Rajasthan High Court - Jaipur
Aakriti Saxena D/O Shri Niranjan ... vs State Of Rajasthan on 2 May, 2023
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2023/RJJP/009106]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5652/2022
Aakriti Saxena D/o Shri Niranjan Prakash Saxena, Aged About 24
Years, Resident Of 165, Ahsok Vihar, Jagatpura, Jaipur (Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary,
Agriculture Department, Government Secretariat, Jaipur
(Raj.)
2. The Agriculture Commissionerate, Through Its
Commissioner, Panth Krishi Bhawan, Jaipur.
3. Rajasthan Public Service Commission, Through Secretary,
Ghooghra Ghati, Ajmer (Raj.)
----Respondents
For Petitioner(s) : Mr. Tanveer Ahamad
Ms. Sara Praveen
For Respondent(s) : Mr. Rajesh Maharshi, AAG with
Ms. Kinjal Surana
Mr. Nikhil Saini
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
02/05/2023
1. Heard counsel for both parties at length on merits of writ petition and perused the material placed on record.
2. Petitioner has laid the instant writ petition under Article 226 of the Constitution of India seeking direction against respondents to consider her candidature for selection and appointment on the post of Assistant Statistical Officer (ASO), pursuant to advertisement dated 06.07.2020. Since petitioner stands at rank No.1 in the reserve list, therefore, petitioner has laid her claim against the post which has fallen vacant due to not joining by Mr. Sunil Machhera, a candidate from the main select list of 11 candidates to whom offer for appointment on the post of ASO in general category was issued by the State authorities vide order (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (2 of 19) [CW-5652/2022] dated 23.11.2021 but he declined to join on the post on 28.02.2022. Hence, to fill up this unfilled post pursuant to advertisement dated 6.7.2020, petitioner has filed the instant writ petition.
3. The factual matrix of the case is that the RPSC vide advertisement dated 06.07.2020 notified 11 vacancies of ASO (5 General+1 General Women+1 SC+1 ST + 2 OBC+ 1 EWS= total
11) for appointment in the Agriculture Department under the Rajasthan Agriculture Subordinate Service Rules, 1978 (hereinafter "the Rules of 1978"). The petitioner being eligible applied to participate in the recruitment process by holding written examination and interview in the General category. RPSC after completion of selection process and final result came to be declared on 03.08.2021. Petitioner was placed in reserve list at merit No.1. From the main list, the select list out of 11 selected candidates, one candidate namely Mr. Sunil Machhera though was of OBC category but since he scored more marks than the cut off of general category, hence, Mr. Sunil Machhera was selected against the post of General category. RPSC forwarded name of 10 candidates on 13.08.2021 and name of Mr. Sunil Machhera on 26.08.2021 to the Agriculture Department for appointment. The Department proceeded for document verification of such selected candidates and finally issued appointment order on 23.11.2021. It appears that Mr. Sunil Machhera did not join pursuant to appointment order dated 23.11.2021 and sought extension of period for joining on account of preparing for India Statistical Services. The Department, vide order dated 28.12.2021 (Ann-8) extending the period for joining on the post to Mr. Sunil Machhera (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (3 of 19) [CW-5652/2022] by 10.5.2022. In between the extended period, Mr. Sunil Machhera submitted an application dated 28.02.2022 before the Agriculture Department that in view of his selection in India Statistical Services-2021, he will not join on the post of Assistant Statistical Officer pursuant to his appointment order dated 23.11.2021. Thus, one post of Assistant Statistical Officer in General category fallen vacant on 28.02.2022 due to not joining by Mr. Sunil Machhera, as disclosed by him through application dated 28.02.2022 (Ann-9). Hence, soon after having knowledge of this fact, petitioner submitted application dated 29.03.2022 (Ann-
11) before the Department itself, with a request that she stands at rank No.1 in reserve list, therefore, the vacant post of General category be filled from the reserve list and candidature of petitioner be considered for appointment on such vacant post of Assistant Statistical Officer. Since no action was taken by the Department, therefore, petitioner filed the instant writ petition on 05.04.2022.
