- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Ghanshyam vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO.4903/2005 DATE OF ORDER : May 7, 2008 P R E S E N T HON'BLE JUSTICE SHRI GOPAL KRISHAN VYAS Mr.Narpat Singh, for the petitioner. Mr.B.L.Tiwari, for the State. In this writ petition, petitioner is claiming direction to the respondent No.3 to appoint him as Constable with all consequential benefits. According to the facts narrated in the writ petition, in pursuance of advertisement issued by respondent no.2 on 18/1/2003 for direct recruitment on the post of Constable in various districts of State of Rajasthan, the petitioner applied for the post of Constable in Bikaner District for which 62 posts were advertised. Out of 62 posts advertised for Bikaner District, 51 vacancies were for general category and remaining 11 vacancies were reserved for other backward classes (OBC). The petitioner was possessing requisite qualification for the post of Constable, and belongs to OBC Category, therefore, he was called for appearing in the written test which was held on 20/4/2003 in - 2 - which he was declared successful. Consequently, he was called for physical test and interview vide call letter no.397. The petitioner participated in the physical test held on 12/6/2003 and thereafter, appeared before the Selection Committee to face the interview, in which also he was declared successful. After the aforesaid selection process, respondents issued appointment letters to the successful candidates but petitioner was not given appointment. Upon inquiry, petitioner came to know that his name is at serial no.1 in the waiting list. According to the petitioner, one Prakash Ram son of Heera Ram Vishnoi, who was provided appointed under the OBC category left the job upon his selection on the post of Assistant Sub-Inspector, therefore, one post of Constable has fallen vacant in the Department. On coming to know of this fact of leaving job by one Prakash Ram, petitioner made a representation to the respondents and made a request to provide him appointment but nothing was done. It is submitted by the petitioner that two candidates belonging to general category, who were also in waiting list, were given appointment on account of availability of two posts due to non-joining of two persons from the main list. In these circumstances, when petitioner was not provided appointment on account of leaving job by one Prakash Ram, he preferred the instant writ petition. - 3 - It is vehemently argued by the learned counsel for the petitioner that the purpose of waiting list is to provide appointment to a candidate from the waiting list in the event of availability of post during currency of the waiting list. Admittedly, the currency of waiting list is one year and one post has fallen vacant due to leaving job by one Prakash Ram on being selected on the post of Assistant sub-Inspector, but against that vacancy petitioner has not been provided appointment. According to petitioner, the inaction on the part of the respondents in not providing appointment to the petitioner against the said vacancy is illegal, and violative of Article 14 and 16 of the Constitution of India. It is also vehemently argued by learned counsel for the petitioner that when post under OBC Category was available and petitioner's name was at serial no.1 in the waiting list then respondents ought to have given appointment to the petitioner, more particularly when two persons from the waiting list of general category were provided appointment on account of non- joining of two candidates of main list. Therefore, it is urged that action of the respondents is illegal and discriminatory and has no foundation to stand before eye of law. In reply, it is contended by the learned counsel for the - 4 - respondents that after final selection, all the posts of OBC Category were filled in. Later on, one Prakash Ram, who was appointed as Constable in pursuance of same advertisement, left the job after seven months after his selection to the post of Assistant Sub-Inspector and in view of the circular issued by the Director General of Police, Rajasthan, Jaipur, petitioner cannot claim appointment as a matter of right on the ground that his name was at serial no.1 in the waiting list. According to the respondents, the post fallen vacant on account of leaving job by Prakash Ram cannot be treated to be a vacant post under the same advertisement because according to the Rules, the said post is required to be filled in the next recruitment year. The petitioner is only entitled for appointment in the event of non- joining of any selected candidate or on the basis of ineligibility assigned to any candidate of main list. But, post falling vacant on account of leaving the job by Prakash Ram, who joined as Constable pursuant to his selection in terms of advertisement in question cannot be utilized to be filled up from the waiting list. It is also submitted that now after lapse of one year, the waiting list does not survive and vacancy which has fallen vacant due to leaving the job by Prakash Ram is countable for the