PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 1 PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) Dated: 25th May, 2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr. Nikhil Dungawat for Dr.P.S.Bhati, for the petitioner. Dr. G.R.Calla, Government Counsel . 1. In this writ petition, the petitioner is seeking direction against the respondents to appoint him on the post of Physical Training Instructor Gr.III( in short “PTI” hereinafter) if the vacancy exists and the petitioner is qualified on merits . 2. The relevant facts in nutshell are that the respondent no. 2 issued an advertisement dated 28.7.03 whereby the applications were invited from eligible candidates for appointment to the posts of PTI. The appointments were to be made by preparing district wise panel of the selected candidates. As per the advertisement 9 posts of PTI for Boys were advertised in Jaisalmer District , out of which six posts were to be filled in from the candidates belonging to General Category and one post each was reserved for Scheduled Castes , Scheduled Tribes and Other Backward Class candidates. The petitioner having requisite qualification for appointment on the said post, applied for the same in pursuance of the advertisement in Jaisalmer District under the Boys quota in General Category. After interview, the PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 2 list of the candidates considered suitable for appointment was prepared by the respondents in order of merit wherein the petitioner was placed at seventh position. The select list included six persons from General Category and one from Other Backward Class. However, later a candidate was added in General Category who was ex service man and accordingly, the petitioner's name was moved to the eighth position in the select list. 3. The respondents issued appointment letter to four candidates out of the eight selected candidates vide order dated 15.9.2003. The appointment process was stayed by this court in Ashish Saxena's case (S.B.Civil Writ Petition No. 5207/03) therefore, further appointments could not be made. However later, when the interim order granted in Ashish Saxena's case was vacated by this court vide order dated 9.3.04, two more candidates selected in General Category were accorded appointment vide order dated 30.3.04 . Thus, against the six posts of General Category, six appointments were made , however, one candidate who was appointed vide order dated 30.3.04 did not join inasmuch as, he was selected in two districts i.e. Jaisalmer and Sri Ganganagar simultaneously and he opted to join the service at Sri Ganaganagar district instead of Jaisalmer. According to the petitioner, since he was next in the merit list therefore, the post which has remained unfilled on PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 3 account of non joining of one of the selected candidates, should have been offered to him. The petitioner made the representation to the respondents but no relief was extended. Hence, this petition. 4. The respondents in their reply to the writ petition have taken the stand that the appointment to the selected candidates viz. Mohan Lal and Kheta Ram were accorded during the operative period of select list and no person has been appointed after the expiry of the select list. It is submitted that the inclusion of the name in the select list does not create any right in favour of the selected candidates and it is the prerogative of the employer to accord appointment or not to accord appointment. It is submitted that since the select list expired on 31.3.04 therefore, the petitioner has no right to claim appointment merely on account of inclusion of his name in the select list. It is submitted that the writ petition seeking direction for appointment to the post has been filed by the petitioner after expiry of the select list which suffers from vice of delay and laches and therefore, deserves to be dismissed on this count alone. 5. It is submitted by the learned counsel for the petitioner that the operative period of the select list is one year and it should be counted from the date the select list was prepared. It is submitted that if the period of one year is counted from the PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 4 date of the preparation of the select list then, the date on which one selected candidate declined the appointment, the select list was operative and the petitioner next in the select list in General Category should have been offered the appointment. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matters of “Virender S.Hooda & Ors. vs. State of Haryana & Anr.”, (1999) 3 SCC, 696 and decisions of this court in the matter of “Kishan Lal vs. State of Rajasthan”, 2005(9) RDD, 3594 and “Brijendra Singh vs. State of Rajasthan”, 2005(3) RDD, 397. The learned counsel submitted that admittedly, the select list could not be operated earlier on account of stay granted by this court in Ashish Saxena's therefore, the petitioner cannot be denied appointment on the ground that the select list did not remain operative after 31.3.04. 