1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.4743/2006 (Kaushal Kumar Gupta Vs. State of Raj. & Anr.) Date of order : 29.7.2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. B.M. Aggarwal with Mr. R.K. Bohra, for the petitioner. Mr. N.M. Lodha, Addl. Advocate General. Mr. Tarun Joshi, for respondent No.2. Heard learned counsel for the parties. In this writ petition, the petitioner is claiming directions to the respondents for considering his candidature for appointment on the post of Teacher Grade-III and to direct the respondents to fill up 80 vacancies remaining unfilled, which is advertised in the year 2004 in pursuance of advertisement Annexure-8. The case of the petitioner that he was eligible to be appointed on the post of Teacher Grade- III, therefore, as per his qualification he applied in pursuance of the advertisement Annexure-8 and he secured 134 marks in the written examination conducted by R.P.S.C., therefore, he was declared successful in written examination and was called for interview. As 2 per learned counsel for the petitioner, after appointment in accordance with the merit certain posts fallen vacant due to non-joining of persons and for other reasons. The Commission has published cut of marks Whereby the candidates who secured 134 marks in the General male category was recommended for appointment and as per the petitioner, he has also secured 134 marks but his name was not recommended by the R.P.S.C. For the post of Teacher Grade-III. The case of the petitioner is that after recommending names by the R.P.S.C. against unfilled vacancies for recruitment in pursuance of advertisement Annexure-8, 80 vacancies remained unfilled due to correctness of certificates, so also, for other reasons, therefore, the name of the petitioner was also to be recommended and he was to be provided appointment on the post of Teacher Grade-III. The petitioner has secured 134 marks and the name of person who secured 134 marks and born on 16.6.1970 was included in the merit list, therefore, his name was recommended and petitioner's name was not recommended because as per the criteria of R.P.S.C. that if two candidates secured equal marks then date of birth is required to be taken into account for the purpose of preparing merit. The petitioner is claiming appointment against unfilled vacancies as per cut of marks 3 published by the Commission vide Annexure-10. As per the news-item dated 2.7.2006 Annexure-11 published by the respondents that the R.P.S.C. is not going to fill up the vacant posts in pursuance of the results declared last year, therefore, as per decision of Commission, the name of the petitioner was not forwarded and considered to provide appointment against the existing vacancies. Therefore, it is prayed that the respondents may be directed to consider the candidature of the petitioner for recruitment on the post of Teacher Grade-III against those vacancies which remained unfilled. Per contra, learned counsel for the respondents submits that the petitioner's contention is totally unfounded because first of all the criteria laid down by R.P.S.C. is upheld by this Court that in the event of equal number of marks, the date of birth is required to be taken into account as such while declaring cut of marks the candidate who has secured 134 marks and whose date of birth was 16.6.1970 was included in the merit list and petitioner has secured 134 marks but his date of birth is 18.10.1970, therefore, his case was not recommended by the R.P.S.C. The petitioner cannot claim any right to be appointed as Teacher Grade-III on the basis of marks obtained by him, so also, now at belated stage the petitioner is seeking mandamus for recruitment against the vacancies which were advertised in the 4 year 2004 and now the appointments are over, therefore, there is no question of considering the case of the petitioner. The petitioner has preferred this writ petition on 26.8.2006 and result was declared by R.P.S.C. on 5.1.2005 Annexure-9 and the said merit list was in force till 5.1.2006 and thereafter the list of selected candidates was expired for recruitment on the post of Teacher Grade-III. Admittedly the petitioner's name was not recommended because as per the criteria he was not entitled to be appointed as Teacher Grade-III though he has secured 134 marks. The petitioner is claiming appointment against the vacancies advertised in the year 2004. Thereafter, subsequent selection took place, therefore, at this stage, no directions can be issued for appointment on the post of Teacher Grade-III against the vacancies which were advertised in the year 2004 and remained unfilled. Therefore, this writ petition may be dismissed. After hearing both the parties, in this case certain facts are not disputed. Out of those undisputed facts, first undisputed fact is that the petitioner has secured 134 marks and last appointment was given to the candidate who has secured 134 marks but his date of birth was 16.6.1970 and the petitioner has been denied appointment on the ground that his 5 date of birth is 19.10.1970. As per the criteria of the respondents, the age of candidates is required to be taken into account. In my opinion when the petitioner is not challenging the criteria and claiming his consideration for appointment on the post of Teacher Grade-III against the unfilled vacancies then obviously petitioner can approach this Court for filling up the vacancies. The petitioner is well within his right to say that he was in the merit but appointment has been denied although he has secured 134 marks but he is younger then the person who was recruited. In my opinion, when vacancies were in existence and when waiting list was in existence then the respondent – Commissioner was under obligation to recommend the name of the petitioner for appointment on the post of Teacher Grade-III to the Government. The petitioner has relied upon the judgment of this Court in case of Nathu Ram Vs. State of Raj. & Ors., reported in 2005 (9) RDD 3631 in which it has been held by this Court in para-7 which reads as follows : “It may be noted here that a backlog vacancy of a direct recruitment post generates only in the event of non- availability of eligible and suitable candidate. The event of non-availability of eligible and suitable candidate, if occurs, occurs on its own and cannot be allowed to be brought about. Denial of appointment from out of the merit list and leaving the vacancy unfilled tantamounts to forging up the 6 backlog. If the petitioner stands in merit just below the candidate appointed to the post, in the event of non-joining duties by such candidate appointed to the post, the petitioner has right to appointment to that post against the vacancy remaining unfilled due to non-joining of the candidate appointed to the post. Such denial within the time- frame postulated in Rule 20 of the Rules on the past of the respondents is arbitrary and in violation of Articles 14 and 16 of the Constitution of India. The object of Rule 20 also casts duty to discharge upon the respondents to act in the manner as would promote the object and satisfy the requirement of the statute. In the circumstances, therefore, it is not open to the respondents to ignore the claim of a person founded and approved by them on the basis of merit. In substance, in their reply, the respondents have not placed before the Court valid reasons to deny appointment to the petitioner.” In this view of the matter obviously, if vacancies were in existence during currency of waiting list, then it was obligatory duty of the respondents to fill up those unfilled vacancies because the benefit of appointment was extended to the persons who secured similar marks which is 134 but was elder in age than the petitioner. In this view of the matter, this writ petition is allowed. The respondents are directed to 7 consider the case of the petitioner for appointment on the post of Teacher Grade-III if unfilled vacancies were in existence within one year during currency of the merit list as per prescribed rules. It is also required to be observed that R.P.S.C. shall recommend the name of the petitioner for the purpose of recruitment on the post of Teacher Grade-III as per his selection for the vacancy which remained unfilled. The State Government shall also ascertain from the record whether any vacancy was in existence at the relevant time and if it is found that the vacancy was in existence then requisition may be sent to R.P.S.C. for recommending names of candidates as per merit prepared under the advertisement in question . If petitioner is found eligible then he shall be provided appointment after due consideration with all benefits from the date of appointment of the candidate who has secured same 134 marks as secured by the petitioner and he may be given benefit of notional fixation from the date when the person who was provided appointment having same marks in the merit list. This exercise may be completed within a period of two months from the date of filing certified copy of this order. No order as to costs. (GOPAL KRISHAN VYAS), J. arun