4. The case of petitioner is that when Mr. Sunil Machhera has expressed his willingness to not join on the post of Assistant Statistical Officer in General category by submitting written application dated 28.02.2022, therefore, Department ought to have initiated action to fill the vacant post of Assistant Statistical Officer in General category through the candidate from reserve list and the Department was required to send and operate the reserve list and requisition to the RPSC, to forward the name of petitioner, who stands at merit No.1 in the reserve list. It has been submitted that the Department has not taken a conscious decision not to fill the vacant post from reserve list and due to inaction on the part of (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (4 of 19) [CW-5652/2022] Agriculture Department in not calling upon the RPSC to operate the reserve list despite of filing the application by petitioner on 29.03.2022, name of petitioner was not forwarded by the RPSC to the Agriculture Department and consequently the candidature of petitioner has not been considered for appointment despite of availability of the vacant post of Assistant Statistical Officer in General category and just because of non operating the wait list prepared by the RPSC, petitioner has suffered from non- consideration of her candidature for appointment.
5. Counsel for petitioner has argued that the period to operate the reserve list/wait list should be reckoned from 28.02.2022, when candidature from the main select list Mr. Sunil Machhera decline to join and since petitioner has put her right for consideration of appointment against his vacant post by operating the reserve/wait list within a period of six months therefore, a writ of mandamus be issued against respondents to consider the candidature of petitioner for appointment on the post of Assistant Statistical Officer, by operating the reserve/wait list. Counsel for petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in case of State of Jammu & Kashmir Vs. Sat Pal [(2013) 11 SCC 737] and the recent judgment of the Division Bench of this Court in case of State of Rajasthan Vs. Dr. Shri Krishan Joshi: D.B. Civil Special Appeal (Writ) No.81/2020 and other connected appeals decided on 13.12.2022.
6. Respondents No.1 and 2- State have not been disputed the factual matrix as pleaded by petitioner in the writ petition and admitted that against 11 post of Assistant Statistical Officer (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (5 of 19) [CW-5652/2022] advertised on 06.07.2020, the RPSC sent list of 10 selected candidates of 13.08.2021 and one selected candidate namely Mr.Sunil Machhera on 26.08.2021, thereafter, the process of document verification was undertaken by the Department and a common appointment order dated 23.11.2021 was issued in respect of all selected candidates to join. It has been admitted that the name of Mr. Sunil Machhera, a candidate of OBC, was selected against post of General category but he did not join duties, pursuant to his appointment order dated 23.11.2021 rather asked for grant of an extension of six months. His Application for extension for the period of joining was considered in view of circular of DOP dated 18.10.1997 and he was granted extension and was promoted to join duties till 10.05.2022 vide order dated 28.12.2021. It has not been disputed that Mr. Sunil Machhera gave written information of not joining on 28.02.2022, but the State has taken a defence that by that time it means up to 28.02.2022, the period of six months to operate the wait list has expired, therefore, no requisition was sent to RPSC to operate the wait list. According to respondents-State in view of circular of DOP dated 27.12.2021, the period of six months to operate the wait list is required to be reckoned from the date when RPSC forwarded the list of selected candidates and therefore, in the present case, period be reckoned w.e.f. 13.08.2021 and after expiry of six months on 12.02.2022, the life span of reserve list stood expired. Mr. Sunil Macchera gave information of not joining on 28.02.2022, it means after expiry of the life span period of six months of reserve list. Therefore, in backdrop of such factual matrix, the grievance of petitioner against the State, for not taking initiation (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (6 of 19) [CW-5652/2022] to operate the wait list despite of falling vacant one post due to not joining of Mr. Sunil Machhera from the main list, is of no consequence and the writ petition deserves to be dismissed.
