1 In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur. Judgment 1.D.B.Special Appeal (Writ) No.172/2004 Jayant Sharma vs State of Raj. and Anr. 2.D.B.Special Appeal (Writ) No.322/2004 Dinesh Chand Jaga vs State of Raj.and Anr. 3.D.B.Special Appeal (Writ) No.414/2004 Mahesh Chand Sharma vs State of Raj. 4.D.B.Special Appeal (Writ) No.415/2004 Rajesh Kumar Pareek and ors vs State of Raj. 5.D.B.Special Appeal (Writ) No.416/2004 Sanjay Sharma vs State of Raj. 6.D.B.Special Appeal (Writ) No.520/2004 Narendra Kumar Deg vs State of Rajasthan and ors 7. D.B.Special Appeal (Writ) No.528/2004 Kailash Chand Sharma and ors vs State of Raj. and ors 8.D.B.Special Appeal (Writ) No.530/2004 Yogesh Chander Sharma Gautam vs vs State of Rajasthan and ors 9.D.B.Special Appeal (Writ) No.531/2004 Dalip Singh and another vs State of Raj. and ors 10.D.B.Special Appeal (Writ) No.548/2004 Suresh Chand Sharma vs State of Raj. and ors 11.D.B.Special Appeal (Writ) No.550/2004 Jugal Kishore Sharma vs State of Raj.and ors 12.D.B.Special Appeal (Writ) No.561/2004 Om Prakash Sharma vs State of Rajasthan and Anr. 13. D.B.Special Appeal (Writ) No.602/2004 Pradeep Kumar Sharma vs State of Raj. and Anr. 14.D.B.Special Appeal (Writ) No.637/2004 Shyam Sundar Sharma and another vs State of Raj. and Anr. 15.D.B.Special Appeal (Writ) No.703/2004 Bhika Ram Chaudahry vs State of Raj. and Anr. 16.D.B.Special Appeal (Writ) No.704/2004 Jag Ram Vishnoi vs State of Raj. and Anr. 17.D.B.Special Appeal (Writ) No.705/2004 Surendra Kumar Sharma and another vs State of Raj and Anr. 18.D.B.Special Appeal (Writ) No.740/2004 2 Smt. Sangeeta Sharma vs State of Raj. & ors 19.D.B.Special Appeal (Writ) No.797/2004 Jai Hind Kumar Sharma vs State of Rajasthan and Anr. 20.D.B.Special Appeal (Writ) No.365/2005 Ashok Kumar Sharma and another vs State of Raj. and Anr. 21.D.B.Special Appeal (Writ) No.1303/2005 Dinesh Kumar Sharma vs The Secretary Medical and Health Date of Order : 7th October,2010 Hon'ble Mr. Justice Arun Mishra Hon'ble Mr.Justice Satya Prakash Pathak Mr.A.K.Sharma, Mr.S.C.Gupta Mr.Ashok Gaur, Mr.S.P.Sharma, Mr. N.K.Bhatt Mr.K.C.Sharma Mr.Ganesh Narain Saxena for Mr.Shailesh Prakash Sharma Mr.D.S.Mehta Dr. Saugat Roy Mr. Ajay Gupta Mr. Vijay Singh Mr.S.Saxena, for the appellants. Mr.S.N.Kumawat, Addl. Advocate General Mr.SS Sharma Mr. Rajendra Soni Mr.DD Khandelwal Mr.Vinod Goyal, for the respondents. By the Court: These intra-court appeals have been filed assailing the legality of the order dated 23.1.2004 passed by the learned Single Judge dismissing the writ applications seeking urgent temporary appointments under 3 Rule-27 of the Rajasthan Ayurvedic, Unani Homoeopathy and Naturopathy Service Rules, 1973(hereinafter to be referred as the 'Rules of 1973'). Petitioners applied for appointment pursuant to advertisement dated 15.9.1992. 59 posts were advertised to be filled in on urgent basis as it was not possible to fill in the posts immediately either by direct recruitment or by promotion under the Rules of 1973. In such a situation, Rule-27 of the Rules of 1973 was invoked to issue the aforesaid advertisement by the State Government. As per Rule-27, such appointment will not be continued beyond a period of one year without referring to the Commission for concurrence where such concurrence is necessary and shall be terminated immediately on its refusal to concur. The appointments made were to be discontinued on the availability of the regularly selected candidates under the Rules. On the basis of the advertisement which was issued for 59 posts, 77 appointments were given on urgent temporary basis and 14 other persons were also given 4 appointments similarly on the basis of the orders passed by the court in their favour, these 14 persons were from earlier batch. One more appointment of Rini Khandelwal was made. The petitioners submitted that 100 posts were decided to be filled in vide order dated 13.12.1993 pursuance to a fresh advertisement which was issued inviting the applications for urgent temporary appointments under Rule-27 of the Rules of 1973. It was notified that those who had already applied and placed in the merit list, there was necessity for them to apply again, however, appointments were not made. In the year 1994, one Shri Pramod Shankar Mishra and 41 others filed S.B.Civil Writ Petition No.1047/1994, the same was dismissed vide order dated 25.3.1994. Review Petition filed was allowed on 16.2.1995. On 13.1.1997, Division Bench in D.B.Civil Special Appeal No.20/1995 remitted the matter to the learned Single Judge. Learned Single Judge again vide its order dated 18.12.2000 passed in S.B.Civil Review Petition No.57/94 dismissed the same. Shri Pramod Shankar Mishra and 26 others 5 filed D.B. Civil Special Appeal (Writ) No.107/2001 which was allowed by the Division Bench of this court vide order dated 29.5.2002. The Division