Kumari Veena Verma v. State of Rajasthan — 1998 DIGILAW 401 (RAJ)

Honble PRASAD, J.–Petitioner in the present writ petition is a practising Advocate at Ajmer. Pursuant to an advertisement, issued by the respondents for seven posts in the cadre of Rajasthan Higher Judicial Services, the petitioner applied to be selected. The petitioners case is that in the advertisement, though seven posts were mentioned, it was stipulated that posts advertised may be increa- sed. Thus, the advertisement was not for seven posts only. The case of the petitioner is that respondents have wrongly advertised seven posts. In fact, ten posts should have been advertised. This was because the direct recruits have quota of 33% in the total cadre strength. In the Schedule, cadre strength have been specified as 89, out of which only 19 posts were held by the direct recuits. In fact, 33% of 89 posts is around 30 since 19 posts were held by the direct recuits, therefore, at least 10 more direct recruits were required to be taken in the cadre of R.H.J.S. That is precisely the reason that while seven posts were mentioned, a rider was put that posts advertised may be increased. The selections were held. The petitioner also appeared. A list of selected candidates was prepared and the list prepared by the Selection Committee was placed before the Full Court. (2). The petitioner asserts that in the select list prepared by the Selection Committee, her name finds place at serial no.8. The Full Court considering that only seven posts are to be filed, considered the case of first seven in the list and recommended them for appointment to the Governor. (3). The case of the petitioner is that not only there were ten available vacan- cies for direct recruitment according to the calculation, but there were other vacancies also which were available with the respondents, as 11 inservice candidates were promoted on ad hoc basis in the Rajasthan Higher Judicial Services in the Full Court Meeting held on 6th & 7th December, 1996. (4). Apart from the seven selected candidates from direct recruitment and 11 inservice candidates being promoted on ad hoc basis, a number of courts were still lying unmanned. With the explosion of litigation, the respondents cannot shirk their responsibility from providing Judicial Officers for the courts. The petitioner was a selected candidate being placed at serial no.8. (4). Apart from the seven selected candidates from direct recruitment and 11 inservice candidates being promoted on ad hoc basis, a number of courts were still lying unmanned. With the explosion of litigation, the respondents cannot shirk their responsibility from providing Judicial Officers for the courts. The petitioner was a selected candidate being placed at serial no.8. Full Court having not considered her case has denied an appointment to her wrongfully as she is selected candidate. At the time, her name was forwarded to the Full Court, vacancies were available for being offerred to the petitioner. There is total inaction on the part of the respondents in not adhering to their advertisement whereby seven posts were advertised and this was given to understand that posts are likely to increase. (5). The petitioner had legitimate expectation to be offerred an appointment because she was within such number of the select list which fell in the quota of direct recruits and there were vacancies existing. Non offering of an appointment to the petitioner is a case whereby the petitioner has been denied her right wrongfully. (6). The petitioner further contends that petitioner is being denied appoint- ment on wrongful interpretation of Rule 6 of the Rajasthan Higher Judicial Service Rules, 1969 (hereinafter referred to as `the Rules). Rule 6 is reproduced as under:- ``6. Strength of the Service:- (1) The strength of the Service shall, until orders varying the same have been passed under sub- rule (2), be as specified in Schedule I. (2). The strength of the service may be varied by the Governor, from time to time, in consultation with the Court. (3) Notwithstanding anything contained in sub-rules (1) and (2), the Governor may, in consultation with the Court, hold any appointment to the service in abeyance for such time as he deems fit, without ther- eby entitling any person to compensation. (7). Learned counsel for the petitioner lays emphasis on the terms and words used in this rule that strength of service according to sub rule 1 of rule 6 is what is mentioned in Schedule until the same is varied by the orders of the Governor. Once the order varying the strength of service is made by the Governor, sub-rule 2 of Rule 6 specified in Schedule-I looses its significance. The change which is provided by virtue of sub-rule 2 of rule 6 is from time to time. Once the order varying the strength of service is made by the Governor, sub-rule 2 of Rule 6 specified in Schedule-I looses its significance. The change which is provided by virtue of sub-rule 2 of rule 6 is from time to time. If a variation is to be made from time to time, it cannot be expected that every time Schedule will be amended. For a variation being made in the cadre, if Schedule is to be amended every time, then that is an onerous exercise and cannot be legitimate meaning of the words in sub- rule 1 of rule 6. If rule 6 is read in conjunction with rule 9, then it is clear that appointments are to be made from time to time and every time, a fourth vacancy is available, a direct recruitee is to be appointed on that. (8). In the scheme of rule, there is no determination of the vacancies provided yearwise, as is provided in other service Rules. Respondents have been adopting a wrong measure by advertising the posts in a consolidated form for a particular year, the rules require that after three persons are appointed by promotion, the fourthone is required to be appointed by the direct recruitment. This can only be possible if a select list is kept ready and from that select list, the appointments are made. Since the petitioner is in the select list at serial no.8 and there are posts available, she should be offerred appointment. (9). The respondents have contested the petition filed by the petitioner and have straneously urged that petitioner has applied knowing fully well that the sele- ctions were limited to seven posts only. The mere inclusion of the words that number of posts is likely to increase does not mean that she can take it for granted that a selection which was advertised for seven posts, could be intended for more posts. She with open eyes applied for being recruited against the seven vacancies. It is by chance that she appeared at serial no.8. She has started devising such inter- pretations which were not in her mind originally. If she felt that the consolidated advertisement is not provided for in the rules, and