7. Respondent No.3 RPSC has submitted separate reply to the writ petition and without disputing the factual matrix of the present case, has placed reliance on Rule 21 of the Rules of 1978 as also on the circular of DOP dated 13.01.2016 to contend that the life span of six months of reserve list had expired on 25.02.2022. According to RPSC, the period of six months to operate reserve list may be reckoned at the most from the last list recommended by the RPSC i.e. 26.08.2021, therefore, computing the six months from that date the lifespan period of reserve list expired on 25.02.2022. It has further been submitted by the RPSC that since no requisition from the Agriculture Department received to operate the reserve list, therefore, there is no default on the part of RPSC.
8. Learned counsel appearing for respondents-State and RPSC have argued in the same tune, that it is true that the post of Mr. Sunil Machhera in General category has fallen vacant and name of petitioner could have been picked from the reserve list to fill that vacancy but since the lifespan period of six months of reserve list has already expired, prior to the date of declining by Mr. Sunil Machhera to join, therefore, the occasion to operate the reserve list did not arise. It has also been argued by the counsel for respondents, that petitioner cannot claim a vested right for appointment against the unfilled post, merely on account of finds place her name in the wait list. Hence, the claim of appointment (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (7 of 19) [CW-5652/2022] by the petitioner in the present writ petition is not liable to succeed.
9. Both counsel for respondents have placed reliance on the judgment of the Division Bench in case of Dr. Rakesh Meena Vs. Rajasthan Public Service Commission: D.B. Special Appeal Writ No.1572/2017 decided on 03.04.2018 to contend that the crucial date to reckon the life time of reserve list cannot be the date when a candidate failed to join on the post pursuant to his appointment, but it should be from the date when select list came to be forwarded by the Commission to the appointing authority as stipulated in the Rules.
10. Heard. Considered.
11. At the outset, factual matrix of the case as narrated in foregoing paragraphs is not in dispute. It is an admitted case of petitioner that she stands at rank no.1 in reserve list, prepared by RPSC in the direct recruitment process for appointment on the post of Assistant Statistical Officer in Agriculture Department under advertisement dated 6.7.2020. It is an admitted position that vacancies are required to be filled under the Rajasthan Agriculture Subordinate Service Rules, 1978. It is admitted case from the side of respondents that against issuance of a common appointment order dated 23.11.2021, appointee Mr. Sunil Machhera who was offered appointment on the post of ASO in general category, did not join on the post and expressed his willingness not to join on the post by submitting an application dated 28.2.2022. It is not in dispute that one post of ASO in general category, against the present recruitment process, fallen vacant, on 28.2.2022 due to not joining by Mr. Sunil Machhera. It (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (8 of 19) [CW-5652/2022] is further undisputed that respondents did not operate the reserve list, to fill up the vacancy arose due to not joining by Mr Sunil Machhera.
Both respondents have taken a common plea that by virtue of Rule 21 of rules of 1978, and as per circulars of the State Government, the lifespan of reserve list had expired, prior to 28.2.2022, when the post of ASO fallen vacant, therefore, there was no occasion to operate the reserve list and to pick up name of petitioner from reserve list. On the contrary, petitioner has claimed that the period to operate the reserve list is required to be recovered from 28.2.2022, when the selected candidate in general category namely, Mr Sunil Machahera, submitted an application declining to join on the post and the reserve list be treated as alive for a period of six months, commencing w.e.f. 28.2.2022. According to petitioner, since the petitioner has putforth her right to consider her candidature for the appointment on the vacant post, by picking name of the petitioner from reserve list, firstly by moving an application dated 29.3.2022 before respondent- Agricultural Department itself and when same was not responded, then petitioner has filed the instant petition on 5.4.2022. Therefore, the legal right of petitioner is required to be enforced by way of issuing a mandamus against respondents to perform their legal obligation to operate the reserve list, in order to fill up the unfilled vacancy of ASO under the present recruitment process. It has been pleaded and submitted by and on behalf of petitioner that in the present case, the State has not taken a conscious policy decision not to operate the reserve list or not to fill up the vacant post of ASO. Therefore, in such eventuality, it is (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (9 of 19) [CW-5652/2022] incumbent upon the State authorities to proceed for filling up the vacancy arose due to not joining of the candidate from the main select list and to requisition the name from the RPSC by operating the reserve list. Since there is inaction on the part of State authorities, in not operating the wait list/reserve list, hence, such inaction on the part of respondents is not only arbitrary but is also violative to the legal and subsisting right of petitioner for consideration of her candidature for appointment against the available vacant post of ASO.
