1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R SB CIVIL WRIT PETITION NO.1649/2002 Dr.Rajendra Surekha V/s State of Rajasthan & ors. Date of Order : : August, 2006 PRESENT HON'BLE MR. JUSTICE P.S. ASOPA Mr.Ashok Gaur, for the petitioner. Mr.S.N. Kumawat, for the RPSC. Mr.R.C. Joshi, Mr.Reasham Bhargava, for the respondents. Mr.Harshvardhan Nandwana, Dy. GA, for the State. By the instant writ petition, the petitioner has initially challenged the selection of respondent No.3 & 4 (Dr.Sudhir Mehta & Dr.Rajiv Bagarhatta) against the vacancies of the year 1990-91 for the post of Lecturer in General Medicine and to direct the respondent Rajasthan Public Service Commission to accordingly amend the result of the selection of the year 1990-91. The petitioner has further sought consequential direction of appointment to the said post against the year 1990-1991 with seniority. 2. The facts in brief of the case are that the petitioner has filed the present writ petition initially challenging the eligibility of Dr.Sudhir 2 Mehta and Dr.Rajiv Bagarhatta (respondent No. 3 & 4 in the original writ petition) on the ground that these two private respondents were not eligible for appointment against the vacancies of the year 1990-91 to the post of Lecturer (General Medicine) on account of not completing the post graduation degree i.e. M.D. in General Medicine upto 1.4.1990. Subsequently, an application was filed on 8.5.2006 for deleting the names of Dr.Rajiv Bagarhatta – respondent No.4, Dr.S.K. Sharma – respondent No.5 and Dr.Shiv Charan Jelia – respondent No.6 and the same was allowed on 11st May, 2006 along with another application of adding Dr.Prakash Keswani as party. Presently, the grievance of the petitioner is confined to Dr.Sudhir Mehta – respondent No.3 of the writ petition. Dr.Sudhir Bhandari, who was originally respondent No.7 is now respondent No.4 and Dr.Prakash Keshwani is respondent No.5 3. It is stated in the present writ petition that the writ petition No.5424/1990 filed by the petitioner apprehending the termination while working as adhoc temporary Lecturer in General Medicine and for claiming regularisation was decided along with connected writ petition No. 5425/1990 of Dr.Sudhir Bhandari on 11.4.1994, was dismissed so far as claim of the petitioner to be treated as substantive appointee is concerned. However, termination of the petitioner was declared illegal. 3 The operative portion of the said judgment dated 11.4.1994 is as under:- “In the result the writ petitions are dismissed so far as claim of the petitioners to be treated as substantive appointees is concerned.. However, termination of the petitioner is declared illegal. The petitioner shall be allowed to continue in service till the availability of the candidates selected by the Rajasthan Public Service Commission. The Commission is directed to interview the petitioners and other ad hoc appointees who have completed three years or more of service without requiring them to appear in the screening test. While interviewing them along with other candidates the Commission shall take into consideration their performance and service record. The respondent Government is directed to positively make yearwise determination of vacancies under Rule 8A of the Rajasthan Medical Service (Collegiate Branch) Rules and send requisition for various posts under these rules on yearly basis. The Commission must also make yearwise selection as far as possible. Costs made easy.” 4. Against the said judgment in both the cases, the Rajasthan Public Service Commission (for Short `the RPSC’) filed special appeals, which were registered as DB civil special appeal Nos.492/94 & 533/94. The said special appeals were disposed of on 8th May, 1995 without there being any order of cost and the directions issued by learned Single 4 Judge were sustained with following modifications. The relevant portion of the said judgment dated 8th May, 1995 is as follows:- “After hearing the learned counsel for the parties and after careful perusal of the impugned order passed by the learned Single Judge, we are of the opinion that the direction issued by the learned Single Judge deserves to be sustained with following modification : The Rajasthan Public Service Commission is directed to interview the respondents-petitioners, namely, Dr. Rajendra Kumar Surekha and Dr.Sudhir Bhandari only, against the vacancies of the year 1990-91 on the basis of their performance and service record relating to their past service as Lecturers in the department of Medicine, and declare the results within a period of one month from the date of production of certified copy of the judgment of this Court. Their consideration should not be clubbed with open market candidates, for the reasons which have been enumerated by the learned Single Judge and have been affirmed by us. The appellant, Rajasthan Public Service Commission should start the process of selection for the vacancies of subsequent year i.e. 1991-92, 1992-93 and 1993-94 only after interviewing the respondents- petitioners against the vacancies of 1991. We further direct that in case the respondents petitioners are selected against the vacancies of 1991 on the basis of their past performance and service record, they would also be entitled to the benefit of seniority at least with effect from 1st April, 1990, 5 on which date two posts of Lecturers in Medicine were available.” 