Rajasthan High Court - Jaipur
Dr. Mathura Lal vs The State Of Rajasthan And Anr. on 25 May, 1995
Equivalent citations: 1995(3)WLC723, 1995(2)WLN287
JUDGMENT V.S. Kokje, J.
1. The petitioner was a candidate at the Selection held by Rajasthan Public Service Commission (for short 'the RPSC hereinafter), for a post of Assistant Professor (Lecturer) in Anaesthesiqlogy. The Selection took place against advertisement No. 7/92 and 8/92. The number of posts for which Selections were to be made were ten. The Selection List was declared by the RPSC on September, 18, 1993, petitioner's name did hot find place in the Selection List. But according to the information given to by the RPSC on October 1, 1993, vide Annexure/2, the petitioner's name was at No. 2 in Reserve List. Appointments were given to ten persons in the Selection List by the Order dated October 19, 1993 on the basis of the main list of the Selection List of candidates forwarded by the RPSC to the Government on September 24, 1993. On February 11, 1994, the Government informed the RPSC that one post over and above the ten posts created in the year 1992 was already vacant and therefore, name from the Reserve List be sent for appointment. On March 25, 1993, another requisition was sent that four posts have become available and therefore, names of four persons be sent from the Reserve List for appointments on the post. The RPSC did not send Reserve List though both the requisitions were within the period of six months from the forwarding of the Selection List, as required by the Rajasthan Medical Service (Collegiate Branch), Rules, 1962 (for short 'the Rules' hereinafter). The stand taken by the RPSC was that vacancies coming into existence after issuance of advertisement and after filling the vacancies, cannot be taken into account for filling of the posts from Reserve List. The Government was accordingly informed on May 20, 1994. The petitioner therefore, filed this petition complaining that the RPSC was unreasonably withholding sending of the Reserve List. In reply, the RPSC stuck to its stand that the vacancies for which requisition of the Reserve List was made cannot even be filled in by the candidate from the Reserve List. The RPSC also took stand that Jaipur Bench of this Court in a writ petition filed by one Miss Vandana Manga has stayed the appointment on the posts from Reserve List on April 22, 1994. In that petition, the RPSC took the stand that vacancies would not be filled in from the Reserve List and accordingly the Reserve List was not being sent by the RPSC to the Government though the requisition had been received, On the RPSC taking this stand the petitioner in that case Miss Vandana Mangal got the petition disposed of as infruotuous by stating that the period of calling the Reserve List has expired on September 23, 1993. According to the RPSC, it cannot now act against the stand taken by it before the Jaipur Bench of this Court and no direction contrary to the stand taken by it before the Jaipur Bench could be given by this Court in this case.
2. The main question in this case is whether the RPSC has any power to withhold the Reserve List even when the requisition is received from the Government within time on the ground that the posts which the Government wanted to fill in were not available to be filled-in from the main or Reserve List concerned. On repeatedly being asked as to what is the scope of the role of the RPSC could claim in the matter and under what provision such a right to refuse to send the Reserve List was being exercised by the RPSC, the learned Counsel for the respondent relie on Rule 20 of the Rules and what according to him was a Judge-made law. Rule 20 of the Rules, reads as under:
20. Recommendations of the Commission: The Commission shall prepare a list of the candidates whom they consider suitable for appointment to the posts concerned arranged in the order of merit and forward the same to Government.
Provided that the Commission may to the extend of 50% of the advertised vacancies, keep name 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.
3. It enjoins upon the RPSC to prepare the list of the suitable candidates for appointment to the posts concerned arranged in the Order of Merit and forward it to the Government. It is also provided that apart from the merit list, the list of candidates equivalent to 50% of the advertised vacancies shall be published as Reserve List. The names of such candidates in the Reserve List are to be recommended in order of merit to the Government, if requisitioned for the same is received within six months from the date on which the original list was forwarded to the Government. This Rule does not speak of any veto power given to the RPSC to sit in judgment over the propriety or legality of filling-in vacancies which were not available on the date of advertisement. If we go by the plain language of the Rule, the RPSC has to prepare the merit list and forward it to the Government. It has to prepare a Reserve List of candidates to the extent of 50% of advertised vacancies and if the requisition for names from the Reserve List is received from the Government within six months from the date on which the original list was forwarded by the RPSC to the Government, it has to recommend the names from the Reserve List in order of merit. Under the Rules, therefore the RPSC has no power to decide or sit in judgment over whether the vacancies were available for being filled-in or not. That is the job entrusted to the Government and the Government has to decide whether particular vacancy should be filled-in from the Reserve List or not. If the Government decision on this point is wrong or if some body is aggrieved by the decision, he has to challenge it in appropriate proceedings and it is not for the RPSC to take cudgles on behalf of any such person.
