1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Durga Singh Rathore v. State of Rajasthan & Ors. S. B. CIVIL WRIT PETITION NO.4956/2005 under Article 226 of the Constitution of India. Date of Order :: 09.09.09 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Kuldeep Mathur, for the petitioner. Mr. IS Pareek, for the respondents. .... BY THE COURT : The respondents conducted process of selection for the purpose of promotion to the post of Head Constable (General) against the vacancies of the year 2004-05. Being eligible, the petitioner faced selection proceedings and in the list of qualified incumbents his name was placed at serial No.31, whereas one Shri Tarachand, Constable 824 was placed at serial No.26. By a letter dated 22.2.2005 the 2 petitioner informed the respondents that Shri Tarachand was not eligible to be considered for promotion in view of the Government of Rajasthan's circular dated 13.8.2004, which prescribes that the candidates having more than two children born on or after 1.6.2002 shall not be eligible to be considered for promotion. By acting upon the complaint submitted by the petitioner, name of Shri Tarachand was deleted from the list of qualified incumbents. By an office order dated 14.6.2005 the Commandant, II-Battalion, RAC, ordered for remitting 15 selected persons to undergo promotion cadre course. The name of the petitioner was not shown in the list aforesaid and it was communicated to him under a letter dated 29.7.2005 that against 10 vacancies a list of 15 persons was prepared, however, on deletion of name of any person no new person can be added as the rules do not provide for the same. Being aggrieved by it, this petition for writ is preferred. This Court vide order dated 23.8.2005 while admitting the writ petition for hearing as an interim measure directed the respondents to send the petitioner for promotion cadre course provisionally. It is informed to the Court by counsel for the petitioner that in pursuant to the interim order aforesaid the petitioner has already undergone the promotion cadre course, however, the promotion is not yet been accorded to him. 3 In reply to the writ petition the stand of the respondents is the same as given in letter dated 29.7.2005 (Anx.7). It is asserted by the respondents that the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as “the Rules of 1989”) nowhere prescribes to add any person in the list of selected incumbents if it is found that somebody was wrongly included in the list concerned and his name is deleted. The main contention of Shri Kuldeep Mathur, appearing on behalf of the petitioner, is that Shri Tarachand was erroneously considered by the respondents and if his candidature would have been rejected at inception then the petitioner could have been placed in the select list and he would have been sent for promotion cadre course. The petitioner has been denied from his right to be appointed as Head Constable by way of promotion for a fault of the respondents themselves. It is also stated by counsel for the petitioner that in similar circumstances this Court in Kishan Lal v. State of Rajasthan & Ors., reported in 2005(9) RDD 3594 (Raj), held as follows:- “10.It is the position admitted that the respondents made appointments of 15 persons from the select list containing the name of 16 persons and appointment was given to Shri 4 Satish Chandra. In the said select list name of the petitioner was at Sr.No.16. The petitioner immediately after appointment of Shri Satish Chandra made a complaint to the competent authority with regard to forgery made by Shri Satish Chandra. Not only this he filed a writ petition before this Court giving challenge to appointment of Shri Satish Chandra in the month of May, 1998 itself. This fact makes it crystal clear that the petitioner was approaching the respondents to examine genuineness of the documents produced before them by Shri Satish Chandra from beginning. The documents produced by Shri Satish Chandra were ultimately found forged and he was removed from service. In the event the respondents would have acted expeditiously or would have examined the genuineness of the documents before giving appointment to Shri Satish Chandra, his candidature would have been rejected at quite an earlier stage and the petitioner would have been given appointment against the vacancy occupied by Shri Satish Chandra under the order dated 23.3.1998. The petitioner was duly selected by a competent selection committee and appointment was not accorded to him at first instance only for the reason that the respondents treated Shri Satish Chandra a person eligible to be appointed as Physical Training Instructor though he was not and, therefore, the post was occupied by a person who was not eligible to hold the same. 11.Once it is found by the respondents themselves that the appointment to Shri Satish Chandra was given erroneously as he 5 was not possessing qualification requisite then the requirement is that the post left by him should have been offered to the petitioner as the petitioner was making complaint with regard to appointment of Shri Satish Chandra from the very first day of his appointment. The denial of appointment to the petitioner who is a duly selected candidate on the count that the select list concerned stood expired is not fair in present set of circumstances. The select list is required