Rajasthan High Court - Jaipur
Idan Singh vs State Of Rajasthan And Ors. on 11 September, 2000
Equivalent citations: 2001(4)WLC449, 2001(1)WLN375
JUDGMENT Rajesh Balia, J.
1. Heard learned Counsel for the parties.
2. The petitioner is a candidate belonging to other Backward Class and has applied for recruitment to the post of Gram Sevak in response to advertisement No. 1/96 to appear in the Recruitment Competitive Examination, 1996. In the said recruitment exercise notwithstanding he having secured 212 out of 300 total marks and was holding number one in merit amongst other candidates belonging to O.B.C. his name was not included in the select list of candidates belonging to O.B.C.
3. Having come to know about this situation, he made a representation on which Additional Executive Officer, Zila Parishad, Bikaner respondent No. 2 informed the Director, Rural Development and Panchayati Raj Department, Rajasthan, Jaipur, vide his letter dt. 24.10.1997 (Ex.4) stating that this mistake has been committed inadvertently due to not registering the name of the petitioner amongst the candidates belonging to Other Backward Classes. It was also stated in the said letter the petitioner has secured first position amongst the candidates belonging to O.B.C. but by mistake his name has not been included in the select list of category to which he belongs. His appointment was a certainty because of his being number one in the order of merit amongst O.B.C. It was also stated in that letter that as on that date nine posts were still lying vacant in the category of Gram Sevak against which he could be appointed to remedy the apparent wrong. He made a recommendation for considering his case for appointment. However, still receiving no response the present petition was filed by the petitioner on 29.11.1997. Notice to show cause before admission was issued on 12.1.1998. In response to notice of admission reply to writ petition was filed on behalf of the respondents only on 28.3.1999, only after issuing a further advertisement dt. 3.3.1999 for filling 55 posts of Gram Sevak and second stay application was filed on 12.3.1999.
4. In reply the claim of the petitioner was admitted namely that he was number one in the order of merit amongst the candidates belonging to O.B.C. and his name had not been shown in the select list at its rightful place by mistake of respondents, at which he would have been appointed. Communication Ex.4 and facts stated therein were also not denied or disputed. However not giving of appointment was justified solely on the ground that since the select list made on 27.11.1996 in pursuance of Recruitment Competition Examinations 1996 was for duration of one year and said period expired on 27.11.1997, no relief can be granted to the petitioner now.
5. The petition was admitted on 14.3.2000. The Court taking notice of the contention raised and looking to the lapse of time made an enquiry from the respondents on 27.7.2000 whether any vacancy is still available in the cadre of Gram Sevak. An oral statement was made by learned Counsel for the respondents on 28th August, 2000 that there is no vacancy for the post of Gram Sevak on which the petitioner could be appointed. The matter was adjourned to 11th Sept. 2000.
6. Today Mr. Choudhary has placed on record written instructions from the Addl. Chief Executive Officer-cum-Zila Parishad, Bikaner dt. 24.8.2000 clearly stating that against 150 sanctioned posts only 137 Gram Sevaks have been appointed. Further information which has divulged in the letter is that the matter of appointing 55 Gram Sevak is pending consideration pursuant to Writ Petition No. 66/98. This apparently appears to be a clerical error. The Writ Petition No. 66/98 which is in hand any question about 55 vacancies of Gram Sevaks is not subject matter of this writ petition. However the genesis of disclosing that appointments of 55 posts for Gram Sevak are now under consideration is not far to seek. Alongwith second stay application the copy of advertisement dt. 3.3.1999 issued by respondents inviting applications for appointment on the estimated 55 vacancies of Gram Sevak has been placed on record. The fact of issuance of this has not been denied and from letter dt. 24th August, 2000 it is apparent that those posts have still not been filled.
7. Irresistible conclusion is that as per Annexure-4 dt. 24.10.1997, which was before the alleged expiry of life of select list and at the time of discovery of the mistake nine vacancies were available. As per the advertisement dt. 3.3.1999 55 posts of Gram Sevaks are still to be filled as per letter dt. 24th August, 2000 placed on record today.
8. In these circumstances the statement made by the learned Counsel on 28th August, 2000 presumably at the instructions of the Instructing Officer was not only misleading but was wholly incorrect and it deserves strong deprecation.
