CW 6397/06 //1// IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH ORDER S.B. Civil Writ Petition No.6397/2006 Rajesh Kumar Yadav Versus State of Rajasthan & Ors. Date of order ::: 20/02/2009 HON'BLE MR.JUSTICE AJAY RASTOGI Mr. Ram Pratap Saini, for petitioner. Mr. S.N. Kumawat, for respondents. The instant writ petition has been filed by the petitioner with the grievance that despite he being placed in merit against the vacancies which were reserved for OBC (male) in pursuance to the advertisement issued by the respondent- Rajasthan Public Service Commission dated 2.6.2004 for the post of Primary and Upper Primary School Teachers, he has not been given appointment. The petitioner being eligible, submitted his application for the post of Primary and Upper Primary School Teacher which is included in the schedule appended to the Rajasthan Panchayati Raj Rules, 1996, duly advertised by the respondent- Commission vide advertisement dated 2.6.2004. The petitioner appeared in the written examination and secured 130 marks and was declared successful. The date of birth of the petitioner CW 6397/06 //2// is 1.7.1979 and according to the marks which were secured in open written examination read with criteria adopted by the Commission to prepare the inter se merit of the applicants who secured similar marks, the petitioner could not finally succeed to get appointment on the post of Upper Primary Teacher in pursuance to the advertisement dated 2.6.2004 (Annexure-1). The petitioner tried to find out about the number of posts which remained vacant by submitting application under Right to Information Act in pursuance of which, he was informed vide letter dated 7.8.2006 (Annexure-6) about the available vacancies in OBC category, i.e. 4 in oBC Male category and 2 in OBC Female category. counsel for petitioner submits that he was higher in merit vis-a-vis the last person who was selected and considered for appointment and their inter se merit list has not been prepared by the respondent-Commission strictly in accordance with the criteria which has been laid down and averred in Para-5 of the reply. Counsel further submits that if both the applicants are holding similar qualification, the third and last criteria was required to be adopted to determine the inter se merit and the applicant who secured higher marks in Sr. Secondary & Graduation was to be considered for appointment which was not CW 6397/06 //3// noticed by the respondent while preparing their inter se merit. Counsel further submits that as per information made available to him under the Right to Information Act, vacancies were still left out and the petitioner can still be considered for appointment on the basis of his selection without disturbing the person who was last selected in the category of OBC (male). Respondent-Commission has filed reply to the writ petition and in Para-5, it has been averred that the Full Commission in its meeting laid down the norms finally approved to determine inter se merit of such applicants who secured equal marks. This court directed the Commission to file an affidavit pointing out the criteria which was adopted by them particularly regarding the case of the petitioner determining inter se merit vis-a-vis the last candidate in OBC (male) category duly selected and whose name was recommended to the State Government for appointment and so also to clarify about the vacancies, if any available in reference to the advertisement in question. In response thereto, an additional affidavit has been filed by the Commission in which it has been deposed that after completion of selection process in CW 6397/06 //4// reference to advertisement dt.2.6.2004 (Ann.1), all left out vacancies were taken note of in later advertisement dated 30.10.2006 and selection process in reference to the October, 2006 advertisement has also been completed and no vacancy is available which could be considered as a left out vacancy available in reference to the advertisement issued in June, 2004. It has also been deposed that since academic qualifications of the petitioner and of the last selected applicant in OBC category were common at all stages from Secondary to Post Graduation, but the last applicant secured 1st Division in B.Ed. whereas the petitioner is IInd Division B.Ed. and as per their criteria which the Commission adopted, prepared their inter se merit. It was further submitted that their inter se merit is strictly in consonance with the decision of the Full Commission and which has been finally affirmed by this court. I have considered the submissions made and with their assistance, examined material on record. Before examining controversy, it will be appropriate to refer the criteria adopted by the Commission. The same is quoted as under:- i)When two or more candidates having secured equal marks then preference is given to the candidate who is more/elder in age; CW 6397/06 //5// ii)When marks and age is equal then preference is given to the candidate whose academic qualification is higher; iii)When marks, age and higher academic qualification are same then preference is given to the candidate whose marks are more in Senior Secondary and Graduation course. It is relevant to mention here that it has also been informed that the criteria, as referred above, has been finally upheld by the Division Bench of this court. As per statement made available for perusal of this court, both the two persons, petitioner & last selected applicant in OBC category, secured 130 marks, their date of birth is 1.7.1979 and both were first division in Secondary, Senior Secondary & second division at the stage of graduation. Both are post-graduates & B.Ed. which is one of essential qualifications. But in B.Ed., the last selected applicant is Ist Divisioner whereas the petitioner indisputably is IInd Divisioner and on this premise, respondent- Commission determined their inter se merit. According to the criteria quoted (supra), adopted by respondent Commission, if applicants secured equal marks, their inter se merit is to be determined as per their date of birth and if the date of birth is also common, then applicant CW 6397/06 //6// having higher academic qualifications is to be considered and if that is also same then the third step of giving preference to the applicant having secured higher marks in Sr. Secondary & Graduation, is to be followed in descending order as per criteria noticed supra. In instant matter, when date of birth was common and both the applicants were holding post graduate qualification and their division was also common, respondent-commission took their percentage in B.Ed which is a pre-requisite condition of eligibility for the post in question and since other applicant secured first division in B.Ed., while petitioner secured second division, took note thereof while determining their inter se merit. This Court does not find any apparent error or illegality in their decision in placing applicant above petitioner while determining inter-se merit and that was certainly in consonance with criteria (supra) approved by this Court. At the same time, it is relevant to mention that applicant with whom petitioner has a grievance, is not a party before this Court and in his absence, no opinion even otherwise could have been expressed as it may cause prejudice to him. It is true that it is certainly a heart- CW 6397/06 //7// burning for a person like petitioner that after having been selected, persons who secured equal marks and almost equally placed at all stages, have been given appointment. This Court has full sympathy with the petitioner but when there are limited number of vacancies, some rational criteria has to be adopted and since there were no vacancies left out in regard to process of selection of year 2004 impugned herein, as averred by respondents that left out vacancies were taken note of in subsequent advertisement issued in October, 2006 – process of selection whereof has also been finalised by now. It also goes without saying that mere selection does not confer any right to seek appointment and if no person lower in merit has been recommended & appointed by Government, it cannot be said that right of petitioner U/Art. 14 & 16 of the Constitution in any manner has been infringed. Consequently, writ petition fails and is hereby is dismissed. No order as to costs. (Ajay Rastogi) J. Govind.S/p7/6397CW06Fb20Gnd.doc