ORDER
Balia, J.
(1). Heard learned counsel for the parties.
(2). Petitioner challenges that in the selection held in pursuance of advertisement published in Rajasthan Patrika dated 24th June, 1998 for the post of Teacher Gr. III alongwith other posts, the petitioner being eligible for the post had applied for the post and she was selected and placed in the order of merit at Serial No. 1801 initially and later on it was altered to 1802 by order dated 17.3.1999 (Annex. 4).
(3). The complaint of the petitioner is that notwithstanding that she stood higher in order of merit, the persons below in order of merit have been given appointment but the petitioner has not been offered appointment in pursuance of very same selection. Referring to the case of Saroj, Urmila, Geeta and Geeta who were placed in the merit list at No. 1866, 1871, 1874, 1887 who are respondents No. 3 to 6 in this petition, it is contended that her fundamental rights under Article 14 & 16 have been violated. These facts are not in dispute. However, learned counsel for the respondent, State, has urged that the select list has expired on 31st March, 1999 and therefore no relief can now be granted to the petitioner.
(4). I am unable to accede to this contention.
(5). It is undoubtedly true that mere inclusion of the name in select list in particular order of merit does not give a right to claim appointment on that basis. But it is equally well settled that if appointments are offered in pursuance of such selection such appointments are to be offered strictly in order of merit except for the reasons to be disclosed to deviate from the order of merit. When undisputedly the petitioner was overlooked in order of merit, the persons below her have been given appointment, she is entitled to seek a mandamus to be treated at par with those who have been given appointment, in the absence of any compelling reasons to deviate from such merit order.
(6). In State of Haryana vs. Subhash Chander Marwaha (1), 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 Government shall not travel outside the list and that the Government shall not depart from the ranking given in the list.”
(7). 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”.
(8). In Shankarsan Dash vs. Union of India (2), reiterating 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.”
(9). A Division Bench of this Court in Divya Prakash Pandya vs. State of Rajasthan & Ors (3), 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”.
(10). These principles fully apply to the facts of the present case where the petitioner has been denied appointment.
(11). The contention that the merit list has expired on 31.4.99 also cannot hold good against the petitioner, who has approached this Court before the expiry of the
said list. She has filed the petition soon after she came to know about violation of her fundamental rights which were committed by the respondents by offering appointments to those who were below in merit to her at the same selection without offering the appointment to her on 23rd March, 1999 and the petition was admitted on 24th March, 1999. Thus, the petitioner has invoked the jurisdiction of this, Court for alleged breach of her fundamental rights before the expiry of the select list under which she claims appointment. Merely because the select list expired during the pendency of the petition, it would not take away the protections of remedy to seek her fundamental rights which have been breached in operating the select list. If that were so, the protections u/Arts, 14 & 16 providing equal opportunity in the matter of appointment would be rendered nugatory in the cases where the persons affected have invoked the jurisdiction of this Court without delay for enforcement of their fundamental and protections against the breach committed by the respondents. The remedy for such breaches cannot become ineffective by passage of time particularly when the matter has already become sub-judice when there was no impediment in granting relief.
(12). In Idan Singh vs. State of Rajasthan & Ors. (4), decided on 11.9.2001, like contention founded on expiry of select list was rejected by this Court, on finding that there has been violation of Art. 14 & 16 in defying appointment to candidates who were higher in merit while appointments were made to persons lower in merit. It was a case where the appointment was offered to a person lower in merit by mistake. The petition has been filed after expiry of select list. The very ground raised was that since select list has expired no relief can be granted to the petitioner. The Court said:
“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.”
(13). Distinction has to be drawn between a case where a person seeks mandamus to operate a select list so that he may get appointment which he would not otherwise get because of the non operation of list at all, or upto number where name of the selected candidate could find place and case where select list has been operated and order of merit in select list has been breached. In the former, no relief can be granted because no rights are breached, in the latter the petitioner’s fundamental rights are violated and he becomes entitled to relief as a matter of right. This distinction is clear from the another Bench decision of this Court in Rajendra Bhardwaj & Ors. vs. State of Rajasthan (5), decided on 26 Sept., 2000, in which the Court refused such relief when the case fell in former category; whereas in the case of latter class, the Division Bench in Divya Prakash Pandya’s case (supra) issued a mandamus.
(14). Present is a case of latter class where the petitioner is not seeking a mandamus for operating a select list which has not been operated at all or has been operated partly by giving appointments in order of merit to candidates above the pelitioner. Bu; it is a case where the State Government has operated the select list for giving appointments to persons ranked below the petitioner in the order of merit and no reason has been shown to deviate from such merit.
(15). In these circumstances, the petition succeeds and the respondents arc directed to offer appointment to the petitioner as Teacher Gr. III in pursuance of the selection aforesaid within a period of two months subject to other eligibility criterion, On her appointment, the petitioner shall not be entitled for the emoluments of the post for the past, however she will be entitled to claim seniority over the persons who were lower in merit but have been offered appointment prior to her.