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.
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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.
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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.
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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.
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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
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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.
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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/-