next recruitment process. Therefore, petitioner cannot claim appointment as a matter of right. - 5 - I have considered the rival submissions. Admittedly, in this case petitioner's name was at serial no.1 in the waiting list and one Prakash Ram left the job after his selection on the post of Assistant Sub-Inspector during the currency of wait list, therefore, petitioner was very much eligible to get appointment against the post vacated by Prakash Ram but due to inaction on the part of respondents so also due to non-consideration of case of petitioner for providing appointment against the said vacancy, which has fallen vacant on leaving job by Prakash Ram. The petitioner was deprived of right of consideration for appointment on the post of Constable, therefore, in my opinion, petitioner was wrongly denied appointment knowingly well that petitioner was at serial no.1 in the wait list and during the currency of wait list, one post of Constable in OBC Category has fallen vacant. In these circumstances, petitioner is entitled for mandamus against respondents for providing appointment after considering his case against the vacancy which was fallen vacant due to leaving job by candidate Prakash Ram because he was wrongly denied appointment during the currency of wait list. This proposition of law was laid down by Hon'ble Supreme Court in Virendra S.Hooda and others vs. State of Haryana & Anr. Reported in 1999 (3) SCC 696, so also in Brijendra Singh & Ors. vs. State & Ors. Reported in 2005 (3) RDD 397 (Raj.) (para 8). In Virendra S.Hooda's case (supra), the Hon'ble Apex Court held that: - 6 - “The view taken by the High Court that the administrative instructions cannot be enforced by the appellants and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle. When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same.” While considering the above cases this Bench took the view in Nathu Ram vs. State & Ors. Reported in 2005 (9) RDD 3631 (Raj.) that if any vacancy remains unfilled during currency of waiting list then waiting list is required to be operated and petitioner who was at serial no.1 in waiting list was entitled for appointment, therefore, denial of appointment to the petitioner is against the fundamental right of the petitioner. The relevant paras 9 and 10 of the said judgment are as follows: “9. It may be noted here that the case of Bihar State Electricity Board vs. Suresh Prasad & Ors.,2004(2) SCC 681, forcefully relied upon by the learned counsel for the State is distinguishable for particular reason. In that case, the question before the Court was whether the employer was found to - 7 - consider case of a candidate not having position in the merit list in the event of non-joining by a selected candidate. The circumstance was entirely different inasmuch as the agitating respondents, in that case fell beyond the cut-off number. However, we find strength in the instant case by the observation of their Lordships of the Supreme Court in the aforesaid case that the State is under no legal duty to fill up all or any of the vacancies unless the relevant recruitment rules indicate. (Emphasis supplied). Here in the case on hand, the petitioner was on the merit list approved by the respondents lagging just behind Navin Kumar who did not join service pursuant to appointment order and Rule 20 of the Rules cast duty upon the Appointing Authority to fill up the post. In the case before the Supreme Court in 2004 (2) SC 681 (supra), the repellent circumstances was the absence of provisions of rule to offer posts to candidates in the waiting list. In the case on hand before this Court, the petitioner was neither beyond the cut-off number nor was placed in the waiting list to have secondary claim. Moreover, in the present case the respondents claimed at filling up the back log vacancies in the reserved categories pursuant to Court's order. In these circumstances, the petitioner in the present writ petition has a legitimately founded case in his favour unlike the respondents no. 1 to 7 in the case of Bihar State Electricity Board (supra), before the Supreme Court. 10.As a result, of the foregoing discussion, the writ - 8 - petition is allowed. The respondents are directed to appoint the petitioner to the post of Senior Teacher (Biology) forthwith against the vacancy which remained unfilled due to non-joining of the service by the said Shri Navin Kumar Mahecha, in case, the petitioner stands just below said Shri Navin Kumar Mahecha in the merit list. The petitioner shall be entitled to notional benefit of service with effect from 21.11.2003.” In view of the above discussion, this writ petition is allowed. Respondents are directed to provide appointment to the petitioner on the post of Constable against the vacancy which occurred during currency of waiting list due to leaving job by Prakash Ram within a period of two months from the date of receipt of certified copy of this order. The petitioner shall also be entitled for benefit of seniority and fixation of salary however he will not be entitled for any back wages. (GOPAL KRISHAN VYAS),J . pankaj baweja