5. Against the said judgment, the RPSC filed a SLP and in the SLP, Supreme Court passed the order on 5.6.1995. The relevant portion of said order dated 5.6.1995 of Supreme Court is as follows:- “We have heard learned counsel for the appellant and respondents Nos.1 and 2. In so far as the direction given by the High Court dispensing with the requirement regarding screening test in respect of respondents Nos.1 and 2 and other adhoc appointees who have rendered service for three years or more, in the facts and circumstances of the present case, we do not consider it appropriate to interfere with the direction given by the High Court. We are, however, of the view that in the matter of selection for the two vacancies for the post of Lecturers in Medicine for the year 1990-1991, the appellant – Rajasthan Public Service Commission may consider the respondents Nos. 1 and 2 along with other applicants who are found eligible for appointment to the vacancies of the year 1990-1991 and who have submitted their applications. While considering, the Commission will take into account the performance and service record of the applicants who are in government service. Time for consideration is extended by four weeks. In the event of the respondents Nos. 1 and 2 being 6 selected, their seniority will have to be decided by the appropriate authority in accordance with the relevant provisions of the Rules. The appeals were disposed of accordingly.” 6. After the judgment of learned Single Judge dated 11.4.1994, an advertisement was issued by the RPSC on 23.8.1994 for 12 posts of Lecturer (General Medicine). In paragraph 6, it has been mentioned that required qualification and experience should be attained till the last date of application and last date of application mentioned was 7.10.1994. During the pendency of special appeal before the Division Bench, some exercise of yearwise vacancy was undertaken by the Government and it was admitted that there are 2 vacancies of the year 1990-91. It is stated in the writ petition that subsequently, said 12 number of posts was increased to 22 posts and there was consequential increase of 2 vacancies for the year 1991. Thus, in all the vacancies for the year 1990-91 became 4. 7. The further case of the petitioner is that as per Rule 8A, 9, 12 read with Rule 24 A of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (hereinafter to be referred as the Rules of 1962), the respondent Government and the RPSC are bound to determine the 7 vacancies yearwise for direct recruitment and further make selection yearwise by taking the date of eligibility as 1st of April of the respective year of vacancy. 8. During the pendency of the writ petition, petitioner filed an application for deletion of name of some of the respondents, which was allowed, as indicated above. The petitioner further confined his grievance to the ineligibility of Dr.Sudhir Mehta on account of completion of M.D. course after 1.4.1990, on 23.1.1991. It is further submitted that Dr.Rajiv Bagarhatta, who was placed in the reserve list was also selected for the post of Lecturer (Cardiology) and he had joined on the said post, therefore, name of the petitioner will automatically be placed in the reserve list, being next available candidate. In case of appointment of Dr.Sudhir Mehta, who was one of the selected and appointed candidate against four vacancies is quashed then the petitioner would be entitled to be placed in the merit list at No.3, above the reserve category candidate. 