11. Having adverted to the aforesaid factual aspects of the present case and having considered rival contentions of counsel for both parties, in the opinion of this court, following two questions arise for consideration and required to be adjudicated and answered in the present writ petition.
(i) From which date, the period to operate the reserve list be reckoned?
(ii) Whether petitioner exercised her legal right for consideration of her candidature on merits, during currency period of reserve list, or in the other words, whether the right of petitioner was subsisting on the date of institution of present writ petition, to claim issuance of writ of mandamus against respondents? Question No.1
12. In order to deal with the question No.1, it is apposite to advert to Rule 21 of the Rules of 1978, which envisages provision to prepare the reserve list and stipulates the life span period of reserve list. Rule 21 of the rules of 1978 is extracted hair under:
"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 when they consider suitable for appointment to the posts concerned, arranged in the (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (10 of 19) [CW-5652/2022] 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 the Appointing Authority."
13. It is worthwhile to mention that in other government recruitment, similar rule either pari materia or having the same content is in different language is available in the other service rules. The issue in respect of reckoning the lifespan of reserve list is not new but has drawn attention of this High Court as also the Supreme Court on various occasions previously and there are plethora of judgments on the issue. Therefore, it is desirable to sail through the previous decisions, in order to gather the true ratio decidendi and judicial imprimatur as settled by the High Court and by the Apex Court.
14. In case of Satpal (supra), the respondent-original petitioner participated in the process of selection for recruitment against post of Junior Engineer (Civil) Grade-II. The name of Satpal figured in the merit/select list. One of the candidate Mr. Trilok Nath who had been offered appointment against the post of Junior Engineer (Civil) Grade-II, did not join on the post. The name of Satpal in the merit list amongst scheduled caste candidates was figured immediately below the name of Trilok Nath, however, the claim of Satpal to consider his candidature for appointment to fill up the unfilled vacancies, accrued due to not joining of Mr. Trilok Nath, came to be repudiated, fundamentally for the reason that the waiting list issued in respect of that recruitment has outlived (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (11 of 19) [CW-5652/2022] its validity and the vacancy cannot be filled at a belated stage. In such backdrop of undisputed facts, the Supreme Court categorically held that a waiting list commences to operate after the vacancies for which the recruitment process has been conducted have not been filled up. The Supreme Court noted that one Trilok Nath who was offered appointment on 22.4.2008 did not join. The Supreme Court held that validity of waiting list period would therefore commences from 22.4.2008.
15. The dictum of the Supreme Court, in case of Satpal (supra) has been followed by the Division Bench of Rajasthan High Court at principal seat Jodhpur, in case of State of Rajasthan Vs. Sarita Chaudhary: DBSAW No.29/2016, vide order dated 21.1.2016 and further by the Division Bench of this Court at Jaipur in case of Rajasthan Public Service Commission, Ajmer Vs. Alka Agarwal: DBSAW No.988/2016 decided on 2.11.2017. Following the proposition of law and after survey of various judgments, recently the Division Bench of this Court at Jaipur Bench in Dr Shri KrishanJoshi (supra), has held in para 30 as under:
"30.From survey of various decisions of this Court, it is vividly clear that relying upon the Hon'ble Supreme Court decision in the case of State of Jammu and Kashmir and Others Versus Sat Pal (Supra), consistent view has been taken by the Co-ordinate Division Benches of this Court in the cases of State of Rajasthan and Another Versus Sarita Choudhary and Another (Supra), Rajasthan Public Service Commission, Ajmer Versus Alka Agarwal & Others (Supra) and State of Rajasthan & Others Versus Ghanshyam Khatik & Others (Supra), interpreting para materia provision relating to preparation and operation of the reserve list that the reserve list would commence to operate when the selected candidates in the main list though offered appointment do not join while the reserve list and vacancy remains unfilled."
