JUDGMENT
Rajesh Balia, J.
1. This appeal is directed against the order of learned Single Judge dated 21.4.1999 by which the writ petition filed by the appellant was dismissed.
2. The facts of the case are that the appellant, who has to his credit the degree of B.A., which he qualified in the year 1994 and also holds the degree of Bachelor of Physical Education (B.P.Ed.) since 1996 and was eligible to hold the post of Physical Education Teacher Gr.III, encadered under the Rajasthan Educational Subordinate Service Rules, 1971 (hereinafter referred to as ‘the Rules of 1971’)
3. An advertisement of appointments to the posts of Teacher Gr.III in different disciplines including Teachers in Physical Education Gr.III to fill up the vacancies for 1997-1998 was issued by the District Education Officer (Boys), Banner. For belonged to General Category and rest to the Reserved Categories. The appellant-petitioner, in pursuance thereof, applied for the post.
4. In pursuance of the aforesaid advertisement, after the selection process was over, a select list was prepared in the order of merit on 20.6.1997 and was forwarded to the concerned authority in which name of appellant-petitioner was empanelled at serial No.16.
5. By Annexure-1 dated 27.3.1998, appointments were offered to in all 30 candidates out of which 15 candidates belonged to general category as against the estimated 11 posts advertised, the candidates at serial No.5 did not join in pursuance of the aforesaid order.
6. The appellant-petitioner made a request to the appointing authority that he being next below in the order of merit at serial No. 16 and vacancy having not been filed because of non- joining of candidate at serial No.5, his name may be considered for appointment against the available vacancy. The said request was declined inter alia on the ground that select list in which petitioner’s name was found at serial No. 16 had lapsed on 31.3.1998 and, therefore, no appointment could be given thereafter.
7. The appellant-petitioner also urged that the respondents having decided to fill up 15 vacancies from general category and respondent No.3, who is at serial No.5, being prima facie found guilty of misconduct by producing forged certificates in support of his candidature has otherwise rendered himself ineligible to be appointed and, therefore, if 15 persons from the select list were to be given appointment, petitioner’s case fell amongst the 15 candidates in order of merit after excluding the name of Kalu Singh – respondent No.3. It was contended that because of name of respondent No.5 was liable to be struck off from the merit list, he was otherwise entitled to be offered appointment amongst 15 candidates in general category in order of merit.
8. This fact about allegation of producing forged documents in support of eligibility criteria was admitted by the respondents in their return, but they stated that since, he has not joined, his name has not been removed from the list of panel. The only ground for not offering appointment to the appellant-petitioner was the expiry of select list on 31.3.1998. No other ground was stated for not offering appointment to the appellant-petitioner. It was also not the case of respondents that State Government had decided not to fill the post and keep it vacant in its discretion.
9. Learned Single Judge agreed with the contention of the respondents that since select list has expired on 31.3.1998, as per advertisement, no appointment could be given thereafter to anyone from amongst the candidates, who name finds place in the merit list prepared by the selection committee and for this reason the writ petition was dismissed.
10. These facts are not in dispute. Against dismissal of writ petition, this appeal has been preferred by the petitioner.
11. The learned Counsel for the petitioner strongly relies on the Bench decision ” of this Court in Brijendra Singh and Ors. v. State and Ors. 2005(3) RDD 397, which case arisen in the like circumstances where selection process took place in pursuance of very same advertisement under which the selection process for appointment of Teacher in Physical Education Gr.III in question took place. The only difference was that the Brijendra Singh’s case was related to appointment of Teachers Gr.III in general category.