9. The respondent No.1 State as well as the RPSC and present contesting private respondents filed separate reply / counter affidavit to the writ petition. On merit of case, in their reply, they have denied that there was any binding observation / finding of the Apex Court for 8 taking the date of eligibility as 1.4.1990. It is further stated in reply that for direct recruitment, no date of eligibility is prescribed in the Rules of 1962. They have also stated that the eligibility as per Clause 6 of the advertisement dated 23.8.1994 was to be seen as on last date of application which has been mentioned as 7.10.1994 in border line box. They have also stated that none of the Rule referred by the petitioner make it obligatory to take 1st of April of the respective year of vacancy as the date of eligibility. Counsel for the RPSC has also submitted that on 7.8.1998, the Supreme Court in SLP of Rajasthan Public Service Commission V/s Deepak Verma and anr. held that direction contained in the order dated June 5, 1995 in Civil Appeals arising out of special leave petitions Nos.12740-41/95 filed by RPSC against the Division Bench judgment were given in the facts and circumstances of those cases only and the said directions cannot be treated as laying down the law regarding selection for appointment by the Rajasthan Public Service Commission which has to be made in accordance with the relevant rules, therefore, said order of Supreme Court dated 5th June, 1995 delivered in case of petitioner and Dr.Sudhir Bhandari cannot be treated as laying down the law regarding selection for appointment by the RPSC for any other subsequent year of same case or other cases. 9 The relevant part of order dated 7.8.1998 passed in the case of RPSC V/s Deepak Verma & anr. is as follows:- “Having regard to the fact that the respondents have already been considered and selected for appointment on the post of Assistant Professor in respective specialities and they have also been appointed, we do not consider it a fit case to go into the question that has been raised by the petitioner in these special leave petitions. We, however, clarified that the directions contained in order dated June 5, 1995 in Civil Appeals arising out of Special Leave Petitions Nos. 127740/41/95 were given in the facts and circumstances of those cases only and the said directions cannot be treated as laying down the law regarding selection for appointment by the Rajasthan Public Service Commission which has to be made in accordance with the relevant rules.” (emphasis supplied) 10. The private respondent No.3 Dr.Sudhir Mehta has also raised two preliminary objection in reply, one is regarding delay and another is of estoppel. 11. Dr.Prakash Keshwani – respondent No.5 has taken the objection in counter affidavit that in case there was any binding observation and finding then the petitioner ought to have filed contempt petition instead of approaching the Court again by filing the present writ petition and re- agitating the same, which is barred by the principle of res judicata. He 10 has also supported the aforesaid objections of delay and estoppel. 12. The submission of counsel for the petitioner Mr.Ashok Gaur is that the RPSC has acted illegally in allowing Dr.Sudhir Mehta, who was ineligible on account of completion of post graduation degree after the date of eligibility i.e. 1.4.1990 which has been observed by the Supreme Court and aforesaid Benches. Further submissions of Mr.Gaur is that as per Scheme of the Rules of 1962 more particularly Rule 2 (m), 8 A & 24 A, 1st of April of the year of vacancy is to be taken as the date of eligibility and thus, Dr. Sudhir Mehta was not eligible to be called for interview for the vacancies of the year 1990-91. Mr.Gaur also submitted that the said fact came to the knowledge of petitioner when the appeal against the judgment of Single Bench of the subsequent litigation was going on wherein direction for provisional appointment was issued and the same was given on provisional basis subject to decision of Division Bench wherein he was allowed to intervene and present controversy was raised by him, which was decided on 1.10.1999, but no adjudication was made on the aforesaid controversy, therefore, there was no question of any delay. Mr. Gaur further submits that issue of Dr.Sudhir Mehta's eligibility was not the subject matter of earlier writ petition and the cause of action arose to him after the 11 judgment of Supreme Court when Dr.Sudhir Mehta was called for interview and placed in the select list which was filed before the Division Bench and material was collected. Thus, the petition is not barred by principle of res judicata / estoppel. 13. In support of the aforesaid contention, Mr.Gaur has placed reliance of the earlier writ petition No.5434/1990 decided on 11.4.1994. Subsequently, the directions issued by learned Single Judge were modified by the Division Bench vide judgment dated 8th May, 1995. In an appeal filed by the RPSC, on 23.3.1995 , Supreme Court has further directed that not only the respondent No.1 & 2 of the special appeal, but other eligible candidates who were found eligible for appointment for the vacancies of the year 1990-91 will also be considered. 