SBCWP2031/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2031/1997 {Ghanshyam Singh Rathore Vs. The State of Rajasthan and Another} Date of Order ::: 19.01.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Sunil Samdaria, Counsel for petitioner Shri S.D. Khaspuria, Additional Government Counsel for respondents #### //Reportable// By the Court:- Heard learned counsel for the parties. This writ petition has been filed by petitioner Ghanshyam Singh Rathore as far back as on 26.03.1997, inter-alia, with the prayer that a writ of mandamus be issued commanding the respondents to operate waiting list of General Category in view of the fact that the main merit-list stood already exhausted by virtue of order dated 13/14.01.1997; further the respondents be directed to appoint the petitioner on the post of Village Level Worker-cum-Ex-Officio- Secretary of Gram Panchayat on the basis of SBCWP2031/1997 // 2 // merit order possessed by him in the waiting list of General Category, and accordingly assign him seniority. The case of the petitioner is that the respondents, vide advertisement No.2/96, dated 26.07.1996, published in a daily newspaper 'Rajasthan Patrika', advertised 54 posts of Village Level Worker-cum-Ex-Officio- Secretary (Gram Sewaks) for appointment in various Panchayat Samities functioning under Zila Parishad, Ajmer. The minimum educational qualification prescribed was Senior Secondary Education from the Board of Secondary Education Rajasthan or an equivalent qualification; the age limit prescribed for the post in the said advertisement was between 18 to 33 years as on 01.01.1997. The petitioner also applied for appointment on the said post and appeared in the written- test on 28th and 29th of October, 1996. He was called and appeared in the Interview on 13th January, 1997 at 10.00 Hours in the office of the Zila Parishad, Ajmer, along-with his credentials. The petitioner was accordingly placed at Serial No.1 in the waiting list. Shri Sunil Samdaria, learned counsel SBCWP2031/1997 // 3 // for the petitioner, submits that while the main merit list contained 54 names of successful candidates, only 52 candidates appeared for Interview and two candidates did not offer themselves for appointment; out of those two, one was Harish Chandra Charan at Serial No.47 and another was Dinesh Kumar Sharma at Serial No.54. Both these candidates were to be appointed against the posts of General Category. Harish Chandra Charan, though belonged to Other Backward Class, but his named appeared as a candidate of General Category on account of his securing merit in the general category. The petitioner also belongs to the general category. The appointment orders were issued to the selected candidates. Copies of the main merit list and the waiting list are placed on the record as Exhibit Nos.3 and 4, respectively. The appointment order issued on 13/14.01.1997 in favour of as many as 52 candidates, is also on the record as Exhibit No.6. Shri Sunil Samdaria, learned counsel for the petitioner, has further argued that Rule 18 of the Rajasthan Panchayat Samitis and Zila Parishads Service Rules, 1959, SBCWP2031/1997 // 4 // provides that the Selection Commission, after scrutiny of the application and determining the suitability of the candidates on the basis of their qualification etc., shall prepare a District-wise merit list of the candidates considered suitable for appointment on the post in the District and forward the list to the District Establishment Committee of the District Concerned provided (i) that the number of candidates in the merit list prepared by the Commission shall not exceed one-and-a-half times the number of vacancies available and (ii) that the merit list of the candidates prepared shall remain valid for a period of 6 months from the date of its preparation. After expiry of such period, the list will be deemed to have lapsed. The learned counsel for the petitioner contended that the Selection Commission was required to prepare the merit list not exceeding one-and-a-half times the number of vacancies available or advertised and which means the candidates at- least one-and-a-half times the vacancies advertised would be placed in the merit list and that is why the name of the petitioner SBCWP2031/1997 // 5 // was included in the waiting list at Serial No.1. Two candidates having not offered themselves for appointment, the chance obviously should have fallen on the petitioner, who was at Serial No.1 in the waiting list as the vacancies, which remained unfilled, were of the general category and the petitioner also belonged to the said category. So far as the period of six months of expiry of the waiting-list is concerned, the learned counsel for the petitioner submitted that the appointment order was issued on 13/14.01.1997 and, therefore, from this date the period of validity of the waiting-list should have been counted, but the petitioner, well within the said period, filed the writ petition on 26.03.1997 and in the writ petition notices were issued to the respondents on 07.04.1997; both these dates come much before the expiry of the period of six months. The learned