1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Special Appeal (Writ) No.1402/2008 In S.B. Civil Writ Petition No.4368/1998 Abdul Aziz Khan vs. State & Ors. Date of order :: 11.11.2010. HON'BLE THE ACTING CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Mr. Rajkamal Gaur for appellant. Mr. R.P. Singh, AAG for respondents. *** (PER HON'BLE MOHAMMAD RAFIQ, J.) This appeal has been filed by the appellant against the judgement of the learned Single Judge dated 27.7.2007 by which his writ petition was dismissed. In the writ petition, appellant had prayed that the respondents be directed to appoint him on the post of P.T.I. Gr.III pursuant to the selection made in September, 1997 in place of respondent no.3. Contention of the learned counsel for the appellant is that while the merit of the respondent no.3 Mohammed Yusuf was 83.81% marks, the appellant was shown to have secured 82.45% marks in the merit list. This merit list was prepared after giving benefit of bonus marks on the basis of registration. While respondent no.3 was given 15 bonus marks on the basis of claim that he was a resident of rural area, the 2 petitioner was granted only 10 bonus marks considering him resident of Pidawa which is an urban area. Learned counsel referring to the voters list of Pidawa and the school certificate of respondent no.3 argued that he also, in fact, was resident of Pidawa, which is an urban area. He was wrongly granted benefit of 15 bonus marks on an incorrect assertion that he was a resident of rural area. The place from where he procured the certificate is, in fact, his village where his father was posted as a Teacher in a government school. He has procured the bogus certificate. It is therefore prayed that the impugned order be set aside and the writ petition be allowed with direction to the respondents to appoint the appellant in place of respondent no.3, more particularly when respondent has now expired. Shri R.P. Singh, learned Additional Advocate General for respondents opposed the appeal and argued that petitioner is claiming to have secured 82.45% on the strength of a letter dated 1.9.1997 sent to him deciding his representation in which it was erroneously mentioned that his merit percentage is 82.45%. This mistake took place because his father's name and father's name of Abdul Sahazad was similar i.e. Shri Abdul Gani. In fact, petitioner stand at S.No.5 in the merit list. It was Abdul Sahazad who secured 82.45% marks and he was at S.No.2 in the merit list. 3 Thereafter one Arvind Anand who secured 82.22% marks was at S.No.3. In fact, appellant's merit was at S.No.5 with 78.21% marks. Even if the appointment of respondent no.3 Mohammed Yusuf is cancelled accepting argument of appellant, the other three candidates, who were below him and above the appellant in the merit list, would have preferential claim. Although, as per the Rules, the criteria of calling the candidates for interview is in the ratio of 1:3 and the appellant being at S.No.5, in any case, was not entitled to be called for interview. It is therefore prayed that the appeal be dismissed and the impugned order be upheld. Having heard the learned counsel for the parties and perused the impugned order and considering the explanation offered by respondents in para 10(iii) of the reply, which has been reiterated before us by the learned counsel appearing for respondents, we find that the claim of appellant is absolutely without any basis. Even if it is assumed that respondent no.3 was not entitled to 15 bonus marks, but was only entitled to 10 bonus marks, then also the appointment could have been offered to the candidate immediately below him i.e. Abdul Shahazad and not to the appellant who was at S.No.5 in the merit list. Moreover, with the lapse of time when the post has become subsequently vacant due to the death of 4 respondent no.3, that itself cannot be a reason for offering such post to the next candidate in merit, as according to Rules, such post in that event shall have to be filled in fresh by a new selection. In our view, therefore, impugned judgment passed by the learned Single Judge dated 27.7.2007 does not suffer from any infirmity so as to warrant any interference. This appeal is therefore dismissed. (MOHAMMAD RAFIQ), J. (ARUN MISHRA),ACTING CJ. RS/-