High Court Rajasthan High Court - Jodhpur

Prathvi Singh Jodha vs State & Ors on 25 May, 2009

Rajasthan High Court – Jodhpur
Prathvi Singh Jodha vs State & Ors on 25 May, 2009


PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO.4757/05)
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PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO.4757/05)

Dated: 25th May, 2009.

HON’BLE MR.JUSTICE SANGEET LODHA

Mr. Nikhil Dungawat for Dr.P.S.Bhati, for the petitioner.
Dr. G.R.Calla, Government Counsel .

1. In this writ petition, the petitioner is seeking direction

against the respondents to appoint him on the post of Physical

Training Instructor Gr.III( in short “PTI” hereinafter) if the

vacancy exists and the petitioner is qualified on merits .

2. The relevant facts in nutshell are that the respondent no. 2

issued an advertisement dated 28.7.03 whereby the applications

were invited from eligible candidates for appointment to the

posts of PTI. The appointments were to be made by preparing

district wise panel of the selected candidates. As per the

advertisement 9 posts of PTI for Boys were advertised in

Jaisalmer District , out of which six posts were to be filled in from

the candidates belonging to General Category and one post each

was reserved for Scheduled Castes , Scheduled Tribes and Other

Backward Class candidates. The petitioner having requisite

qualification for appointment on the said post, applied for the

same in pursuance of the advertisement in Jaisalmer District

under the Boys quota in General Category. After interview, the
PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO.4757/05)
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list of the candidates considered suitable for appointment was

prepared by the respondents in order of merit wherein the

petitioner was placed at seventh position. The select list included

six persons from General Category and one from Other

Backward Class. However, later a candidate was added in

General Category who was ex service man and accordingly, the

petitioner’s name was moved to the eighth position in the select

list.

3. The respondents issued appointment letter to four

candidates out of the eight selected candidates vide order dated

15.9.2003. The appointment process was stayed by this court in

Ashish Saxena’s case (S.B.Civil Writ Petition No. 5207/03)

therefore, further appointments could not be made. However

later, when the interim order granted in Ashish Saxena’s case

was vacated by this court vide order dated 9.3.04, two more

candidates selected in General Category were accorded

appointment vide order dated 30.3.04 . Thus, against the six

posts of General Category, six appointments were made ,

however, one candidate who was appointed vide order dated

30.3.04 did not join inasmuch as, he was selected in two districts

i.e. Jaisalmer and Sri Ganganagar simultaneously and he opted

to join the service at Sri Ganaganagar district instead of

Jaisalmer. According to the petitioner, since he was next in the

merit list therefore, the post which has remained unfilled on
PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO.4757/05)
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account of non joining of one of the selected candidates, should

have been offered to him. The petitioner made the

representation to the respondents but no relief was extended.

Hence, this petition.

4. The respondents in their reply to the writ petition have

taken the stand that the appointment to the selected candidates

viz. Mohan Lal and Kheta Ram were accorded during the

operative period of select list and no person has been appointed

after the expiry of the select list. It is submitted that the

inclusion of the name in the select list does not create any right

in favour of the selected candidates and it is the prerogative of

the employer to accord appointment or not to accord

appointment. It is submitted that since the select list expired on

31.3.04 therefore, the petitioner has no right to claim

appointment merely on account of inclusion of his name in the

select list. It is submitted that the writ petition seeking direction

for appointment to the post has been filed by the petitioner after

expiry of the select list which suffers from vice of delay and

laches and therefore, deserves to be dismissed on this count

alone.

5. It is submitted by the learned counsel for the petitioner

that the operative period of the select list is one year and it

should be counted from the date the select list was prepared. It

is submitted that if the period of one year is counted from the
PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO.4757/05)
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date of the preparation of the select list then, the date on which

one selected candidate declined the appointment, the select list

was operative and the petitioner next in the select list in General

Category should have been offered the appointment. In this

regard, the learned counsel has relied upon a decision of the

Hon’ble Supreme Court in the matters of “Virender S.Hooda &

Ors. vs. State of Haryana & Anr.“, (1999) 3 SCC, 696 and

decisions of this court in the matter of “Kishan Lal vs. State of

Rajasthan“, 2005(9) RDD, 3594 and “Brijendra Singh vs. State

of Rajasthan”, 2005(3) RDD, 397. The learned counsel

submitted that admittedly, the select list could not be operated

earlier on account of stay granted by this court in Ashish

Saxena’s therefore, the petitioner cannot be denied appointment

on the ground that the select list did not remain operative after

31.3.04.

