Naresh Chandra Shukla v. R. P. S. C. and Another — 1997 DIGILAW 1252 (RAJ)

Honble MADAN, J.–The questions of law which arise for determination of this court in the instant writ petition are as indicated herein below :– (i) Whether under Article 226 of the Constitution of India, it is open to this court to issue a mandamus to the respondents i.e. the Rajasthan Public Service commission, Ajmer-respondent No. 1 (hereinaf- ter referred to as ``the Commission) and Secretary to the Government, Agriculture Department Govt. of Rajasthan (Respondent No. 2) particularly when, the petitioner has not succeeded in establishing his legal right for performance of the corresponding legal duty ? (ii) Whether the petitioner is entitled to the relief contrary to the rules particularly by when, no such legal or statutory right was subsisting as on the date of preferring the writ petition to this court ? (iii) Whether the statutory duty that may be enjoined by mandamus can be imposed by the Constitution of India or a statute or by rules or orders having the force of law ? (iv) Whether any mandamus can be issued to the Government to refrain from enforcing the provisions of law or to do something which is contrary to law ? (2). The facts which are relevant for deciding the controversy at issue between the parties are that on 9.1.1986, 25 posts of District Agriculture Officer were adver- tised by the Commission for filling up the same in the Agriculture Department. The petitioner who was eligible for being considered for appointment on the post of District Agriculture Officer, applied for the said post to the Commission. It is further the case of the petitioner that as on 10.8.1986 the screening Test was held from amongst the eligible candidates who had applied for the above post. The petitioner was called for interview vide letter dated 22.10.1986 (Exh. 1). The result was published in Rajasthan Patrika dated 19.10.1986 and was also affixed on the notice board of the Commission as on 19.11.1986, the name of the petitioner was shown at Sr. No. 1 in the reserve list and he was accordingly intimated in this regard vide letter dated 9.1.1987 (Exh. 2). It has been contended by the learned counsel for the petitioner that on 26.12.1986 a list of 25 selected candidates was sent by the Commission to the State Government and the eligible candidates were appointed in terms of the order dated 11.2.1987 (Exh. 3). 2). It has been contended by the learned counsel for the petitioner that on 26.12.1986 a list of 25 selected candidates was sent by the Commission to the State Government and the eligible candidates were appointed in terms of the order dated 11.2.1987 (Exh. 3). The last date for joining was intimated to the candidates by the Commission as 28.3.1987. Since the name of the petitioner did not figure in the aforesaid list of selected candidates, the petitioner submitted two representations to the Director Agriculture Department vide Exh. 4 and 5 in view of the fact that certain selected candidates had not joined nor they had applied for extension and since the last date which was prescribed for joining had already lapsed and consequently the reserve list may be requisitioned from the Commission and the petitioner who was placed at Sr. No. 1 in the reserve list be appointed. (3). It has further been contended by the petitioner that in response to the above representations, the Director Agriculture Department vide his communication dated 27.4.1987 informed the Special Secretary Agriculture Department that since one person had not joined on the post of District Agriculture Officer, one candidate may be invited for filling up of the said vacancy from the reserve list. Sub- sequently, on 25.6.1986 a requisition was sent to the Commission by the Special Secretary Agriculture Department i.e. the State Government requesting the Commission to recommend atleast two names from the reserve list. In response to this, the Commission vide its communication dated 9.7.1987 informed the State Government that since the aforesaid request was received after the expiry of the due date i.e. 25.6.1986, therefore, it was not possible for the Commission to send fresh names from the reserve list for filling up the vacancies as against those candidates who were recommended and selected for appointment though, they had not joined their duties. Consequently, on 20.7.1987 the State Government again sent another communication to the Commission for sending two names by reiterating the requ- est earlier made and stating that the prescribed limit for sending the names from the reserve list was 25.6.1986 while the requisition in this regard had already been sent by the State Government to the Commission. Consequently, on 20.7.1987 the State Government again sent another communication to the Commission for sending two names by reiterating the requ- est earlier made and stating that the prescribed limit for sending the names from the reserve list was 25.6.1986 while the requisition in this regard had already been sent by the State Government to the Commission. It has further been contended by the learned counsel for the petitioner that consequent to above, the petitioner personally visited the office of the Commission on 12.7.1989 when he was informed that a meeting of the Commission had already been convened and taken place on 5.5.1988 and the petitioners case was taken up in the meeting and it was resolved in the meeting that since the names of the candidates from the reserve list including that of the petitioner was sent to the Commission by the State Government after the date of expiry of the