to be treated in currency for the reason that an appointment given on basis of select list in question was in dispute on the count of the conditions pertaining to eligibility and it was the petitioner himself who made such complaint.” He has also placed reliance on the judgment of this Court in Nathu Ram v. State of Rajasthan & Ors., reported in 2005(9) RDD 3631 (Raj), holding therein as follows:- “5.In their reply, the respondents have not controverted the petitioner's averments that petitioner's name finds place at S.No.46 of the final merit-list just below the name of Shri Navin Kumar Mahecha. The petitioner staked claim to appointment only after non- joining of service by Navin Kumar Mahecha in pursuance of the appointment order. The respondents themselves have admitted that Shri Navin Kumar Mahecha did not join the post as per the information received by them from the Head Master of the school where 6 Navin Kumar Mahecha was to join duties and the petitioner also pressed his claim well within time in consonance with the stipulations of the provisions of Rule 20 of the Rules, in the circumstances, the respondents were under obligation to consider the petitioner's claim and accord him appointment to the post which remained vacant due to non-joining of duties in pursuance of the appointment order by Navin Kumar Mahecha. The rule of preparation of merit-list and reserve-list incorporated in the relevant service rules is not for nothing. It has purpose and nexus with the object sought to be achieved. Where the appointments have been granted in pursuance of preparation of a merit-list in the order of merit, in the event of non-joining by the candidate appointed, at confluent right emanates in favour of the next candidate on the merit- list in that particular category within the period of subsistence of such list. Since, the respondents admit having been informed that Navin Kumar Mahecha has not joined, even if they themselves did not offer appointment to the petitioner who was next below Navin Kumar Mahecha, they were under legal obligation to consider the case of the petitioner for appointment. It is not the case of the respondents that the petitioner has staked a frivolous or vexatious claim for appointment. 6.Throughout, the petitioner has moved in the right direction with sufficient vigil and promptitude. The notice for demand of justice was made by the petitioner on 26.02.2004 and, having received no response from the 7 respondents, the petitioner immediately filed the writ petition before this court on 23.03.2004. The aforesaid appointment order was issued on 02.11.2003. Thus, it cannot be said that the petitioner has allowed the time to pass by so as not to be entitled to the right of consideration within the compass of Rule 20 of the Rules.” While defending action of the respondents, it is stated by Shri IS Pareek, counsel for the respondents that no person junior than the petitioner has been promoted and as such the petitioner is having no right to claim promotion. It is also asserted that under the Rules of 1989 there is no provision to include any person in the select list on deletion of the name of any person already placed in the select list. I have considered the arguments advanced. It is not in dispute that Shri Tarachand was not eligible to be considered for promotion as Head Constable (General). The respondents as a matter of fact should have not permitted Tarachand to participate in selection proceedings. Even if he was permitted to participate in selection proceedings, there was no occasion for his placement in the list of qualified incumbents as he was not eligible to be considered for promotion as per existing provisions. The petitioner immediately on knowing about placement 8 of Tarachand in the list of selected incumbents represented before the respondents and by acting upon the petitioner's complaint, name of Shri Tarachand was deleted from the list concerned. True it is, the Rules of 1989 nowhere prescribes for inclusion of the names in the select list after its declaration, but merely on that count an injustice made because of violation of Rules cannot be permitted to remain in existence. If the respondents would have not permitted Tarachand to face selection process then the position would have been entirely different and the petitioner would have been placed in the list at higher pedestal. This Court in the case of Kishan Lal (supra) considered this aspect and directed in that case to the respondents to place a person selected in the list of selected incumbents on exclusion of erroneously selected persons. Same was the position in the case of Nathu Ram (supra). In the instant case too the respondents should have included the petitioner in the select list or exclusion of Tarachand from the list of selected incumbents. The petition for writ, therefore, succeeds and, is allowed. The respondents are directed to reshuffle the list of selected incumbents by excluding Tarachand and further to proceed in accordance with law. On such reshuffling, if the petitioner comes in zone of selected candidates then he be promoted as per rules as he has already completed the promotion cadre 9 course. The respondents are directed to complete this exercise of promotion expeditiously as far as possible within a period of three months from today. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.