12. Briefly stating the facts and circumstances under which Brijendra Singh’s arose were that the respondents had invited applications for recruitment to the post of Teacher Gr.III in Dungarpur District for academic session 1997-1998. The petitioners being eligible for the said recruitment, applied for the same. As a result of selection process, a select list was prepared by the respondent No.4 fn which, the names of petitioners were placed at Serial No.76, 79 and 81 respectively. The respondent No.4 had issued appointment orders in respect of selected candidates in different categories and the last appointment order was issued on 24.3.1998 and the appointment order in the general category was issued up to serial No.74 amongst the select candidates in order of merit. The appointment candidates were to join duties by 10.4.1998. The petitioners, having come to know that some of the selected candidates were working elsewhere and were not willing to accept the appointment under the Education Department, approached them and four persons, who were enlisted at serial Nos. G3, 66, 69 and 70 gave their intention not to join the post in pursuance of appointments offered to them. The candidates whose name was placed in order of merit at serial No.75, immediately next to one who was lastly offered appointment, was working at Panchayat Samiti Pipalkhunt, District Banswara, and she also showed her unwillingness to accept the appointment under the Education Department at Dungarpur. The copies of the refusal letters addressed to the District Education Officer (Primary Education) No.l, Dungarpur (Rajasthan) by the aforesaid five candidates have been placed on record. These refusal letters were submitted by the petitioners on 28.3.1998. The respondent No.4, who was the appointing authority, showed his willingness to give appointment to the petitioners in order of their merit in their respective categories and sought approval from the respondent No.3 vide his letter dated 30.3.1998. This letter which has been annexed to the writ petition shows that on account of non-joining, 8 posts were to remain vacant against which appointment could be given to 8 persons named in the letter in order of their merit in different categories. Out of 8 vacant posts, 6 posts belonged to the General Category and 2 posts to the Reserve Category. However, the respondent No.3 declined to accede to this request of the Education Officer, appointing authority, inter alia, on the ground that the appointment order, in pursuance of relaxation in ban on fresh appointment, should have been issued only on or before 24.3.1998 and since, this proposal has been sent after 24.3.1998, in terms of Government directions dated 24.2.1998 no appointment order could be issued.
13. In reply submitted to the writ petition in Brijendra Singh’s case, aforesaid facts were not denied. The principal plea taken by the respondents was that as per the Government order after 24.3.1998 appointment order cannot be issued after the stipulated date and, therefore, respondent No,3 has not given permission for the appointment as against vacant posts.
14. The writ petition was dismissed vide order dated 8.1.1999 on the very same ground that select list had expired on 31.3.1998 and petitioners have filed writ petition subsequent to the expiry of select list, therefore, no relief can be granted to them.
15. Considering the aforesaid case arising out of the very same advertisement, the Court noticed that copy of the order dated 24.2.1998 on which reliance has been placed by the respondents was not placed on record. After it was placed on record in pursuance of directions of Court it was noticed that it was clearly stated therein that new appointments in rural area be given until 31.5.1998. In view of the specific order of the Government dated 24.2.1998, the Court opined that very foundation of the respondents’ case and assumption by the learned Single Judge that the select list expired on 31.3.1998 did not exist. Indeed, in the advertisement it was stated that the select list prepared in pursuance thereof shall remain in force until 31.3.1998 only. However, during the currency of period during which the appointments were to be offered in pursuance of he said select list in question, the Government had imposed a ban on fresh recruitment on 27.1.1998. Thus, notwithstanding the select list which was operative, up to 31.3.1998 in pursuance of the advertisement, it could not be operative after 27.1.1998. It is in the aforesaid circumstances, the Government had issued above circular dated 24.2.1998 which was circulated by the Director, Secondary Education, Bikaner vide letter dated 5.3.1998 and in the said circular it was stated that Government directed that relaxation is given in making fresh recruitments in pursuance of ban on fresh recruitments by permitting fresh appointments of Teachers under Education Department in he rural areas only up to 31.5.1998.
16. Obviously, if the operating select list was to expire on 31.3.1998, no appointment could have been offered because of the operating ban against fresh recruitment, but as a result of this Government order dated .24.2.1998, the operative period of the select list was extended upto 31.5.1998. In these circumstances, the order of appointment could be offered until 31.5.1998 by giving fresh appointment in terms of that order.
17. The aforesaid position is not disputed by the learned Counsel for the respondents also and there is no difficulty in reaching the conclusion that this case also arise in the very same circumstances and the ground on which consideration of petitioner for appointment was refused did not exist. The petitioner’s case could have been considered in accordance with the Government order dated 24.2.1998 which was positive in character that available vacancies in rural area could be filled in by operating the select list In existence In the order of merit.
18. The provision was otherwise made in Rule 20 that In addition to the available vacancies as per the advertisement, a wait list up to the extent of 50% of the vacancies advertised be prepared so that appointment can be offered from the reserve list against the available vacancies, if the appointment authority so desires.
19. The desire of the paramount employer – State Government for offering appointment from amongst the select candidates in the order of merit until 31.5.1998 Is also manifest which by necessary implications mean that State Government has not decided to keep the rural vacancies unfilled if the selected candidates are available, who could be appointed against the available vacancies.