life of the select list and since the life of the select list could not be extended contrary to the statutory rules ip-so-facto by the Commission, hence, it was not possible for the Commission to accommodate the petitioner for being given appointment on the post of District Agriculture Officer. Hence, thereafter being aggrieved from the refusal of the Commission to forward the name of the petitioner to the State Government and in view of the consequential denial of appointment to the post of District Agriculture Officer, the petitioner moved this court by way of instant writ petition in the year 1989 which is now being disposed of finally by this order. The petitioner in this case has sought relief of mandamus from this court on the grounds inter-alia that :– (a) the date on which the original list of selected candidates was forwarded to the State Government by the Commission was 26.12.1986 and, therefore, 26.12.1986 itself cannot be a date inclusive of the period of 6 months and hence the period of 6 months would commence from 27.12.1986 which stood expired as on 25.6.1987; (b) the Governments requisition had been received by the Commission on 25.6.1987 and thus, it was so received within the period of 6 months from the date on which the original list was forwarded by the Commission to the State Government; (c) Rule 22 of the Rajasthan Agriculture Service Rules, 1960 (herein- after referred to as ``the Rules of 1960) provides as under :– ``Provided that the Commission, may to the extent of 50% of the advertised vacancies keep names of suitable candidates on the reserve list. The names of such candidates may, on requisition, be recommended in the order of merit to the Government within six months from the date on which the original list is forwarded by the Commission to the Government. (4). During the course of hearing, Mr. R.C. Joshi, learned counsel for the petitioner while placing reliance upon the aforesaid provisions of Rule 22 of Rules has vehemently contended at the bar that the above provision clearly indicates that the Commission was under a statutory obligation to recommend the names of the selected candidates from the reserve list in view of non-joining of some candidates who though recommended had not joined. Consequently the petitioner being at Sr. No. 1 in the reserve list should have been called for and be given appointment on the post of District Agriculture Officer. His further contention is that the very ob- ject of keeping the select list alive for a period of 6 months from the date of its preparation or publication was that in the event of non-joining of the selected candidates, the vacant post should be filled up from the reserve list but, the petitioners name was not recommended for joining the duties on the above post since his name was obviously sent after the expiry of the validity period of select list and hence not considered for appointment. His further contention is that on proper appreciation and construction of aforesaid Rule, the position which emerges is that the period of 6 months should commence with effect from the date on which the original list was forwarded by the Commission to the State Government for appointment of selected candidates duly recommended by the Commis- sion for their appointment and the point involved for consideration of this court is as to whether the day on which the main list was issued is to be excluded from the validity period of 6 months of the select list of the recommended candidates or not for computing the limitation ? In this regard, the learned counsel for the petitioner has placed reliance upon Article 12(2) of the Limitation Act, 1963 (hereinafter referred to as ``the Act of 1963) which provides, as under :- ``12(2). In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was propoinded, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. (5). The respondents on being noticed by this court have filed their reply wherein they have specifically controverted the aforesaid contentions of the lear- ned counsel from the petitioner. The respondent No. 1 i.e. the Commission has contended inter-alia that though it is not disputed that the original list of selected candidates who were recommended for appointment on the post of District Agriculture Officer was despatched by the Commission to the State Government on 26.12.1986 but, since the life of the reserve list was only for 6 months w.e.f. the said date, which consequently stood expired on 25.6.1987, obviously the life of the said list could not be extended ip-so-facto at the sole option of the Commission contrary to the rules and hence the petitioner was not considered for appointment on the post of District Agriculture Officer. It has been further contended that the first date i.e. the date when the list was despatched as well as the last i.e. the date when it was received by the Commission is not to be excluded for computing the limitation as per Article 12(2) of the Act of 1963 and the said provision of the Limitation Act is not attracted to the case. It has been further contended that it was not possible for the Commission to consider the case of the petitioner for appointment since it was not mandated in view of Rule 22 of the Rules, 1960 which specifically provides that the Commission, may to the extent of 50% of the advertised vacancies keep names of suitable candidates on the reserve list and notwithstanding the fact that the petitioners name was placed in the reserve list, his candidature could obviously not be recommended by the Commission to the State Government since the validity period of the original