6. On the other hand, the learned Government Counsel urged

that the inclusion of the name of a candidate in a select list does

not create any indefeasible right of appointment in his favour

and therefore, if after the expiry of the select list, the petitioner

has not been offered appointment against the existing vacancy

then, he cannot raise any grievance in this regard. It is

submitted by the learned counsel that admittedly, no person has

been appointed lower in merit than the petitioner and as on the

date select list expired , there was no vacancy existing therefore,
PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO.4757/05)
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the petitioner could not be offered appointment on the post. That

apart, it is submitted by the learned counsel that the petitioner

who has approached this court after inordinate delay, after the

date of expiry of the select list, cannot be granted any

indulgence by this court in exercise of the extra ordinary

jurisdiction under Article 226 of the Constitution of India.

7. I have considered the rival submissions and perused the

record.

8. Admittedly, the recruitment on the post of PTI Gr.III is

regulated by the rules called The Rajasthan Educational

Subordinate Service Rules, 1971( in short “the Rules of 1971”

hereinafter). As per Rule 9 of the Rules of 1971, the actual

vacancies occurring during the financial year to be filled in by

each method of recruitments i.e. direct recruitment and

promotion have to be determined year wise on 1st of April of

every financial year.

9. The procedure for direct recruitment under the Rules of

1971 has been laid down under Chapter IV of the Rule of 1971.

As per Rule 16 of the Rules of 1971, the application for the post

in the service shall be invited by the Commission or the

Appointing Authority as the case may be by advertising the

vacancies to be filled in, the official gazettee or in such manner,

as may be deemed fit. After scrutiny of the application in terms

of Rule 19 of the Rules of 1971 , the Commission or the
PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO.4757/05)
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Committee , as the case may be, shall prepare a list of

candidates whom they consider suitable for appointment and

arrange in order of merit and shall forward the list to the

Appointing Authority. The Commission or Committee is

empowered to keep the names of suitable candidates to the

extent of 50% of advertised vacancies on the reserved list. The

period for which the select list shall remain operative has not

been specified under the Rules of 1971. However, it was

stipulated in the advertisement (Annexure 1) that the merit list

shall remain operative upto 31.3.04, obviously, for the reason

that as per Rule 9, the determination of the vacancies has to be

made on 1st of April every year and therefore, the recruitment

process for the relevant financial year should be completed

before the commencement of the next financial year .

10. It is to be noticed that the advertisement inviting

applications to fill up the vacancies of the posts of PTI for the

year 2003-04 were advertised as late as on 28.7.03 and in

pursuance of the select list prepared, the appointments were

accorded in the Jaisalmer district to four selected candidates in

General Category vide order dated 8th September,03. Thereafter,

the appointment could not be accorded to the remaining selected

candidates inasmuch as, a stay order granted by this court in

Ashish Saxena’s case was operative. Even according to the

respondents the further appointments could only be made vide
PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO.4757/05)
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order dated 30.3.04 in terms of the directions issued by this

court after vacation of the interim order by this court vide order

dated 9.3.04. In pursuance of the appointment order dated

30.3.04, the posting were given to the selected candidates

Mohan Lal Saran and Kheta Ram Choudhary vide order dated

6.4.04 , however, one of the candidate did not join inasmuch as,

he had already been appointed on the post in Sri Ganganagar

district.

11. Admittedly,the petitioner is claiming appointment against

the post which has remained unfilled on account of non joining of

one of the selected candidates and obviously he could not have

staked his claim for appointment on the post before the expiry of

the select list on 31.3.04, against the vacancy which had come

into existence only after 6.4.04 on account of non joining of one

of the selected candidates appointed. Therefore, it is not

considered appropriate to dismiss the petition solely on the

ground of delay in filing the writ petition.