(D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (12 of 19) [CW-5652/2022]
16. As far as the judgment of the Division Bench delivered in case of Dr. Rakesh Meena (supra) whereupon the counsel for respondent-State and respondent- RPSC have placed heavy reliance is concerned, in that case the issue of operation of reserve list prepared under Rule 20 of the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service Rules, 1973 came up for consideration in respect of seeking appointment by the petitioner on the post of Homeopathy Chikitsa Adhikari against the vacancy, resulted on account of non-joining on the post by the selected candidate Mr. Hanuman Meena. The Hon'ble Division Bench, after referring Rule 20 of the Rules of 1973 which is virtually similar and pari materia to the other service rules, observed that the crucial date of reckoning the lifespan of the reserve list cannot be the date when a candidate failed to join the post but the lifespan of reserve list/waiting list is to be reckoned strictly in consonance with the Rules and not based on the information about the non-joining by the selected candidates on the post. Such ratio decidendi expounded by the Division Bench in case of Dr. Rakesh Meena (supra) came up before the Division Bench in case of Dr. Shri Krishan Joshi (supra) and while confronting with the contrary view expressed by the Division Bench, it was observed by the Division Bench that the previous two judgments delivered in case of Sarita Chodhdary (supra) and Alka Agarwal (supra), were not brought to notice of the Division Bench, who was dealing with the case of Dr. Rakesh Meena (supra). The Division Bench in case of Sarita Choudhary (supra) and Alka Agarwal (supra), has followed the judgment Apex Court delivered in case of Satpal (supra), therefore, it has (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (13 of 19) [CW-5652/2022] been held that the judgment of the Division Bench rendered in Dr. Rakesh Meena (supra) could not be cited as binding precedent. The writ petition of the Division Bench delivered on 13.12.2020 is subsequent and based upon after following the dictum of the Apex Court in case of Satpal (supra) and following the previous two decisions of the Division Bench in case of Sarita Choudhary (supra) and Alka Agarwal (supra), therefore, this Court is bound to follow the subsequent judgment wherein the judgment rendered in case of Dr. Rakesh Meena (supra) has been held as not binding precedent. Thus, the resort taken by respondents to the judgment of Dr. Rakesh Meena (supra), is not permissible.
17. Coming to facts of the present case and considering in the light of judgment of the Division Bench in Dr. Shri KrishanJoshi (supra), this Court comes to a conclusion that the period of reserve list be reckoned w.e.f. 28.2.2022, when Mr. Sunil Machhera declined to join on the post of ASO despite giving offer of appointment vide order dated 23.11.2021. The circular of the State Government, cannot be treated to supersede the dictum of law as declared and pronounced by the Division Bench and by the Apex Court. Thus, in the previous case, it is hereby observed that as per Rule 21 of the Rules of 1978, the lifespan period of six months of reserve list commences in the present case w.e.f. 28.02.2022. The question No.1 stands answered accordingly. Question No.2:-
18. To deal with question No.2, it may be noted that this Court while answering question No.1 has come to the conclusion that the period of lifespan period of six months of the reserve list begins w.e.f. 28.02.2022, therefore, it has to be examined as to (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (14 of 19) [CW-5652/2022] whether the petitioner exercised her right of consideration for her candidature from the reserve list, within the currency period of six months during which the reserve list was alive. As per facts of the present case, it is not in dispute that petitioner submitted application before respondent Agriculture Department on
29.03.2022, pointing out the facts that candidate from main select list namely Mr. Sunil Machhera to whom appointment was offered against the post of general category, has declined to join on 28.02.2022, therefore, against the vacant post of Mr. Sunil Machhera, the candidature of petitioner be considered to fill up that vacant post and the reserve list may be made operative. The respondent-Department has not denied/disputed filing of such application by the petitioner on 29.03.2022. It is case of petitioner that when this application was not responded, petitioner has filed the present writ petition on 5.4.2022, invoking her right, being at serial No.1 in the reserve list, to consider her candidature for appointment against unfilled post of ASO in the present recruitment process, therefore, in the backdrop of such facts, it can be concluded that the petitioner has approached before this Court, before expiry of the lifespan period of wait list/reserve list and the legal right of petitioner was subsisting on the date of filing of the present writ petition.