list was only 6 months as reckoned w.e.f. 26.12.1986 when the original list was forwarded to the State Government by the Commission and hence, the said date was a date inclusive of the period of 6 months which would obviously commence w.e.f. the said date i.e. the date of despatch of the said list and hence obviously since the above period of the select list stood expired on 25.6.1987, it was not possible for Commission to extend the aforesaid period con- trary to the rules. During the course of hearing, Mr. Munindra Singh, learned counsel for the Commission has contended that in view of the aforestated position and as per the Rules the petitioner could not be considered for being given appointment though, he was placed at Sr. No. 1 in order of merit in the reserve list and though, he had the preferential right to be considered for appointment as a result of non- joining of some of the selected candidates from the original list but, the preferential right cannot be construed as a statutory right for appointment and since the appointments were made strictly in accordance with the aforesaid rules, it was neither possible for the Commission to give appointment to the petitioner contrary to rules nor interpretation which would be contrary to the above rules. (6). (6). During the course of hearing, this court vide its orders dated 28.3.1995 and 13.3.1997 after hearing the learned counsel for the parties and as per the statement of the learned counsel for the petitioner that out of 25 candidates who were originally recommended for appointment from the original list, only 23 candidates had joined and as such two vacancies had arisen had directed the respondents to consider the candidature of the petitioner on the post of District Agriculture Officer in accordance with law if his candidature was within the eligibility zone for being given appointment on the relevant date when the vacancies had arisen for the above post. This contention of the learned counsel for the petitioner was strongly refuted by Mr. Munindra Singh, learned counsel for the Commission on the ground that even though, those two vacancies also stood filled up and there is no vacancy stood against which the petitioners candidature can be considered for the post of District Agriculture Officer. In order to verify the aforesaid contention of the learned counsel for the Commission, this Court had also directed the Commission to place the relevant material before this Court for its perusal and it was informed that 25 vacancies which were advertised for filling up the above post as on 26.12.1986 have already filled up and hence, it is not possible for the Commission to accommodate the petitioner on the post of District Agriculture Officer. This court was further informed by the learned counsel for the Commission that the list of the approved candidates was despatched and forwarded by the Commission on 26.12.1986 to the State Government on the same day for its approval and since the period of 6 months as per the provisions of Rule of 1960 stood expired on 25.6.1987 itself and since till 26.6.1987 the Commission had not received any requisition from the State Government hence, it was not possible for the Commission to forward the said proposal to the State Government for its approval. (7). The respondent No. 2 i.e. the State through its Secretary Agriculture Department also filed its reply to the writ petition stating that the original list of selected candidates was despatched by the Commission to the State Government on 26.12.1986 while the other contentions of the petitioner have been specifically controverted and not admitted in the reply. (7). The respondent No. 2 i.e. the State through its Secretary Agriculture Department also filed its reply to the writ petition stating that the original list of selected candidates was despatched by the Commission to the State Government on 26.12.1986 while the other contentions of the petitioner have been specifically controverted and not admitted in the reply. It has further been contended that the requisition for sending two names from the reserve list was received by the Commission on 26.6.1987 but, on the said date the life of the reserve list stood expired which was relevant only from the date of despatch of the main list of the State Government and since the main list was despatched on 26.12.1986 and the period of 6 months stood expired as on 25.6.1987 therefore, it was not possible for the State Government to recommend the case of the petitioner for appointment. It has further been contended that the petitioner has no locus-standi to claim any relief from this court since no candidate from the reserve list has been appointed and even those two cavancies which were left vacant on account of non-joining of the candidates from the select list earlier have already been filled up. (8). I have examined the rival claims and contentions of the learned counsel for the parties as well as the legal position on the subject. On prima-facie view of the matter, I am of the considered opinion that before any relief sought or claimed by the petitioner for issuance of a writ of mandamus or for any other appropriate writ, order or direction under Article 226 of the Constitution of India can be claimed or granted, the petitioner has to establish as to whether i) what was the legal right for the performance of a legal duty by the party against whom the mandamus is sought and whether the said right was subsisting as on the date of presentation of the writ petition ? and ii) the nature of legal or statutory duty which may be enjoined by mandamus can