6. On the other hand, the learned Government Counsel urged that the inclusion of the name of a candidate in a select list does not create any indefeasible right of appointment in his favour and therefore, if after the expiry of the select list, the petitioner has not been offered appointment against the existing vacancy then, he cannot raise any grievance in this regard. It is submitted by the learned counsel that admittedly, no person has been appointed lower in merit than the petitioner and as on the date select list expired , there was no vacancy existing therefore, PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 5 the petitioner could not be offered appointment on the post. That apart, it is submitted by the learned counsel that the petitioner who has approached this court after inordinate delay, after the date of expiry of the select list, cannot be granted any indulgence by this court in exercise of the extra ordinary jurisdiction under Article 226 of the Constitution of India. 7. I have considered the rival submissions and perused the record. 8. Admittedly, the recruitment on the post of PTI Gr.III is regulated by the rules called The Rajasthan Educational Subordinate Service Rules, 1971( in short “the Rules of 1971” hereinafter). As per Rule 9 of the Rules of 1971, the actual vacancies occurring during the financial year to be filled in by each method of recruitments i.e. direct recruitment and promotion have to be determined year wise on 1st of April of every financial year. 9. The procedure for direct recruitment under the Rules of 1971 has been laid down under Chapter IV of the Rule of 1971. As per Rule 16 of the Rules of 1971, the application for the post in the service shall be invited by the Commission or the Appointing Authority as the case may be by advertising the vacancies to be filled in, the official gazettee or in such manner, as may be deemed fit. After scrutiny of the application in terms of Rule 19 of the Rules of 1971 , the Commission or the PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 6 Committee , as the case may be, shall prepare a list of candidates whom they consider suitable for appointment and arrange in order of merit and shall forward the list to the Appointing Authority. The Commission or Committee is empowered to keep the names of suitable candidates to the extent of 50% of advertised vacancies on the reserved list. The period for which the select list shall remain operative has not been specified under the Rules of 1971. However, it was stipulated in the advertisement (Annexure 1) that the merit list shall remain operative upto 31.3.04, obviously, for the reason that as per Rule 9, the determination of the vacancies has to be made on 1st of April every year and therefore, the recruitment process for the relevant financial year should be completed before the commencement of the next financial year . 10. It is to be noticed that the advertisement inviting applications to fill up the vacancies of the posts of PTI for the year 2003-04 were advertised as late as on 28.7.03 and in pursuance of the select list prepared, the appointments were accorded in the Jaisalmer district to four selected candidates in General Category vide order dated 8th September,03. Thereafter, the appointment could not be accorded to the remaining selected candidates inasmuch as, a stay order granted by this court in Ashish Saxena's case was operative. Even according to the respondents the further appointments could only be made vide PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 7 order dated 30.3.04 in terms of the directions issued by this court after vacation of the interim order by this court vide order dated 9.3.04. In pursuance of the appointment order dated 30.3.04, the posting were given to the selected candidates Mohan Lal Saran and Kheta Ram Choudhary vide order dated 6.4.04 , however, one of the candidate did not join inasmuch as, he had already been appointed on the post in Sri Ganganagar district. 11. Admittedly,the petitioner is claiming appointment against the post which has remained unfilled on account of non joining of one of the selected candidates and obviously he could not have staked his claim for appointment on the post before the expiry of the select list on 31.3.04, against the vacancy which had come into existence only after 6.4.04 on account of non joining of one of the selected candidates appointed. Therefore, it is not considered appropriate to dismiss the petition solely on the ground of delay in filing the writ petition. 12. It is true that the inclusion of the name in the select list does not create any indefeasible right in favour of the candidates whose names have been included in the select list. As a matter of fact, it has been specifically provided under the proviso to Rule 22 of the Rules of 1971, that the inclusion of the candidate's name in the list confers no right to appointment unless the appointing authority is satisfied after such inquiry as PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 8 may be considered necessary that such candidate is suitable in all respect for appointment to the post concerned. In Brijendra Singh's case (supra) , a Bench of this court while interpreting the Rule 22 of the Rules of 1971 held as under:- “32. Obviously, the right to be appointed after the name having been included in the select list is confined whether any inquiry has been held by the Appointing Authority regarding the candidate's suitability or not. 