14. The ultimate submission of Mr.Gaur is that Supreme Court modified the direction of consideration of petitioner and Dr. Sudhri Bhandari by allowing the other eligible candidates, therefore, the date of eligibility was to be taken as 1.4.1990 as per modified direction of the Supreme Court. Mr.Gaur on the issue of eligibility has further placed reliance on two judgments of this Court reported in 1978 WLC (UC) 383 – MP Agarwal V/s State of Rajasthan & anr., 1979 WLC (UC) 421 – H.K. Hingarani V/s State of Rajasthan & Ors. as also 12 two more judgments of Supreme Court reported in 2001 (2) SCC 480 – Palritra Mohan Das & Ors. V/s State of Orrisa & Ors. & 2006 (2) SCC 315 – Mohd. Sartaj & anr. V/s State of U.P. & Ors.. 15. The submission of Shri S.N. Kumawat, counsel for the RPSC is that none of the aforesaid judgment and in the Rules, the date of eligibility has been mentioned as 1st of April of the respective year in which vacancy has arisen. As per their advertisement, the date of eligibility was 7.10.1994, but when the direction was given to interview the persons separately for the vacancies of the year 1990-91, they have to evolve a reasonable criteria for calling the persons for interview, so in absence of specific direction and specific provision in the Rules of 1962 and in order to comply with the direction, they have decided to call the persons, who have completed post graduation till 31.3.1991 and the said date is inner limit of the last date fixed by them. Therefore, they have taken 31.3.1991 as the date of eligibility for interview against the year 1990-91 which is neither contrary to the direction of the Hon’ble Supreme Court nor to the Rules of 1962. 16. It has also been submitted by counsel for the RPSC that this Court under Article 226 of the Constitution of India cannot sit as an appellate body on a decision of expert body and unless the cut off date is 13 arbitrary, same cannot be struck down. He has also submitted that the candidate cannot be allowed to challenge the procedure after remaining unsuccessful. On the aforesaid issue, counsel for the RPSC placed reliance on the judgments reported in 2000 (1) RLR 577 – Pratap Singh V/s High Court of Judicature for Rajasthan through its Registrar, 2000 (2) SCC 615 – Suneeta Agarwal V/s State of Haryana & Ors., 2003 WLC (UC) 116 para 14, 2003 (9) SCC 401 – Vijay Sayal & anr. V/s State of Punjab & Ors., 2003 (11) SCC 584 para 14 – Ashwani Kumar Singh V/s U.P. Public Service Commission & Ors., 2005 (2) WLC 358 – Emarata Ram Pooniya & Ors. V/s State of Rajasthan. Counsel for the RPSC has also placed reliance on an unreported judgment dated 8th February, 1995 of Supreme Court in Civil Appeal No.52/1993 - RPSC V/s Anand Kanwar & Ors. on the issue that settled preposition of law is that eligibility of a candidate is to be determined on the basis of terms and conditions of the advertisement in response to which the candidate applied. 17. The counsel for State has also raised same submissions as raised by the counsel for the RPSC. 18. The counsel for the private respondents Mr.R.C. Joshi and 14 Mr.Resham Bhargava while supporting the submissions of the RPSC have further submitted that the writ petition is liable to be thrown out on the ground of delay and latches. The appointments made in the year 1996 cannot be allowed to challenge in the year 2000 and that too when the petitioner himself appeared in the interview of the same selection. 19. Mr.R.C. Joshi, counsel for Dr.Sudhir Mehta placed reliance on the judgments reported in 1977 (2) SLR 289 – P. Chitharanja Menon & Ors. V/s A. Balakrishnan & Ors., 2003 (5) SCC 669 para 38 – Government of Maharashtra & ors. V/s Deokar's Distillery, on the issue that in case main order is not challenged then it is not open for the respondents to challenge the consequential order and delay is fatal and on the issue of yearwise direct recruitment placed reliance on the judgment of Division Bench of this Court reported in 1991 (1) RLR 727 – Rajasthan Council of Diploma Engineers v/s State of Rajasthan & anr. 20. Counsel for the impleaded respondent Mr.Reasham Bhargava assailed the conduct of the petitioner and further raised the objection that the present writ petition is hit by principle of res judicata. He has also supported the other objections of delay and latches and estoppel as well as submission on merits made by other respondents. In support of 15 his contention, Mr.Bharagava on the issue of res judicata placed reliance on the judgment reported in 1977 (2) SCC 355 para 2, 7 & 12, 1990 (2) SCC 715 para 35 & 47 (K) and 2005 (13) SCC 617 para 4, 9, 10, 11, 12, on the issue of taking eligibility of earlier years in which the vacancy has arisen 1994 (2) SCC 630 – J.K. P.S.C. V/s Narendra Mohan, 1999 (1) WLC 542, 1994 (Supp-2) SCC 226, 1994 (2) SCC 630, 1999 (1) WLC 542 – Luni Jogesh V/s State, 1999 WLC (UC) 218 – Roop Kumari V/s State and on the issue of advertisement stipulating last date of submitting application 1993 (Supp-3) SCC 168 – Rekha Chaturvedi V/s UOR, 1994 (2) SCC 723 – U.P.S.C. V/s Alpana, 1995 (Supp-4) SCC 706 – Harpal Kaur V/s Director, 1995 (2) WLC 58 – Yogesh Choudhary V/s RPSC, 1996 (1) WLC 212 – Sudhir Jiwan V/s RPSC, 1997 (4) SCC 18 – Ashok Kumar V/s Chander Shekhar, 1997 (6) SCC 574 - State of Rajasthan V/s Hitendra Kumar, 1998 (8) SCC 399 – State of Haryana V/s Anurag, 1999 (2) SCC 193 – Utkal University V/s Nru Singha Charan, and 2000 (2) WLC 223 – Ghanshyam Nagar V/s State. 