be imposed by the Constitution of India or statute or by the spe- cific rules or orders on the subject having the force of law ? and ii) the nature of legal or statutory duty which may be enjoined by mandamus can be imposed by the Constitution of India or statute or by the spe- cific rules or orders on the subject having the force of law ? In this regard I am of the view that no mandamus can be issued or any direction in this regard can be issued by the Court to any appropriate authority or State functionary to refrain from enforcing the provisions of law or to do so something which would be contrary to law. This being the position in view of the statutory rules as referred to above on the subject, I am unable to appreciate as to how the petitioner who was kept as a candidate in the reserve list can claim violation of any legal right or injury particularly, when all the vacancies from the original list including two vacancies which were left unfilled earlier from the select list also stood consequently filled up. Hence, in the absence of any legal or statutory right which the petitioner has failed to establish in accordance with the provisions of the rules as referred to above, there can obviously be no violation of any legal right or injury and, therefore, the writ petition being devoid of merit is not maintainable. (9). My aforesaid observations are also fortified from the judgment of the Apex Court in the matter of State of U.P. & Ors. vs. Harish Chandra & Ors. (1). In this case, the recruitment/selection to the posts of Class-III and Class IV was made under the Sub-ordinate Officers Clerical Staff (Direct Recruitment Rules), 1988 in the State of U.P. The procedure of selection was challenged before the Allahabad High Court in Civil Misc. Writ Petition No. 25696/1990. The learned Single Judge of Allahabad High Court issued certain directions against the respondents which was challenged in Appeal before the Apex Court. Writ Petition No. 25696/1990. The learned Single Judge of Allahabad High Court issued certain directions against the respondents which was challenged in Appeal before the Apex Court. Since, the select list prepared by the Department was inaccordance with the statutory rules contained in Rule 26 of the Recruitment Rules, the irresistible conclusion drawn by the Apex Court in interpretation of the relevant rules was that since the validity of the select list prepared by the Department was only for one year from the date of its preparation and it stood expired as on the date when the petitioner challenged the same before the High Court, the High Court was obviously not correct in giving an interpretation for extension of the select list beyond the statutory period as envisaged under the rules and hence no mandamus could be issued to the respondents since the same could be issued by the Court only when a legal right for the performance of a legal duty by the party against whom the mandamus is sought was subsisting on the date of petition. Consequently, the Apex Court while allowing the appeals set-aside the impugned-judgments/orders of the High Court against which the appeals were preferred by the State of U.P. before the Apex Court. (10). During the course of hearing, learned counsel for the petitioner has pla- ced reliance on a judgment of the Apex court in the matter of State of Bihar vs. Rameshwar Prasad (2) where, the Apex Court had reversed the decision of the Patna High Court in Special Leave to Appeal preferred against its decision. The question which had arisen for consideration in the said appeal before the Apex Court was confined to the interpretation of Article ??? of the Limitation Act, 1963. With reference to the said provisions of the Act of 1963 the question for consideration was as to whether the period of limitation would run from the date of filing of the award in the Court or the date of service of notice thereof by the Court ? of the Limitation Act, 1963. With reference to the said provisions of the Act of 1963 the question for consideration was as to whether the period of limitation would run from the date of filing of the award in the Court or the date of service of notice thereof by the Court ? The Apex Court came to the conclusion that in computing the period of limitation of 30 days, since the objections were filed within the statutory period of 30 days which were clearly within the time therefore, the appeal be held maintainable and consequently the order passed by the Patna High Court was set- aside and the matter was remanded back to the trial court for disposal of the objections in accordance with law. In my opinion, the ratio of the aforesaid decision of the Apex Court in neither attracted nor applicable to the instant case in view of Rule 22 of the Rules of 1960 as referred to above which specifically provides that the names of the candidates so recommended by the Commission on the receipt of the requisition by the State Government in order of merit, the life of the select list on which their names figure, their validity for the purposes of consideration shall remain only for a period of 6 months from the date of which the original list was forwarded by the Commission to the State Government, and since the said period stood expired as on the date of its receipt by the State Government, and the petitioner not being within the zone for consideration obviously cannot have nay grievance for violation of any legal right before this court. (11). As a result of above discussion, the writ petition does not survive and being devoid of merit is consequently dismissed with no order as to costs.