12. It is true that the inclusion of the name in the select list

does not create any indefeasible right in favour of the candidates

whose names have been included in the select list. As a matter

of fact, it has been specifically provided under the proviso to

Rule 22 of the Rules of 1971, that the inclusion of the

candidate’s name in the list confers no right to appointment

unless the appointing authority is satisfied after such inquiry as
PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO.4757/05)
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may be considered necessary that such candidate is suitable in

all respect for appointment to the post concerned. In Brijendra

Singh’s case (supra) , a Bench of this court while interpreting the

Rule 22 of the Rules of 1971 held as under:-

“32. Obviously, the right to be appointed after the
name having been included in the select list is
confined whether any inquiry has been held by the
Appointing Authority regarding the candidate’s
suitability or not.

33. The word ‘unless’ used in proviso is of
significant importance. In fact, in the absence of any
rational and reasonable justification, ordinarily, when
a person’s 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 much reach number of facts
advertised.”(emphasis added)

13. In this view of the matter, in considered opinion of this

court, the respondents cannot deny the claim of the petitioner

for consideration of his case for appointment on the post

remained unfilled on account of non joining of one of the

selected candidates on the ground that mere inclusion in the

name in the select list does not create any indefeasible right in

favour of the selected candidate for appointment to the post.

14. Coming to the contention of the respondents that the term
PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

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of the select list having been expired, the petitioner cannot claim

appointment against the post remained unfilled on account of

non joining of one of the candidates , it is to be noticed that the

procedure prescribed for recruitment against the vacancies

determined in terms of Rule 9 of the Rules of 1971 is not

completed within any specific time frame. The vacancies

determined were advertised as late as on 28.7.03 and the select

list was declared in the month of September,03. Against the six

vacancies of General Category advertised in Jaisalmer district,

only four persons were accorded appointment vide order dated

8th September, 03. Admittedly, thereafter, the further

appointments could not be made on account of stay order

granted by this court in Ashish Saxena’s case(supra). It is only

after vacation of the interim order by this court in the said case

vide order dated 9.3.04 that appointment to two persons

belonging to the General Category were accorded vide order

dated 30.3.04. Obviously, if the select list could have been

operated prior to 30.3.04 the petitioner would have been

entitled for offer of appointment according to his placement in

the select list against the vacancy remained unfilled on account

of non joining of one of the selected candidates. It is true that

ordinarily, no appointment can be accorded after the expiry of

the select list but then, the expiry date of the select list cannot

be treated to be so sacrosanct that it can be deviated from
PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

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under any circumstances. Apparently, the petitioner could not be

offered appointment against the vacancy remained unfilled on

account of fortuitous circumstances noticed above therefore, it

will be unjust to deny the petitioner his legitimate right to be

considered for appointment on the post altogether on the

ground that the select list has expired and the petitioner has not

approached the court with utmost expedition.

15. The decisions of this court and the Hon’ble Supreme Court

relied upon by the learned counsel for the petitioner support the

conclusion arrived at by this court as aforesaid.

16. In Kishan Lal’s case (supra) , the appointment was claimed

by the selected candidates against the post which remained

unfilled on account of one of the candidate appointed being

found not possessing the requisite qualification. The court

opined that the denial of the appointment to the petitioner

therein who was duly selected on the count that the select list

stood expired is not fair and accordingly, the directions were

issued to accord appointment to the petitioner therein treating

the select list to be in currency.

17. In Virendra S. Hooda’s case (supra), it was held that on

requisition the appointing authority was under an obligation to

offer appointment by preparing the reserved list as per the rank

obtained by the candidates if they come within the range of

selection against the vacancies remained unfilled because of non
PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO.4757/05)
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joining of certain selected candidates.

18. In view of the discussion above, the prayer made by the

petitioner for consideration of his case for appointment on the

post if the vacancy exists and he is qualified on merits deserves

to be allowed.

19. In the result, the writ petition succeeds, it is hereby

allowed. The respondents are directed to consider the case of

the petitioner for appointment strictly as per the select list, if the

vacancy exists and he is otherwise found suitable for

appointment on the post. If found suitable for appointment

against the existing vacancy, the petitioner shall be offered

appointment with effect from the date of filing of the writ

petition and further, if appointed, the petitioner shall not be

entitled for any emoluments until his actual joining in pursuance

of the appointment order. No order as to costs.

(SANGEET LODHA),J.

Aditya/-