Bench Of this Court directed that as those incumbents were pursuing the remedy, only their cases be considered and they be appointed against the available vacancies in case they are otherwise fit to be appointed on urgent temporary basis. Thereafter, in compliance of the order, the appointment of these 27 incumbents were ordered by the State Government vide order dated 12.11.2003.Thereafter other writ petitions came to be filed pointing out that some of them were higher in the merit as compared to the candidates who had been appointed pursuant to the court order dated 29.5.2002 rendered in the case of Shri Pramod Shankar Mishra and others. It is also pertinent to mention that even those incumbents filed fresh writ petitions on the basis of the order passed by the Division Bench though earlier S.B.Civil Writ Petition No. 1975/1995 preferred by them namely Shri Kamal Kishore 6 Sharma, Shri Shankar Lal Pareek, Shri Rajesh Kumar Pareek, Shri Jayant Sharma and Shri Hari Kant Trivedi was dismissed on 2.4.1997 in which order this court found that regular appointments have already been made on all the vacant posts after due advertisement in the year 1995 hence there was no question of appointing the petitioners. In view of this, the petition was dismissed. The said order attained finality. It is also pertinent to mention here that some of the petitions of the year 1995 remained pending in spite of the decision rendered in the case of Shri Pramod Shankar Mishra and ors. Those writ petitions were heard along with writ petitions filed in the year 2003, 2004 and onwards and have been dismissed by impugned order passed by the learned Single Judge. Consequently, these intra-court appeals have been preferred. The matter was referred to larger bench as this court opined that Pramod Shankar Mishra's case was not correctly decided. The larger bench has declined to answer the reference on the ground that no specific question were referred to it for adjudication. 7 Petitioners have submitted that merit list of 260 candidates was prepared, in pursuance of the advertisement issued in the year 1992 for 59 vacancies, in which the names of the petitioners appeared. 91 persons were appointed whereas the petitioners were not appointed. As the persons,lower in merit have been appointed in pursuance to the order of this court in the case of Shri Pramod Shankar Mishra, they cannot be discriminated with as such they are entitled for appointment under Rule-27 of the Rules of 1973 as urgent temporary appointees. SLP preferred against the decision of Shri Pramod Shankar Mishra's case had been dismissed by the Apex Court vide order dated 28.7.2003. The action of the State Government is discriminatory as the same treatment ought to have been meted out by the State Government to them. The right for consideration has arisen to them when lesser meritorious candidates were appointed in the year 2003. Thus, the action is violative of principles enshrined under Articles 14 and 16 of the Constitution of India. 8 The stand of the respondents is that the advertisement was issued for 59 vacancies, 118 appointments have been made against those vacancies. 91 appointments were made by the State Government pursuant to advertisement issued in the year 1992 and 27 under the order passed by this court in the case of Shri Pramod Shankar Mishra. It is also contended that there were no vacancies left for the year 1992 and regular selections have been made under the Rules of 1973 in the year 1995-96 pursuant to the fresh advertisement. Thus, once regular selection have been made of the incumbents by the RPSC,there was no occasion thereafter to make the appointments on temporary basis. All the vacancies stood exhausted in the year 1995-96. Additional reply has also been filed in compliance of the order dated 11.3.2005 along with the reply vacancy chart has been filed. It is submitted that initially 59 posts were advertised in the year 1992 against which 77 appointments were given which were followed by 14 more appointments. 10 more appointments were also given. Thus, in all 91 persons 9 appointed as against 59 advertised posts. Later on, 27 appointments were also made pursuant to order of this court in Shri Pramod Shankar Mishra's case. There is no vacancy on which the cases of the appellants can be considered. Advertisement was also issued for appointment on contract basis on 6.10.2003. 