19. The legal proposition about the subsisting legal right of petitioner being considered for appointment against the vacancy, which remained unfilled on account of non-joining of the selected candidate, has been extensively considered by the Division Bench in Dr. Shri Krishan Joshi (supra). The relevant portion of judgment, para 44 to 46 are being reproduced hereunder, to show (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (15 of 19) [CW-5652/2022] that after adverting to various judgment the Apex Court, it has been held that a mandamus can be issued by the Court when the petitioner therein establishes that he has a legal right to perform all legal duties by the period against whom the mandamus is sought and the said right was subsisting on the date of writ petition.
"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 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 (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (16 of 19) [CW-5652/2022] 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 ofthe 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. 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) 3JT (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. (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (17 of 19) [CW-5652/2022] 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)."
20. In view of aforesaid discussion, in the present case, this Court comes to the conclusion that the petitioner has approached before this Court by way of filing the present writ petition, during currency period of reserve list and at that time, the legal right of petitioner seeking consideration of her candidature for appointment by operating the reserve list, was subsisting. Hence, the question No.2 is answered in favour of petitioner.
21. In the present case, the petitioner has figured in the select list and her name stands at rank No.1 in the reserve list. It is not a case of State that the State had taken a conscious policy decision on relevant consideration not to operate the reserve list or not to fill up the vacancy from next candidate in merit. In such eventuality, it was incumbent for the State to operate the reserve list after 28.2.2022 by sending a requisition to the RPSC to forward the name of candidate falling next in merit, from the reserve list in order to fill up the vacancy, arose due to non-joining of Mr. Sunil Macchera from the main select list. Due to such inaction on the part of State, the legal right vested to the petitioner for consideration of her candidature on merits for appointment on the available vacant post of ASO, stands violated.
In that respect, counsel for petitioner has placed reliance on the judgment of Apex Court, in case Purushottam Vs. Chairman, MSEB [1999 (6) SCC 49]. In that case, their Lordship in the Supreme Court have authoritatively pronounce that if the writ (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (18 of 19) [CW-5652/2022] petitioners are otherwise found entitled to appoint and the action of appointing authority in not operating the waiting list is found to be illegal, the writ petitioners could not be denied equitable relief provided there, exists vacancies on the date of order passed by the Court. In the present case, availability of the vacant post, which has arisen due to not joining of Mr. Sunil Machhera, is not in dispute, therefore, petitioner has a legal right for consideration of her candidature for appointment on the vacant post of ASO on merits and consequently, the writ of mandamus is liable to be issued against respondents to consider the candidature of petitioner on merits by operating the reserve list.
22. The net outcome of the discussion made hereinabove, is that the present writ petition succeeds. Respondents are directed to pick up the name of petitioner from the reserve list and to consider her candidature for appointment on the post of ASO against the vacant post, available in the Department due to not joining of Mr. Sunil Machhera the candidate from the main list and shall offer appointment to petitioner (subject to document and character verification) on the post of Assistant Statistical Officer, pursuant to advertisement dated 6.7.2020. The needful exercise be completed within a period of two months.
23. It is hereby observed that after appointment, petitioner shall be entitled to get benefits of seniority, increment etc. notionally from the date when other similarly situated candidates pursuant to advertisement dated 6.7.2020 were granted appointment. However, petitioner shall be placed at bottom of seniority and treated junior most in the batch of appointees pursuant to advertisement dated 6.7.2020. Needless to observe that petitioner (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) [2023/RJJP/009106] (19 of 19) [CW-5652/2022] shall be entitled for actual monetary benefits from the date of her appointment. No costs.
24. Stay application and other pending application(s), if any, also stand disposed of.
(SUDESH BANSAL),J NITIN /16 (D.B. SAW/889/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:13:19 PM) Powered by TCPDF (www.tcpdf.org)