[1] DBSAW 224/2004 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT D.B. SPECIAL APPEAL (WRIT) NO. 224/2004 IN S.B. CIVIL WRIT PETITION NO. 4145/1996 KISHAN LAL MEENA & ORS. Vs. STATE OF RAJ. & ANR. Date: 23/03/2009 HON'BLE MR. JUSTICE K.S. RATHORE HON'BLE MR. JUSTICE SATYA PRAKASH PATHAK Mr. S.P. Sharma, Advocate for the appellants. Mr. R.P. Singh, Addl. Advocate General for State. **** BY THE COURT (PER HON'BLE MR RATHORE,J.) The present special appeal is directed against the order impugned dated 30.01.2004 passed by the learned Single Judge in S.B. Civil Writ Petition No. 4145/1996, whereby the writ petition has been dismissed. 2. The respondent No.2 invited applications for filling up the vacancies of PTI Grade-III for the year 1995-96 and pursuant to the advertisement issued on 01.05.1995, the petitioners/appellants also applied for the said post. Since the petitioners/appellants were not given appointment on the post of PTI Grade-III, therefore, they had preferred a writ petition before this Court challenging the action of the respondent No.2 in not filling up the posts reserved for Scheduled Tribe candidates though the appellants stood in merit. [2] DBSAW 224/2004 3. Learned Single Judge having considered the rival submissions of the respective parties and after carefully going through the record of the case, dismissed the writ petition vide order impugned dated 30.01.2004 observing that no person lower in merit in comparison to the petitioners/appellants has been given appointment in the present selections. It has further been observed that the whole selection process is over and the appointments have also been made long back and subsequent selections have also been made and thus, no interference of this Court is called for, moreso, when the merit list in question itself had expired on 30.03.1996. 4. The petitioners/appellants have challenged the order passed by the learned Single Judge dated 30.01.2004 on the ground that only 5 candidates in the category of Schedule Tribes have been given appointment and the remaining posts had been filled by general candidates. Further, while passing the impugned order dated 30.01.2004, the learned Single Judge has not considered the letter written by the Director to fill up the vacant post. 5. It is also contended on behalf of the petitioners/appellants that as per the settled preposition of law no person can be harmed on account of pending of the case in the Court and the [3] DBSAW 224/2004 petitioners/appellants could not have been deprived of their right of consideration for appointment against the vacant posts which had not been filled by the respondent No.2 without assigning any reason. 6. In support of his submissions, the learned counsel for the petitioners/appellants has placed reliance on the judgments rendered by the Hon'ble Supreme Court in the case of Vijay Kumar Sharma And Others Vs. Chairman, School Service Commission And Others, reported in (2001) 4 SCC 289 as also in the case of Purushottam Vs. Chairman, M.S.E.B. And Another, reported in (1999) 6 SCC 49. 7. In the case of Purushottam Vs. Chairman, M.S.E.B. And Another (supra), Hon'ble the Supreme Court has held that “duly-selected candidates could not be denied appointment on the pretext that panel's term had expired and post had been filled up by someone else.” 8. Applying the ratio decided by the Hon'ble Supreme Court, here in the present special appeal, the District Education Officer has submitted an affidavit as per the directions issued by this Court and in the affidavit it was categorically contended that no person lower in merit has been given appointment on the post of PTI Grade-III. The merit of the petitioners/ appellants was also shown in the [4] DBSAW 224/2004 affidavit and the last person who has been given appointment is more meritorious in comparison to the petitioners/ appellants. Thus, the ratio decided by the Hon'ble Supreme Court in the case of Purushottam Vs. Chairman, M.S.E.B. And Another (supra) is not applicable to the facts and circumstances of the instant case. 9. Per contra, learned AAG Mr. Singh appearing on behalf of the respondents has submitted that the appellants have only the right of consideration and not the right of appointment and referred the judgment rendered by the Hon'ble Supreme Court in the case of Shankarsan Dash Vs. Union of India, reported in (1991) 3 SCC 47, wherein the Hon'ble Supreme Court has observed that “Candidate included in merit list has no indefeasible right to appointment even if a vacancy exists- But State while filling up the vacancies has to act bona fide and not arbitrarily.” 10. It is not the case of the appellants even in the writ petition or in the special appeal that the action of the respondents is arbitrary or malafide and it is also not the case that the appellants have not been considered. As per the settled preposition of law, the appellants have only the right of consideration and not the right of appointment and having considered the case of the [5] DBSAW 224/2004 appellants on the basis of their merit, appointments were given to those persons who were more meritorious in comparison to the appellants. 11. Similar view has been take by the Hon'ble Supreme Court in the case of Food Corpn. Of India And Others Vs. Bhanu Lodh and Others, reported in (2005)3 SCC 618 as also in the case of Jitendra Kumar And Others Vs. State of Haryana And Another, reported in (2008) 2 SCC 161. 12. We have considered rival submissions of the respective parties and carefully gone through the order impugned passed by the learned Single Judge dated 30.01.2004 as well as the relevant record and the affidavit filed by the District Education Officer as also carefully scanned the judgments referred by the respective parties. 13. Admittedly, the appellants have applied for appointment on the post of PTI Grade-III and they have also been considered as per their merit and it is not the case of the appellants that lesser meritorious persons have been given appointment and it is also not disputed that selections were made way back in the year 1996. Thus, the learned Single Judge has rightly observed that since the whole selection process is over and appointments have been made and further, subsequent selections have also [6] DBSAW 224/2004 taken place for the post of PTI Grade-III and the merit list in question has already expired, therefore, rightly dismissed the writ petition having no merit vide order impugned dated 30.01.2004. 14. Thus, we find no merit in the appeal and the order impugned dated 30.01.2004 passed by the learned Single Judge requires no interference. 15. In the result, the special appeal fails being devoid of merit and the same is hereby dismissed with no order as to costs. (SATYA PRAKASH PATHAK),J. (K.S. RATHORE),J. /KKC/