200 persons were given appointments on contract basis on 9.2.2004 and on 11.11.2004, 150 more persons were given appointment pursuant to advertisement dated 6.10.2003. Mr.A.K.Sharma,Mr.S.C.Gupta, Mr.Ashok Gaur, Mr.S.P.Sharma, Mr. N.K.Bhatt, Mr.K.C.Sharma, Mr.Ganesh, Narain Saxena for Mr.Shailesh Prakash Sharma, Mr.D.S.Mehta, Dr. Saugat Roy, Mr. Ajay Gupta, Mr. Vijay Singh Mr.S.Saxena, learned counsel appearing on behalf of the appellants submitted that there is no ground to differentiate the cases of the appellants from that of Shri Pramod Shankar Mishra and others which has been allowed by the Division Bench and the decision was affirmed by the Apex Court. The State Government had acted arbitrarily and not as per the findings recorded in the 10 aforesaid judgment. The vacancies were available as pointed out in the decision of Shri Pramod Shankar Mishra's case. The State Government had taken a decision to appoint 100 more persons in the year 1993. In the advertisement issued in the year,1994, it was mentioned that the incumbent who had earlier applied need not submit application forms afresh, thus, the petitioners were deprived of their chance to apply against the advertisement. Thus,State Government should have acted upon the list of select candidates first and that was not done. Consequently, several writ petitions came to be filed by the appellants including Shri Pramod Shankar Mishra and others though the writ petition filed by some of the petitioners namely Shri Kamal Kishore Sharma and four others was dismissed on merit by the learned Single Judge and the order attained finality. The fresh right has accrued to them as the lesser meritorious candidates have been appointed. The writ petition No. 1975/1995 titled Kamal Kishore Sharma and others was dismissed on the ground that it could not be pointed out 11 that the persons who were given appointment were less meritorious than any of petitioners. It was also submitted that even the writ petitions filed by incumbents who have filed the writ petitions after the decision was rendered in Shri Pramod Shankar Mishra's case could not have been dismissed on the ground of delay or latches as lesser meritorious candidates had been appointed by the State Government pursuant to the order of this court. A model employer like the State Government, ought to have made appointment in accordance with the merit of the incumbents. There is no ground to dismiss the writ petition which were filed in the year 1995 as their cases were squarely covered by the decision of this court rendered in the case of Shri Pramod Shankar Mishra and others. It was also submitted that there was not merely a question of urgent temporary appointment as the State Government has amended the Rule 6 of the Rules of 1973 by adding proviso 7 by Amendment made in the year 2006. It has been provided in proviso-7 to Rule-6 of the Rules of 1973 that all persons who had been 12 appointed as Ayurved Chikisak on adhoc/temporary basis between the period from 6.5.1990 to 31.12.1993 and have been continuously holding the post of Ayurved Chikitsak on the date of commencement of Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Service (Amendment) Rules, 2006 shall be screened by the committee for adjudging their suitability on the post of Ayurved Chikitsak. Thus, the counsel have submitted that had the petitioners been appointed pursuant to the advertisement of 1992, their cases would have been screened as per proviso 7 of Rule-6 of the Rules of 1973. The State Government cannot be permitted to discriminate the petitioners, the action of the respondents is violative of Articles 14 and 16 of the Constitution of India inasmuch as they have appointed lesser meritorious candidates ignoring the higher meritorious candidates. Mr. S.N.Kumawat, Learned Addl. Advocate General appearing on behalf State has contended that considering the nature of appointment under Rule-27 of the Rules of 1973, petitioners cannot claim any right to 13 be appointed after the regular appointment were made on available vacancies in the year 1995-96. The vacancies which were available were filled in by regular incumbents and no vacancy was left to be filled in as found by this court in S.B.Civil Writ Petition No.1975/95 decided on 2.4.1997. This aspect was not placed for consideration before the Division Bench which decided the matter of Shri Pramod Shankar Mishra and others. Thereafter also continuously the available vacancies have been advertised by the Rajasthan Public Service Commission at least 8 times to be filled on regular basis and lastly on 27.8.2010. Thus, there was no question of appointment of appellants on a temporary urgent basis while rendering decision in the case of Shri Pramod Shankar Mishra and others,aforesaid aspect was not considered. This court had directed to appoint them, as SLP was dismissed, the order had to be complied with, they have been appointed under Rule-27 of the Rules of 1973 and they have not been appointed on regular basis and ultimately RPSC has not concurred for their 14 continuance and steps were being taken for their removal. However, these persons have filed writ petitions before the learned Single Judge, an interim stay had been granted in their favour by the Single Judge. The State has been restrained from terminating their services. Thus, considering