counsel for the petitioner, in support of his arguments, relied on the judgments of the Hon'ble Supreme Court in Surinder Singh & Others v. SBCWP2031/1997 // 6 // State of Punjab & Another – JT 1997 (7) SC 537, and Purushottam v. Chairman, M.S.E.B. - (1999) 6 SCC 49. The learned counsel also citied the judgment of the Hon'ble Supreme Court in State of U.P. v. Ram Swarup Saroj – JT 2000 (2) SC 632 wherein it was held that if a candidate approaches the Court of competent jurisdiction within the validity period of select list, the defence that list was valid for one year would not be available to the appointing authority. On the same line, the judgment of this Court delivered in Ram Babu Koli Vs. Zila Parishad Sawai Madhopur – 1999 (2) WLC (Raj.) 346 was relied on. Although, reply to the writ petition has not been filed but Shri S.D. Khaspuria, learned Additional Government Counsel, appeared for the respondents and opposed the writ petition. He submitted that a candidate included in the waiting list has got a very weak right which cannot be enforced by a writ of mandamus. Even if the candidate is included in the select list, he has no right to necessarily insist on his appointment because it lies within the domain of the appointing authority whether or not to make SBCWP2031/1997 // 7 // appointment despite advertising the vacancies. The learned counsel for the respondents, in this connection, relied on the judgment of the Hon'ble Supreme Court in Shankarsan Dash v. Union of India – (1991) 3 SCC 47, wherein it was held that it is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed, which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. The learned counsel for the respondents, in support of his arguments, also relied on the judgment of the Hon'ble Supreme Court in Subha B. Nair & Others Vs. State of Kerala & Others – 2008 (4) Supreme 239, which is to the same effect. The learned counsel for the respondents further argued about the conduct SBCWP2031/1997 // 8 // of the petitioner, who submitted the representation before the respondents on 22.03.1997 and, without waiting for some reasonable period, filed the writ petition immediately on 26.03.1997 i.e. only after four days, thus giving no time to the respondents to consider his grievance. I have given my anxious consideration to the rival submissions of the learned counsel for the parties and perused the material on the record. The argument that the merit/waiting list has lapsed on expiry of the period of six months, cannot be countenanced because in the present case the merit list was prepared and appointment order was issued in favour of 52 candidates on 13th/14th of January, 1997. The petitioner, by way of representation dated 22.03.1997, pointed out to the respondents about those two candidates who did not appear in the Interview and did not offer themselves for appointment; those two candidates belonged to general category and that he too also belonged to general category; his name appeared at Serial No.1 in the waiting list; he requested for his SBCWP2031/1997 // 9 // appointment. The petitioner thereafter filed the writ petition on 26.03.1997 wherein this court on 07.04.1997 issued notice to the respondents requiring them to show cause as to why the writ petition be not admitted and disposed of. A three Judges Bench of the Hon'ble Supreme Court in State of U.P. v. Ram Swarup Saroj (supra), negatived the plea of the State Government that one post of Munsiff Magistrate arising due to non-joining of one candidate, could not be offered to the writ petitioner because the select list was invalid on expiry of one year, because the writ petition was filed before the expiry of one year. In that case, additional observation was also made by the Hon'ble Supreme Court that such a plea was not setup before the High Court. In Purushottam's case (supra), also a similar plea raised was rejected by the Hon'ble Supreme Court. In that case, the appellant was selected against a post reserved for Scheduled Tribe candidate; the respondent Board doubted his status as ST candidate; the appellant approached the High Court; despite the High Court judgment, the appellant was not given SBCWP2031/1997 // 10 // appointment. In the second litigation before the High Court, the Board took a plea that appointment could not be given to him because someone else had already been appointed and there was no vacancy and that term of the panel had already expired. In that case, the question that arose for consideration was whether a duly-selected person for being appointed and illegally kept out of employment on account of untenable decision on the part of the employer, can be denied the said appointment on the ground that panel has expired in the meantime. The Hon'ble Supreme Court held that the right of the candidate to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. In Surinder Singh's case (supra), the Hon'ble Supreme Court discussed the law as to the right of candidates placed in the waiting list; in that case the earlier judgment of the Supreme Court in the case of Gujarat State Dy. Executive Engineers Association v. State of Gujarat & Others – JT 1994 (3) SC 559, was relied on, wherein discussion was as SBCWP2031/1997 // 11 // to the nature of waiting list and right of those candidates included therein, and it was held that the waiting list cannot be treated as a perennial source of recruitment from which candidates may be drawn as and when necessary. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates, who in order of merit are placed below the last selected candidate; how it should operate and what is its nature would be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But, once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided, then candidate from the waiting list has no right to claim appointment to any future vacancy, which may arise, unless the selection was held for it. He has no vested SBCWP2031/1997 // 12 // right except to this limited extent. This judgment was followed by a Coordinate Bench of this Court in Ram Babu Koli's case (supra), wherein it was held that if the writ petition is filed within the period the merit list survived, the petitioner cannot be non- suited just because the waiting list has expired during the pendency of the writ petition. Even in Shankarsan Dash's case (supra), whereupon reliance was placed by the learned counsel for the respondents, the Hon'ble Supreme Court held that unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies, but it does not mean that the State has the licence of acting in an arbitrary manner; the decision not to fill up the vacancies has to be taken bona-fide for appropriate reasons, and if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. The Hon'ble Supreme Court, in this respect, referred to certain previous judgments. SBCWP2031/1997 // 13 // In Sobha B. Nair's case (supra) the facts, that were placed before the Hon'ble Supreme Court, were that a requisition was made by the respondent-Bank to the Commission for appointment of 220 clerk-cum-cashier in the Bank and a ranked list was prepared on or about 18th September, 2001; its validity expired on or about 31st December, 2004; some persons did not join the posts and vacancies remained unfilled and, therefore, another requisition for filling up of the vacancies was made on or about 10th of May, 2005 and by that date the validity of the earlier ranked list had already expired. Such are not the facts of this case nor it is placed on the record by the respondents as to any bona-fide decision was taken by them not to fill up the vacancies. Although, it is true that it is open for an employer to take a decision not to fill up the advertised vacancies and it is within its domain but, as held by the Hon'ble Supreme Court in Surinder Singh's case (Supra) and also in Shankarsan Dash's case (Supra), there has to be a conscious decision on the part of the appointing authority not to fill up the SBCWP2031/1997 // 14 // advertised vacancies. The respondents, in the present case, having advertised 54 vacancies, called 54 candidates for Interview and, out of them, two did not offer themselves for appointment; there was no conscious decision of the respondents not to fill up the advertised vacancies; rather conduct of the respondents reflect that they decided to fill up all the advertised vacancies, when two vacancies remained unfilled on account of two candidates having not offered themselves for appointment and despite the claim made by the petitioner to give him appointment there against, action of the respondents not to give him appointment cannot be approved in law. The petitioner in the present case, when he came to know about appointment only of 52 candidates against 54 advertised vacancies and that he was placed at Serial No.1 in the waiting-list, is right in claiming the appointment against the unfilled vacancies. The factor that he approached this Court within 4 days after making representation by him to the respondents, cannot be taken against him; more-so, since the petitioner SBCWP2031/1997 // 15 // within two-and-a-half months of the appointments, approached this Court and his writ petition was entertained. Mere expiry of the waiting-list during pendency of the writ petition, the validity period whereof was six months, also cannot be taken as a factor against him if the writ petition was not decided within that time. Even then his rights will have to be determined on the basis of law and facts as available on the day on which the writ petition was filed. In the result, this writ petition is allowed. The respondents are directed to appoint the petitioner on the post of Village Level Worker–cum-Ex-Officio Secretary of Gram Panchayat, making it effective from the date of appointment of other candidates vide order dated 13/14.01.1997; he shall, however, be placed at the bottom of seniority and treated junior most in that batch, below all other appointed candidates pursuant to the selection, in question. The petitioner would, however, be entitled only to notional benefits for the intervening period. Compliance of the judgment be made within a period of three months from the date SBCWP2031/1997 // 16 // its copy is produced before the respondents. (Mohammad Rafiq) J. //Jaiman//