20. The Court after considering various decisions of Supreme Court which included R.S. Mittal v. Union of India 1955 Supp (2) SCC 230, Shanker Das Sen v. Union of India , Virendra S. Hooda and Ors. v. State of Haryana and Anr. , A.P. Agarwal v. Government of NCT of Delhi and Anr. JT 1999 SC 125 and considering the principle that merely finding place in the select list does not give a vested or indefeasible right to be appointed to the post and is subject to statutory provisions, considering the proviso to Rule 22, the Division Bench clarified that the word “Unless” used in the proviso is of significant importance, in fact, in the absence of any rational and reasonable justification, ordinarily, when a persons, name finds place in the select list against the number of vacancies, he has a legitimate expectation of getting appointment. He may not be offered appointment because the State has decided to keep certain vacancies unfilled or to keep them in abeyance in terms of its power under Rule 4(2)(b). But where it is not a case that the Government has desired to leave unfilled or hold in abeyance or abolish or allow to lapse any post, permanent or temporary, or where enough number of candidates have not been found suitable to be included in select list in any category of posts, ordinarily the appointment must reach number of vacancies advertised.
21. The entire scheme of the Rules, 1971 was noticed by the Court in the following terms:-
As a matter of fact, the first manifestation under the rule is that the State has decided to keep certain posts unfilled or to keep in abeyance, when the Advertisement for the number of posts was published and the Appointing Authority issued the advertisement to fill the number of posts. The second manifestation is that the vacancies in rural areas that were identified in the order dated 24.2.1998 relaxing the ban on fresh recruitment for being filled from amongst the candidates selected in the recruitment process in question and the same was directed to be filled up to 31.5.1998. There was no reason to stifle the period the select list prior to 31.5.1998 by refusing to offer appointment to the candidates as substitute candidates against non-joining vacancies which has been decided to be filled as per the Government order dated 24.2.1998 and which remained unfilled because of the non-availability of the candidates and Appointing Authority had decided to offer the same to next following candidates in order of merit, the matter was referred for to approval, DOP as per instructions contained in order dated 24.2.1998. Therefore, it cannot be said that the State Government has decided to keep the certain vacancies unfilled or keep them in abeyance.
Apparently, until 31.5.1998, the Appointing Authority was free to offer appointments in respect of categories as mentioned in the order from amongst the select list which was to expire on 31.3.1998 but which was continued to be operated upto 31.5.1998 by the Government order dated 24.2.1998.
Consequently, there was no rational reason which could prevent considering the petitioner’s case for offering them appointment against the vacancies remained unfilled on account of non-joining of certain candidates as substitutes for such candidates, who did not join in pursuance of appointment order issued while extended period of life of select list was drive. The foundation of the judgment of the learned single Judge that the select list had already expired on 31.3.1998 being non- existent, the judgment under appeal cannot be sustained.
22. With these conclusions, the appeal was allowed and the directions were issued to the respondents to consider the case of the petitioners and, if otherwise found suitable, to offer appointments in order of merit.
23. The facts of the present case, as noticed by us above, are not different in any aspect, and therefore, the ratio of the aforesaid case fully governs the facts of the present case.
24. However, learned Counsel for the respondents submits that undoubtedly the facts and circumstances noticed by this Court in Brijendra Singh’s case are identical and the advertisement in pursuance of which appointment is sought to be considered by the petitioner is the same which was in consideration before the Division Bench of this Court in Brijendra Singh’s case. However, he submits that in Brijendra Singh’s case, the Court has not noticed the decision of Supreme Court in Bihar State Electricity Board v. Suresh Prasad and Ors. in which it has been held that when a candidate selected for appointment does not join, the candidate next below the said candidate in the merit list does not have indefeasible right to the post and the employer is not bound to offer appointment against unfilled vacancies to such candidate. Therefore, the appellant is not entitled to any relief.
25. We have carefully considered this contention and perused the decision of the Supreme Court in Bihar State Electricity’s case (supra). The decision is clearly distinguishable and its ratio cannot be applied to the facts of the present case.
26. It was a case in which the Supreme Court noticed that pursuant to the advertisement issued for filing up the vacancies of operators, the High Court directed the appellant Board to fill up 50% of the vacancies from amongst the candidates who had applied pursuant to the 1986 advertisement and remaining vacancies from the candidates who had applied pursuant to the subsequent advertisement. The appellant Board notified the selection of 22 candidates pursuant to the 1986 advertisement and 25 candidates against the 1992 advertisement. However, out of the said 22 candidates only 4 joined and the rest 18 did not turn up. For that reason, 18 vacancies remained unfilled. After this has happened, respondent nos. 1 to 7 before the Supreme Court, who had applied pursuant to the 1986 advertisement and had qualified in the written test and oral interviews and were on the merit list at serial No.23 and downwards approached for the relief that since 18 candidates out of 22 had not joined, respondent Nos. 1 to 7 should be given appointment.
