Indian Kanoon - Search engine for Indian Law

11. We have heard learned counsel for the parties and perused the records and given our anxious consideration to various factual and legal submissions advanced before us.

12. The facts, which are not in dispute and are admitted on record, are that the recruitment was made for the purposes of filling up 27 posts of Homeopathic Chikitsak which is admittedly governed by the Rules of 1973. It is also not in dispute that in the main list, respondents No.4 & 5 herein (Respondents No.5 & 6 in the writ petition) were included as Scheduled Caste and Scheduled Tribe candidates against reserved post in their respective category (11 of 44) [SAW-81/2020] at S.Nos. 25 & 26. It is also not in dispute between the parties that in the reserve list (waiting list), the Respondent No.1-writ petitioner-Dr. S.K Joshi was placed at S.No.1 and Respondent No.2-writ petitioner-Dr. Shri Mohan Sharma was placed at S.No.3. The candidate placed at S.No.2 did not approach the Court and has not laid any claim by filing any petition. It is also not in dispute that both the writ petitioners belong to general category.

26. In yet another decision in the case of Alka Agarwal Versus State of Rajasthan & Others (Supra), a learned Single Judge of this Court relied upon the judgment of the Hon'ble Supreme (19 of 44) [SAW-81/2020] Court in the case of State of Jammu and Kashmir and Others Versus Sat Pal and many other decisions.

On facts that was a case where out of 26 selected candidates, who were offered appointment, 8 candidates did not join the service and though the State had requisitioned to RPSC to forward names of selected candidates from the reserve/waiting list, the Commission declined to forward names from the reserve list on the ground that the period of validity of six months of the reserve list had already expired.

47. The aforesaid settled legal position, therefore, has to be applied in the facts of the present case to find out whether, even though the reserve list would commence to operate only after 22.04.1998, the writ petitioners approached the Court by filing petition before the expiry of the waiting list/reserve list. The records of the case, however, show that the writ petition was filed by the respondents/writ petitioners after expiry of the reserve list. We have already held herein, on facts, that the reserve list/waiting list attained its natural demise on 22.10.1998. The writ petitioners failed to approach this Court and filed petition while their right to seek appointment was subsisting. The writ petitions were filed after validity of the wait list expired. Therefore, even though on other contentions raised by the learned counsel for the respondents-writ petitioners with which we have agreed to, they having failed to file writ petition during the subsistence and validity of the wait list/reserve list, only on this count, the writ petitions were liable to be dismissed. As held by the Hon'ble Supreme Court, under the Constitution, a mandamus can be (44 of 44) [SAW-81/2020] issued by the Court when the petitioner therein establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition. As on facts, the writ petitioners did not have subsisting right on the date they had approached this Court, no mandamus could be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law.