4. Let us now turn to the case law cited on the point.
5. The learned Counsel for the petitioner has relied on the decision of the Supreme Court in Miss Neelima Shangal PHD. candidate v. State of Haryana and Ors. . Following observations in this decision are apposite and are therefore being quoted hereunder:
Therefore, it appears that the duty of the Public Service Commission is confined to holding the written examination, holding the viva voce test and arranging the order of merit according to marks among the candidates who have qualified as a result of the written and the viva voce tests. Thereafter the Public Service Commission is required to publish the result in the gazette and, apparently, to make the result available to the government, the Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withhold the names of any qualified candidates.
The reason given by the Public Service Commission for not communicating the entire list of qualified candidates to the government is that they were originally informed that them were only 28 vacancies at all. Nor is it expected to withhold the full list of successful candidates on the ground that only a limited number of vacancies are available.
6. Some more cases were also cited on behalf of the petitioner but since they were on the point as to how vacancy has to be reckoned for being filled-in are not relevant as in this case, this Court is not going to decide as to whether the Government's stand that the vacancies did exist and to be filled-in from the Reserve List were right or wrong.
7. On behalf of the RPSC, the decisions in State Bihar and Ors. v. Secretariat Assistant Successful Examinees Union 1986 and Ors. , J and K Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors. and State of Bihar and Anr. v. Madan Mohan Singh and Ors. 1994 Supp (3) SCC 308 were cited but since they are on the point as to whether posts were available for filling vacancies or not and as this Court is not going to decide in this case as to whether the Government's decision that the vacancies were available to be filled-in from the Reserve List was legal and appropriate or not, the decisions are wholly irrelevant for the purpose of this case.
8. The learned Counsel for the respondent heavily relied on the decision of the Supreme Court in Gujrat State Dy.Executive Engineers Association v. State of Gujarat and Ors. 1994 Supp (2) SCC 591 and pointed out that power of the High Court to direct the appointment of candidates in waiting list is limited and unless the Government had acted arbitrarily, the High Court could not direct the Government to appoint the candidate from the waiting list for the vacancies of the relevant year. Again this decision is not on the point as to whether the RPSE could be entitled ot refuse to send the name from the Reserve List on the ground that the posts could not be filled-in from the list.
9. The learned Counsel for the respondent has also brought to my notice a Division Bench decision in Smt. Nita Jain and Ors. v. State of Rajasthan and Ors. D.B. Civil Spl. Appeal No. 671/92, decided on 1.12.1993. This decision also does not answer the question involved in this case about the scope of the power of the RPSC to withhold Reserve List or refuse to recommend names from the Reserve List; Thus the contention of the RPSC that its action in withholding recommendation from the Reserve List has sanction of the judge-made law is also without any foundation. So far as the order passed by the Jaipur Bench in Miss Mongol's case, the petitioner was not a party in that case and had no control over the goings on in that case. If any understanding or undertaking has been given by the RPSC to the Court in that case it came to an end with the disposal of the case as infructous. The petitioner in that case got the petition dismissed as infructuous on the ground that the time for sending the names from the Reserve List had expired and therefore, the petition had become infructuous. Actually, the time limit imposed by the proviso of Rule 20 of the Rules is only for sending requisition and it is not necessary that the appointments have to be made or the recommendations have to be sent within a period of six months from the communication of the first Selection List to the Government. It appears that on an erroneous view of the provision, the petitioner in that case got the petition dismissed as infructuous. In any case, it will have no bering on this case because there was no order of the Court in this case and the petition has been disposed of as infructuous.
10. For the aforesaid reasons, this petition is allowed. The decision of the RPSC not to recommend the name from the Reserve List is quashed and the RPSC is directed to forward the names of candidates placed in Reserve List in response of the requisition dated February 11, 1994 and March 15, 1994 sent by the Government in this regard. This shall be done within fifteen days from today. On receiving the names from the Reserve List, the Government may take action on it as it deems fit. If any person is aggrieved by the action of the Government in appointing or not appointing a person, such person shall be free to have recourse to appropriate remedy before the appropriate Court. The petitioner has also brought to the notice of the Court an advertisement issued during the pendency of this case wherein the vacancy against which appointment is claimed by the petitioner is included. It is therefore directed that the respondents shall not make any selection or appointment against the vacancies for which names of candidates in Reserve List were requisitioned on February 11, 1994 and March 15, 1994 without first deciding the fate of the petitioner within fifteen days of the receipt of recommendation of the RPSC from the Reserve List.
11. There shall be no order as to costs.