21. In view of aforesaid submissions, the dispute on merit is whether 1.4.1990 was required to be taken as the date of eligibility or 31.3.1991 taken by the RPSC is the date of eligibility to call the candidate for 16 interview against the year 1990-91 is correct or not and not the dispute whether the date of eligibility is the last date of application. Law is well settled on the issue that in case no date of eligibility is prescribed in the Rules then the date of eligibility would be last date of application, therefore, catena of judgments on the aforesaid issue of last date of application will be date of eligibility are not of much consequence. 22. On the basis of pleadings of the parties, submissions made by counsel for both the parties and the subsequent orders passed by this Court, following questions emerge for consideration :- 1. Whether the present petition suffers from delay and latches? 2. Whether the petitioner is estopped from challenging the eligibility of other candidates in the facts and circumstances when he himself had appeared as a candidate against the vacancies of 1990-91 and remained unsuccessful? 3. Whether as per direction of Apex Court as well as of Division Bench which has modified the direction of the Single Bench, it was incumbent on the part of the respondents to call only the candidates against the year 1990-91 who have completed post graduation degree upto 1.4.1990? 4. Whether as per scheme of the Rules of 1962, 1st of April of the 17 year of vacancy is relevant date for deciding the eligibility even if vacancy of earlier year and subsequent year are clubbed and further advertised together? 5. Whether the action of the RPSC in fixing 31.3.1991 as the date of eligibility for the candidates to be called for interview for the vacancies of the year 1990-91 is legal? 6. Whether clubbing of vacancies is permissible in case of direct recruitment where usually date of eligibility is the last date of application? 23. I have gone through the record of the writ petition and considered rival submissions of the parties. 24. The operative part of the judgment dated 11.4.1994 of Single Judge in SB civil writ petition No.5424/1999 filed by the petitioner was modified by the Division Bench vide judgment dated 8th May, 1995 in special appeal Nos.492/94 and 533/94 filed by the RPSC. 25. The directions contained in decision dated 11.4.1994 in SB civil writ petition Nos. 5424/1990 & 5425/1990 for sake of convenience to decide present dispute, are numbered as follows:- 1. The petitioner shall be allowed to continue in service till the availability of the candidates selected by the Rajasthan Public 18 Service Commission. 2. The Commission is directed to interview the petitioners and other ad hoc appointees who have completed three years or more of service without requiring them to appear in the screening test. 3. While interviewing them along with other candidates the Commission shall take into consideration their performance and service record. 4. The respondent Government is directed to positively make yearwise determination of vacancies under Rule 8A of the Rajasthan Medical Service (Collegiate Branch) Rules and send requisition for various posts under these Rules on yearly basis. 5. The Commission must also make yearwise selection as far as possible. 26. Against the said judgment in both the cases, the Rajasthan Public Service Commission filed DB civil special appeal Nos.492/94 & 533/94. The said special appeals were disposed of on 8th May, 1995 without there being any order of cost and the directions issued by learned Single Judge were sustained with modifications. The aforesaid modified directions, for sake of convenience to decide the present dispute, are numbered as follows:- 1. The Rajasthan Public Service Commission is directed to interview the respondents-petitioners, namely, Dr. Rajendra Kumar Surekha and Dr.Sudhir Bhandari only, against the vacancies of the year 1990-91 on the basis of their performance and service record relating to their past service as Lecturers in the 19 Department of Medicine, and declare the results within a period