9. Coming to the merit of the present case I am of the opinion that sole contention raised for denying relief to the petitioner is not sustainable.
10. Firstly letter dt. 24.10.1997 (Annex. 4) reveals in no uncertain terms that mistake of not including the name of the petitioner in right category of O.B.C. candidates and not assigning his due place in the order of merit was committed by the respondents. This mistake was known to them before the expiry of life for which the select list has been prepared and as on that date the vacancies were available to rectify that mistake which ought to have been done in consonance with the men-date of Article 16 of the Constitution of India which guarantees the equality of opportunity in the matter of employment and also of Article 16 of the Constitution which guarantees equality of treatment before law to every citizen, and ensures protection against any arbitrary action of State in all spheres of its activities. Inaction on the part of State to remedy the breach of guarantees even where a case of violation of such right is made out undisputedly to its knowledge and it refuses to remedy the same while its attention is drawn to such violation and has opportunity to remedy such wrong itself is an act of gross arbitrariness against which it is citizen's right to seek protection which itself is a fundamental right. Denying remedial justice will be failing in its duty by the Courts who have been assigned the task to act is watchdogs and sentinels qui vive to protect fundamental rights.
11. Present is not a case of seeking a mandamus for operating a select list or reserved list which has not been operated at all, or has only been partly operated by giving appointments to persons in order of merit about the petitioners. It is clearly a case where the State Govt. has operated the select list for giving appointments on the post of Gram Sevaks in pursuance of selections made in 1996, and petitioner being No. 1 amongs O.B.C. candidates for whom a percentage of seats are reserved, he was bound to be appointed amongs first candidate, but for the mistake committed by the officials in not including the name of the petitioner in the category of OBC candidates. Thus admittedly person lower in merit in the select list has been given appointment which candidate higher in order of merit has been denied appointment, and that too when the respondents had all the opportunities to remedy such breach of petitioner's fundamental right.
12. In such circumstances law is well settled by a catena of decisions of Supreme Court that denial of appointment in such circumstances amount to violation of fundamental rights and petitioner is entitled to appropriate relief.
13. In State of Haryana v. Subhash Chander Marwaha the Supreme Court has laid down that the mere fact that the candidate's name appear in the list does not entitle him to be appointed and observed as under:
The only restraint put on the power of the Government to make appointments of Subordinate Judges under Rule 10 is that the State Govt. shall not travel outside the list and that the Government shall not depart from the ranking given in the list.
The Court further said:
Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government has departed from the rule in this respect.
14. In Shankarsan Dash v. Union of India that it cannot be said that if a number of vacancies are notified for appointment an adequate number of candidates are found fit, the successful candidate acquire an indefeasible right to be appointed which cannot be legitimately denied. The Court said:
If the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been constantly followed by this Court.
15. A Division Bench of this Court in Divya Prakash Pandya v. State of Rajasthan and Ors. in D.B. Civil Special Appeal No. 701/99 observed as under:
It is true that mere inclusion of the name in the select list does not confer any right to the appointment, it is equally well settled that if such select list is operated, the appointments will ordinarily be offered in order of merit in which their names appear in the select list no person outside such select list can be appointed during the life of such select list on the posts for which selections have been made. Any deviation from the select list in giving appointment would call for satisfactory explanation to the select list.
16. These principles fully apply to the facts of the present case where the petitioner has been denied appointment. Notwithstanding that he was undoubtedly No. l in the merit list of candidates belonging to Other Backward Classes for whom number of seats were reserved and appointments from amongst the candidates from O.B.C. have been offered to persons lower in rank than the petitioner and also that when mistake was discovered the vacancies were still existing.
17. As a result this petition is allowed. In the peculiar facts and circumstances of the present case where it is not in dispute that appointments have been given to persons lower in merit than the petitioner and as such there is no impediment in according appointment to the petitioner, the respondents are directed to consider the case of petitioner for offering appointment as No. 1 in merit list prepared in presence of selection made in 1996 in the category of OBC, and accord appointment to him, if otherwise there is no impediment in his appointment. The direction be carried out within one month.
18. There shall be no order as to costs