27. The Court noticed that under the selection process a penal of 22 candidates was prepared for appointment under the 1986 advertisement and respondent Nos. 1 to 7 fell beyond the cut-off number. There are no statutory recruitment rules which require the appellant Board to prepare a waiting list. In addition to the panel and there was no rule under which when any candidates failed to turn up, appellant was bound to offer the post to candidate in the waiting list, it is in the aforesaid circumstances, the Court said that in the absence of any statutory rule to the contrary, the employer was not bound to offer unfilled vacancies to the candidates next below the said candidate in the order of merit.
28. On all the three counts, the present case portrays different picture.
29. Firstly, the advertisement under which selection process took place was only for the estimated vacancies which were likely to increase or decrease and selection was not confined to the vacancies advertised in each category of posts.
30. Secondly, the Selection Board has not confined the selection to the number of vacancies advertised but has given the list of selected candidates, who could be appointed against the available vacancies by the State Government, therefore, unlike the position in Brijendra Singh’s case recommendations were not confined to fixed number of vacancies beyond which the selection of candidates were not recommended, therefore, the Selection Board having found the eligibility and suitability of candidates to be appointed, had left it to the f to fill up the number of vacancies from amongst the candidates suitable.
31. Thirdly, the rules under which recruitments were to be made namely; Rajasthan Education Subordinate Service Rules, 1971 have three salient provisions which affect the final appointments to be made as a result of selection process. Sub-rule (2) of Rule 4 envisages amongst other things that the State Government may leave unfilled or held in abeyance or abolish or allow to lapse any post, permanent or temporary, from time to time without thereby entitling any person to any compensation.
32. As we have noticed above, in pursuance of the advertisement under which selections were made, the State Government has not decided under Sub-rule (2) of Rule 4 to leave the available vacancies unfilled or be kept in abeyance. On the contrary, State Government while issuing directions vide order dated 24.2.1998, which has been noticed by this Court in Brijendra Singh’s case, clearly gives out its intention to fill up the vacancies in the rural areas until 31.5.1998. Therefore, it was a case of positive directions by the State Government to operate the selection list until 31,5.1998 which belies the reason disclosed by the respondents for not offering appointment to the petitioner against the available vacancies.
33. Another feature of the rules which needs consideration and which has been examined in Brijendra Singh’s case (supra), leaves it to the Appointing Authority to select the candidates according to he order of merit in which their names appear in the list prepared under rule 20. If further envisages that inclusion of candidate’s name in the list confers no right to appointment unless the Appointing Authority is satisfied after such enquiry s may be considered necessary that such candidate is suitable in all other respect for appointment to the post concern. This envisages that candidate, who has been included in the select list can be denied appointment only if the Appointing authority is not satisfied after such enquiry as may be considered necessary about the suitability in all other respects for appointments to the post concern.
34. Lastly, Rule 20 of the 1971, unlike as was the case in Bihar State Electricity Board, specifically envisages that Commission or the Committee shall prepare a list of the suitable candidates to the extent of 50% of the advertised vacancies by way of reserve list. Thus, preparation of wait list and offering of appointment in case of availability of vacancies is more than the vacancies advertised is specifically envisaged under the rules. Absence of this provision was found to be one of the grounds by the Supreme Court which did not obligate the employer to consider the case of the candidates next below in the order of merit than those who had been offered appointments in the first instance.
35. The scheme of the rules coupled with the specific directions of the State Government to fill up the available vacancies in the rural area from the list of suitable candidates prepared by the Selection Committee makes vita! difference in the canvass of the present case than that what was before the Supreme Court in Bihar State Electricity Board’s case.
36. Thus, considering the fact that State Government has not decided to keep the vacancies in abeyance or unfilled and by positive direction to fill up the vacancies in rural areas by giving new appointments from amongst the candidates recommended by the Selection Committee until 31.5.1998 and existence of a provision of preparation of wait list enabling the Appointing Authority to go beyond the candidates, who have been offered appointment in the order of merit, to offer appointment against available vacancies, fortifies that in the present fact situation, the decision in Bihar State Electricity Board’s case does not affect the ratio laid down in Brijendra Singh’s case (supra).
37. It is not disputed that the case is otherwise fully covered by the ratio laid down in Brijendra Singh’s case. The same result should follow in this case also.
38. Accordingly, the appeal is allowed. Judgment under appeal is set aside,. The writ petition is also allowed and respondents are directed to consider the case of the appellant for appointment against the unfilled vacancy on account of non- joining of a candidate in order of his merit and if otherwise found suitable, offer him appointment w.e.f. of filing of writ petition. However, it is made clear that no emoluments shall be paid to the appellant until the date of his actual joining, if ultimately he is offered appointment.
39. No costs.