the nature, urgent temporary appointment, it cannot be said that right of the petitioners has been taken away or that they have been discriminated with. The petitions which have been filed in the year 2003, 2004 and 2005 suffers with latches. Thus, the Single Judge is justified in dismissing the writ petitions, therefore, no case for interference is made out in the intra-court appeals. The first question for consideration is to examine that what kind of right was available to the petitioners under the advertisement which was issued in the year 1992. It is not disputed that 59 vacancies were advertised though the decision was taken to fill in 100 more posts on temporary basis in the year 1993 and those could not be filled in. However, regular selection 15 was made in the year 1995-96 and those regular vacancies were advertised in the year 1995-96 and the appointments of 724 persons were made through RPSC. Thus, whatever vacancies were available, the State Government had filled in by regular incumbents selected by Rajasthan Public Service Commission. Rule-27 of Rules of 1973 under which the advertisement in question was issued in 1992 is quoted below: 27.Urgent temporary appointment.(1) A vacancy in the Service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Government or by the authority, competent to make appointment as the case may be by appointing , in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the Service, where such direct recruitment has been provided under the provisions of these Rules. Provided that such an appointment will not be continued beyond a period of one year without referring to the Commission for concurrence where such concurrence is necessary and shall be terminated immediately on its refusal to concur. Provided further that in respect of post in Service for which both the above methods of recruitment have been prescribed, the Government shall not save with the specific permission of the Government in the Department of Personnel fill, the temporary vacancy against the direct recruitment quota by a whole time appointment for a period exceeding three 16 month, otherwise than out of person eligible for direct recruitment and after a short term advertisement + (2) In the event of non-availability of suitable person, fulfilling the requirements of eligibility for promotion, Government may, not withstanding the condition of eligibility for promotion required under sub rule (1) above, lay down general instructions for grant of permission to fill the vacancies on urgent temporary basis subject to such conditions and restrictions regarding pay and other allowances as it may direct. Such appointment shall however, be subject to concurrence of the Commission as required under the said sub-rule.” It is apparent from the bare reading of aforesaid Rule-27 that these appointments are urgent temporary appointments and not regular one, they were stop gap arrangement till the availability of the candidates by way of regular selection through RPSC. In all 59 vacancies were advertised in 1992 and 118 appointments have been made, 91 in the year 1992-93 and 27 under the orders of this court in Shri Pramod Shankar Mishra's case. The respondents cannot be ordered to operate the list which was prepared by them in the year 1992 as the vacancies advertised were 59. No doubt, a decision was taken in the December 1993 to fill in 100 posts, however, no appointments were made. The urgent temporary appointments were supposed to 17 continue till the availability of regular selected candidates. The regular appointments of 724 candidates were made in the year 1995-96. Thus, the 59 vacancies which were advertised in the year 1992 stood filled, it was stop gap arrangement till regular selection was made. There was absolutely no right available with these incumbents to claim urgent temporary appointment under Rule-27 of the Rules of 1973 once regular appointment had been made on available vacancies in the year 1995-96. As per Rule- 27, such appointment can be made when regular appointment cannot be made. Once the regular appointments had been made in 1995-96, the persons, in the list of 1992 which was prepared, have no legal right to claim appointment on urgent temporary basis as the urgent need came to an end. Once regular selection have been made, no urgent temporary appointments could be ordered on previous list as it would have defeated the very intentment of Rule 27 of the Rules of 1973. Petitioners cannot have any right whatsoever to be appointed under Rule-27 of the Rules 1973. It is also 18 pertinent to place on record that after 1992 regular appointments have been made at least eight times by RPSC and recently whatever vacancies were available have been advertised on 27.8.2010. Aforesaid material aspect had been taken into consideration in the decision of this court in previous writ petition