33. The word 'unless' used in proviso is of significant importance. In fact, in the absence of any rational and reasonable justification, ordinarily, when a person's name finds place in the select list against the number of vacancies , he has a legitimate expectation of getting appointment. He may not be offered appointment because the State has decided to keep certain vacancies unfilled or to keep them in abeyance in terms of its power under Rule 4(2)(b). But where it is not a case that the Government has desired to leave unfilled or hold in abeyance or abolish or allow to lapse any post, permanent or temporary, or where enough number of candidates have not been found suitable to be included in select list in any category of posts, ordinarily the appointment much reach number of facts advertised.”(emphasis added) 13. In this view of the matter, in considered opinion of this court, the respondents cannot deny the claim of the petitioner for consideration of his case for appointment on the post remained unfilled on account of non joining of one of the selected candidates on the ground that mere inclusion in the name in the select list does not create any indefeasible right in favour of the selected candidate for appointment to the post. 14. Coming to the contention of the respondents that the term PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 9 of the select list having been expired, the petitioner cannot claim appointment against the post remained unfilled on account of non joining of one of the candidates , it is to be noticed that the procedure prescribed for recruitment against the vacancies determined in terms of Rule 9 of the Rules of 1971 is not completed within any specific time frame. The vacancies determined were advertised as late as on 28.7.03 and the select list was declared in the month of September,03. Against the six vacancies of General Category advertised in Jaisalmer district, only four persons were accorded appointment vide order dated 8th September, 03. Admittedly, thereafter, the further appointments could not be made on account of stay order granted by this court in Ashish Saxena's case(supra). It is only after vacation of the interim order by this court in the said case vide order dated 9.3.04 that appointment to two persons belonging to the General Category were accorded vide order dated 30.3.04. Obviously, if the select list could have been operated prior to 30.3.04 the petitioner would have been entitled for offer of appointment according to his placement in the select list against the vacancy remained unfilled on account of non joining of one of the selected candidates. It is true that ordinarily, no appointment can be accorded after the expiry of the select list but then, the expiry date of the select list cannot be treated to be so sacrosanct that it can be deviated from PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 10 under any circumstances. Apparently, the petitioner could not be offered appointment against the vacancy remained unfilled on account of fortuitous circumstances noticed above therefore, it will be unjust to deny the petitioner his legitimate right to be considered for appointment on the post altogether on the ground that the select list has expired and the petitioner has not approached the court with utmost expedition. 15. The decisions of this court and the Hon'ble Supreme Court relied upon by the learned counsel for the petitioner support the conclusion arrived at by this court as aforesaid. 16. In Kishan Lal's case (supra) , the appointment was claimed by the selected candidates against the post which remained unfilled on account of one of the candidate appointed being found not possessing the requisite qualification. The court opined that the denial of the appointment to the petitioner therein who was duly selected on the count that the select list stood expired is not fair and accordingly, the directions were issued to accord appointment to the petitioner therein treating the select list to be in currency. 17. In Virendra S. Hooda's case (supra), it was held that on requisition the appointing authority was under an obligation to offer appointment by preparing the reserved list as per the rank obtained by the candidates if they come within the range of selection against the vacancies remained unfilled because of non PRATHVI SINGH JODHA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4757/05) 11 joining of certain selected candidates. 18. In view of the discussion above, the prayer made by the petitioner for consideration of his case for appointment on the post if the vacancy exists and he is qualified on merits deserves to be allowed. 19. In the result, the writ petition succeeds, it is hereby allowed. The respondents are directed to consider the case of the petitioner for appointment strictly as per the select list, if the vacancy exists and he is otherwise found suitable for appointment on the post. If found suitable for appointment against the existing vacancy, the petitioner shall be offered appointment with effect from the date of filing of the writ petition and further, if appointed, the petitioner shall not be entitled for any emoluments until his actual joining in pursuance of the appointment order. No order as to costs. (SANGEET LODHA),J. Aditya/-