S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ORDER Kirori Lal vs. The State of Rajasthan & anr. S.B. Civil Writ Petition No.880/96 under Article 226 of the Constitution of India. Date of Order:- July 27th ,2009. PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA. Mr.P.S. Bhati & Mr. Nikul Dungawat for the petitioner. Dr. GR Kalla & Mr. Hemant Choudhary for the respondents. BY THE COURT: REPORTABLE Heard learned counsel for the parties. An advertisement was issued on 1.4.1994 for giving appointment for various post of Lab Assistants Grade-III. The petitioner applied in pursuance of the said advertisement, copy of which has been placed on record as S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 2 Annexture-1. As per the said advertisement, total posts were nine, out of which four were reserved for boys candidates and five for girls candidates. For reservation, five posts were kept for General Category, two posts for Schedule Caste category and two for Schedule Tribe category. The petitioner is candidate in the category of Schedule Tribe. The petitioner succeeded in initial selection and his name was found place in the merit list and he was called for interview on 10.6.1994. The petitioner's contention is that in the category of selected candidates, in the select list of Schedule Tribe, his number in the list was at S.No.1. However, the two appointment orders were issued, one on 24.3.1995 and second on 30.3.1995, whereby only six candidates have been given appointments and out of six, four seats have been allotted to candidates of General Category and one was given to OBC category and another to Schedule Caste category. According to the petitioner, the respondents were bound to fill in all the total nine vacancies and were bound to give one post to the candidate of Schedule Tribe in view of the advertisement S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 3 and since the petitioner is candidate at S.No.1 in the select list in the category of member of Schedule Tribe, therefore, he is entitled to the appointment. The respondents' contention is that inadvertently 9 posts were advertised whereas in fact there were only 6 vacancies in existence. It is submitted that 4 appointments were given in the year 1993-94 covering upto point 4 of 100 point roster. Therefore, in fact total vacancies available in the year 1994-95 were 6 only and by these 6 vacancies, 6 posts from point 5 to point 10 could have been filled in. Upto point 10 from point 5, as per the roster Annexture R/1, there was no vacancy available for the member of Schedule Trible. It is submitted that the number of vacancies given in the advertisement Annexure-1 dated 1.4.1994 as 9, is wrong. It is submitted that the respondents when found the mistake, then adhered to the rules and gave appointments to only 6 persons and that too in accordance with 100 point roster and since from point 5 to point 10, no vacancy of member of Schedule Trible was available, therefore, the petitioner was not given S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 4 appointment. The learned counsel for the petitioner submitted that the respondents if have published nine vacancies then there was legitimate expectation of the petitioner and because of the mistake committed by the respondents, the petitioner cannot be made to suffer. The learned counsel for the petitioner relied upon the judgments of the Hon'ble Supreme Court delivered in the cases of Union of India & ors. vs. Narendra Nath Roy Choudhary ( (2003) 12 SCC 49), A.P. Public Service Commission vs. P.Chandra Moulessware Reddy ( (2006) 8 SCC 330) and Purshottam v. Chairman, M.S.E.B. and another ((1999) 6 SCC 49), and the judgments of this Court delivered in the cases of Pukh Raj Singh v. the State of Rajasthan & ors. ( 2003(3) WLC (Raj.) 778), and Prithvi Singh Jodha vs. The State of Raj. & ors. (S.B.Civil Writ Petition No. 4757/2005) decided on 25.5.2009. The learned counsel for the respondents submitted that the respondents cannot be directed to give appointment beyond the actual vacancies and because of S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 5 the mistake committed in issuing advertisement, no right accrued to the petitioner, nor there is a vested right of any candidate for appointment if he applied in pursuance of the advertisement issued for giving appointment to the posts. I considered the rival submissions and it will be appropriate to look into the judgments relied upon by the learned counsel for the petitioner first. In the case of Union of India & ors. vs. Narendra Nath Roy Choudhary ( (2003) 12 SCC 49), Hon'ble the Supreme Court held that the authority should have been more careful and should not have issued such an advertisement which gave some illusory hope to the aspirants/applicants, which, in view of the policy of the Government, could not be materialised. Hon'ble the Supreme Court observed that such type of action gave occasion for litigation and the litigation consumes several years. It has been held that all this could have been avoided if proper care was taken and such an advertisement was not issued. In the judgment of the Hon'ble Supreme Court delivered in the case of A.P. Public Service Commission vs. S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 6 P.Chandra Moulessware Reddy ( (2006) 8 SCC 330). In that case, A.P. Public Service Commission advetised 19 posts for recruitment to the post of Dy. Superintendent of Police. In response to said advertisement, the candidates applied for the posts and appeared in the written examination and in interview. At this stage, the State Government directed the Commission to fill up only 10 posts, which the Commission complied with. However, the State Government gave direction to the Commission that only 10 vacancies instead of 19 vacancies be filled up. The Commission, therefore, selected only 10 candidates. Then the matter was taken to the A.P. Administrative Tribunal, where the State admitted that the State by mistake requested the Commission to consider 10 vacancies instead of 19 vacancies. The Tribunal opined that the mistake on the part of the State being admitted, the applicants were entitled to the reliefs prayed for. Meaning thereby, a decision of the State Government taken by mistake of reducing posts from 19 to 10, contrary to the advertisement, was not accepted and ultimately, Hon'ble the Supreme Court held that the Tribunal rightly S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 7 decided that the candidates cannot be denied the opportunity merely because of the mistake committed by the State. In the case of Purshottam v. Chairman, M.S.E.B. and another ((1999) 6 SCC 49), it has been held that duly selected candidate could not be denied appointment on the pretext that panel's term has expired. The same view was taken in the case of Pukh Raj Singh v. The State of Rajasthan & ors. ( 2003(3) WLC (Raj.) 778), wherein it has been held that expiry of select list is not ground to deny appointment to the petitioner when the authorities themselves are responsible for their own erroneous decision. The learned counsel for the petitioner also relied upon the judgment delivered in the case of Prithvi Singh Jodha vs. The State of Raj. & ors. (S.B.Civil Writ Petition No. 4757/2005) decided on 25.5.2009. The petitioner's entire case is founded upon the advertisement (Annexure-1) dated 1.4.2009, wherein total posts advertised for the Lab Assistant Grade III were 9. The respondents made it clear by filing reply that in fact total S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 8 available vacancies were 6 only in the year 1994-95 and 4 appointments were already given for the vacancies of the year 1993-94. The 100 point roster was strictly followed and from the roster point 5 to point 10, there is no post available for the member of Schedule Tribe. There is no reason to disbelieve the statement of the respondents in view of the fact that the respondents gave appointments to 6 persons covering the roster point 5 to point 10 only and there is no allegation that the respondents, with any malafide or oblique motive, did not fill up the remaining vacancies. It is also worthwhile to mention here that there is no material available on record on the basis of which it can be held that the 100 point roster was not adhered to by the respondents. At this juncture, it will be relevant to refer the judgment of the Hon'ble Apex Court delivered in the case of Union of India vs. Narendra Nath Roy Choudhary ( (2003) 12 SCC 49) relied upon by the learned counsel for the petitioner himself. In that case, there was ban on recruitment, yet the Government advertised the posts for filling up. In pursuance of the advertisement, selection test S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 9 was held in the year 1984 and the select list was also prepared. The process was completed some time in the year 1986 but the actual appointments were not given. Then the candidates submitted representations to the authorities but could not get the relief and, ultimately, in the year 1990, the authorities informed the candidates that the selection process could not be proceeded any further due to ban on recruitment. In that backdrop of facts, the candidates approached the Central Administrative Tribunal by filing OA wherein the Tribunal directed the Union of India to review the matter relating to imposition of ban on recruitment and in case it was found that the ban was not necessary to be continued, the respondent would be offered an appointment for the post for which he had applied and in case it is decided to continue the ban on recruitment, in that event, as soon as it is lifted, the respondent would be offered an appointment without considering the age bar. The Hon'ble Apex Court set aside the order of the Tribunal after holding that there is no justification for Tribunal to direct the Government to review the ban imposed on recruitment as S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 10 the matter was of administrative policy for the State as to when and to what extent there would be restriction or ban on recruitment in larger public interest and no interference in such matter is required to be made by the courts. Hon'ble the Apex Court held that there was no justification to say that whenever the ban is lifted, the respondent should be offered appointment excluding the ground of over age. It has also been held that such a direction without any restriction of period of giving appointments to the candidates when ban is lifted would lead to unreasonable consequences, as it may lead to issuance of appointment letter even though one may have attained the age of fifty years or so. Therefore, in the said judgment of Narendra Nath Roy Choudhary (supra), even when the advertisement was issued and process selection was undertaken and completed and the select list was prepared and name of the candidate of that case was in the select list, yet no relief was granted to the candidate by the Hon'ble Apex Court due to the ban imposed by the Government. That clearly suggests that mere advertisement of posts itself cannot S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 11 create the right in the candidate even if his name is in select list so as to seek appointment, if other facts dis- entitles the appointment. It is true that Hon'ble the Supreme Court clearly observed that the authority should have been more careful and should not have issued such an advertisement which gave some illusory hope to the aspirants/applicants, which, in view of the policy of the Government, could not be materialised. Meaning thereby, the advertisement if issued which gave some illusory hope to the aspirants/applicants, that does not entitled the aspirants/applicants to seek direction against the Government merely because the hope was created in the mind of the aspirants because of the mistake of the Government. The Government cannot be compelled to give appointment on the post for which there is no vacancy. The Hon'ble Supreme Court only cautioned the Government to be careful while issuing advertisement for the posts. The judgment of the Hon'ble Apex Court delivered in the case of A.P. Public Service Commission v. P.Chandra Mouleesware Reddy & ors ( (2006) 8 SCC 330) also S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 12 recognised the principle that the mistaken decision of the State cannot dis-entitle the candidate from getting appointment and it does not say that the mistaken decision of the State in advertising the number of posts can create right in favour of the aspirant for the post for getting the appointment. The mistaken decision cannot be given president over rules which provides for filling up of the vacancies which are in existence. In the case of A.P. Public Service Commission(supra), the post advertised were 19 and the written examinations were held and interviews were also taken place, then the State Government mistakenly directed the A.P. Public Service Commission to fill up only 10 posts and that mistaken decision was not allowed to become a ground for denying appointment and the correct decision giving benefit to the aspirant was upheld by the Hon'ble Supreme Court. In the present case, since the petitioner's name never came in the list of selected candidates and further the petitioner cannot claim any right on the basis of the mistake committed in advertising the post, therefore, he is not S.B.Civil Writ Petition NO. 880/96 Kirori Lal vs. The State of Raj. & anr. 13 entitled to any relief and no direction can be given to the respondents to give appointment to the petitioner against non-existing vacancy. Consequently, the writ petition of the petitioner is dismissed. ( PRAKASH TATIA),J. mlt.