No. 1975/1995 filed by Shri Kamal Kishore Sharma and four others which was dismissed by Single Bench of this court on 2.4.1997 in which this court has observed: “In view of this,I do not find any merit in this petition. Counsel for respondents also gives out that regular appointments have already been made on all the vacant posts after due advertisement in the year 1995. In view of this, this petition has no merit and it is dismissed. In the facts and circumstances, there shall be no orders as to costs.” Coming to the question of parity claimed by the petitioners in view of the decision rendered by Division Bench of this Court in Pramod Kumar Mishra's case, In our opinion, due to lapse of time by now and subsequent events of regular appointments having been made no parity can be claimed. The Division Bench of this court in Pramod Shankar Mishra's case observed: “After long lapse of time it would 19 be justiciable to consider the cases only of the candidates who have persuaded the remedy in the court of law. The long lapse of time would not come in the way of the person who have a legal right and are pursing their legal right to be adjudicated by the courts. The time lapse in the court proceedings cannot be considered as an adverse circumstance against the persons who are pursuing their legal remedy and who have a right to be given relief under the law. For the aforesaid reasons, the appeal is allowed. The orders passed by the learned Single Judge in S.B. Civil Writ Petition No. 1047/1994 on 25.3.1994 and in S.B. Civil Review Petition No. 57/1994 on 18.12.2000 are set aside. The State Government is directed to consider the cases of the appellants and give them appointment under Rule 27 of the Rules of 1973. This exercise shall be done by the State Government within a period of one month from the placement of this order before the authority concerned. There shall be no order as to costs.” Division Bench of this court has considered the effect of long lapse of time and has observed that it would be justifiable to consider the cases only those who have persuaded the remedy in the court of law , thus the other incumbents who were not petitioners, their cases were not to be considered by the respondents. The petitioners who have filed writ petitions after the decision rendered in Shri Pramod Shankar Mishra's case cannot thus claim parity on the ground that they be appointed 20 in view of the decision rendered in D.B.Civil Review Petition No.57/1994. No doubt, some of the petitioners have filed writ petitions in the year 1995, their petitions have also been dismissed, however, these incumbents cannot claim any right of appointment on urgent temporary basis as regular selections have been made in the year 1995-96, all vacancies were filled and the whatever right which was available under the advertisement of 1992 issued under Rule 27 came to an end when regular selections were made. Due to lapse of 18 years by now and subsequently 8 times vacancies have been filled on regular basis we are not inclined to interfere. Rule-27 of the Rules of 1973 provides to continue the appointments made thereunder till the time regular selections are made. In 1995-96 all available posts were advertised and 724 regular appointments were made, thereafter on several times vacancies have been filled up on regular basis. We are in agreement with the view taken in the decision rendered by Single Judge of this court in S.B.Civil Writ Petition No. 21 1975/1995 (Shri Kamal Kishore Sharma and four others) decided on 2.4.1997. The aforesaid material aspect of subsequent events was not placed for consideration before the Division Bench of this court deciding Pramod Kumar Mishra's case. Some of the petitioners before us are those whose Writ Petition No. 1975/1995 was dismissed on merits and order attained finality, their cases cannot be reopened. In all fairness, the decision of Shri Kamal Kishore Sharma's case ought to have been brought to the notice of Division Bench while the matter was decided and also the fact that vacancies were filled by regular appointments. None of legal right was infringed, contingency of emergent situation came to an end with regular appointment. The petitioners cannot claim parity to the persons who have been given appointment in view of the decision rendered in Shri Pramod Shankar Misra's case (supra) as subsequent events that in 1995 and thereafter also regular incumbents were appointed was not placed for consideration before this court which changes complexion. 22 In our opinion, the petitioners cannot claim any right to be appointed in the facts situation as the regular appointments have been made at several times by the RPSC for the available vacancies. In case the vacancies have arisen subsequently, the incumbents were required to stake claim for regular appointment, mere placement in waiting list