2016] litigation, we cannot decline to grant the relief to which the respondent has been found entitled to by the High Court. We may place on record that during the course of hearing of SLP before this Court, on 29.9.1999 we had directed the learned Additional Advocate General for the State of U.P. to bring on record on affidavit the status of present recruitment of the judicial officers and the present vacancy position in the subordinate judiciary. In the affidavit of Joint Secretary, Department of Appointment, State Government, Uttar Pradesh sworn in on 4.11.1999 and filed before this Court it is stated that as on 14.10.1999 there were 231 vacancies existing in the cadre of Munsif Magistrates (now Civil Judge, Junior Division/Judicial Magistrates). That being the factual position we see no reason why the direction made by the High Court should be upset in an appeal preferred by the State of Uttar Pradesh.
25. In the case of Purshottam (supra), the Hon'ble Apex Court has held that the equitable relief should not be denied if the action of the appointing authority in not operating the waiting list is found to be illegal.
26. Hence, in this case, the vacancy offered to Raj Kumar Meena had remained unfilled due to his non joining in the stipulated time and the petitioner is next in merit under ST category, therefore, he has a valid claim to get his consideration for his appointment on the vacant post.
Conclusion:
27. In view of the discussion made hereinabove, this petition succeeds and the same is hereby allowed with direction to the respondents to consider the case of the petitioner for appointment on the post of Junior Legal Officer, if he is otherwise found eligible and suitable. The petitioner shall be kept at the bottom of seniority list and he would be entitled to get the actual monetary benefits w.e.f. the date of his joining.
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28. The needful be done within a period of three months from the receipt of certified copy of this order.
29. Stay application and all application(s) (pending, if any) also stand dismissed.
30. No order as to costs.
(ANOOP KUMAR DHAND),J Kud/703/pcg (Downloaded on 11/11/2023 at 08:58:48 PM) Powered by TCPDF (www.tcpdf.org)