select list is to be kept ready for future vacancies, then it was open to her to have challenged the advertisement. It is by chance that she appeared at serial no.8. She has started devising such inter- pretations which were not in her mind originally. If she felt that the consolidated advertisement is not provided for in the rules, and select list is to be kept ready for future vacancies, then it was open to her to have challenged the advertisement. She could have challenged this advertisement and said that this is not the mode and method which fits in the scheme of rules. The practice followed by the respon- dents in recruitment was that consolidated vacancies were determined for filling every fourth post by direct recruitment and for that, vacancies were determined and then advertised. At the relevant time, when the vacancies were advertised in the quota of direct recruits, seven posts fell and therefore seven posts were advertised. Advertisement of seven vacancies was rightfully done. The selection committee was called upon to make the recommendation for seven candidates. The list forwarded by the Selection Committee was rightfully considered and all the seven persons who were recommended by the Selection Committee were recommended by Full Court to be appointed. (10). In fact, selections, which were made by the Selection Committee, were not the selections in its true sense. The Selection Committee was only a recommendatory body. It was only for the Full Court to have considered the recommendations of the Selection Committee and final select list was prepared by the Full Court. The Full Court only has the power to select the direct recruits for being appointed against the vacancy meant for direct recruitment. In the scheme of rules, the recommendations of the Selection Committee cannot be considered to be a select list to give any right to the petitioner. For her being in the select list, she was required to be in the list recommended by the Full Court. In any list which was not prepared by the Full Court, if her name finds place, then she cannot be considered to be in the select list. In any case, at the time when seven selected candidates were recommended, the selection process was also closed by the Full Court. Once a particular selection process is closed, then the same cannot be re-opened for the purpose of offering the appointment from the list which has been considered to be closed. (11). In any case, at the time when seven selected candidates were recommended, the selection process was also closed by the Full Court. Once a particular selection process is closed, then the same cannot be re-opened for the purpose of offering the appointment from the list which has been considered to be closed. (11). It is important to note that the advertisement Annex.1 has only advertised 7 vacancies. The contention of the petitioner that the number was not fixed and was amenable to change is a wishful thinking. In any case, the advertisement says that the number of posts can be increased. No such increase was made. Can the petitioner ask for a mandamus to get the posts increased. (12). The petitioner has known that by the time, she filed the present writ peti- tion, fresh selection has been ordered by the respondents. With this contingency, her claim for consideration in a closed selection has reached a dead end. This writ petition was therefore not maintainable. (13). The petitioner has also filed written arguments. She has contended in the arguments that a Committee was constituted to determine the vacancies for the period 1.8.91 to 31.7.92. On the recommendation of the Committee Full Court resolved that seven vacancies are to be filled in by direct recruitment. It was only on 30.10.94 that these posts were advertised. Interviews were held on or about 17.5.96 a date when petitioner was interviewed. (14). The calculation of determination of vacancies was wrong. Taking the direct recruitment quota to be 33%, 10 posts should have been advertised. It is this No.10 which the petitioner contends is relevant because she was at No.8 in the recommendations. (15). The petitioner has further contended that with the creation of new posts, various courts were lying unmanned. Apart from this argument, regarding the number of posts in the cadre, a serious argument was raised that the number given in Schedule at the initial stage have become redundant as it has been varied. It is not necessary that every time there is a change in the Schedule, the Schedule should be amended. The scheme of the rules shows that the appointment of direct recruits is an ongoing process. As and when a fourth appointment is to be made, it is to be made from direct recruits. This is only possible if a list of selected persons is kept ready. The scheme of the rules shows that the appointment of direct recruits is an ongoing process. As and when a fourth appointment is to be made, it is to be made from direct recruits. This is only possible if a list of selected persons is kept ready. In this process also, before the fresh selection were ordered, the list already existing could have been exhausted. (16). I have considered the rival submissions and have also perused the record. (17). A consideration of rule 6 shows that the number of posts shown in the Schedule I was intended to be varied. The strength of service was liable to be varied by the executive order of the Governor from time to time with consultation of Court. Such variance was to be frequent also. A rapid growth in the number of courts required the growth of the cadre also. The frequency of increase in number of cou- rts, increased the number of Officers in the cadre, without increase in the cadre, such Officers cannot be appointed substantively. If the cadre strength cannot be changed without change in schedule-I, then it leads to an absurdity. By an order passed under Rule 6(2) strength of cadre can be changed. If corresponding ministerial act of changing the Schedule is not done, then can it be said that the cadre of the strength has not changed?. I am afraid that this is not the purport of rule 6(1). This rule clearly says that until orders varying the same have been passed under sub-rule (2), the strength of service shall be as specified in the Schedule. Once the order under rule 6(2) has been passed, the number given in Schedule I looses its significance and the strength of the cadre will be what the order passed under rule 6(2) would say. Thus, the cadre strength has to be seen in the light of the orders passed under Rule 6(2), Numbers given in schedule cannot be a guiding factor for an order under Rule6(2). (18). By the aforesaid interpretation given to Rule 6 of the Rules, how is the case of petitioner affected? The petitioner has not based her case on any orders pa- ssed in terms of Rule 6(2) of the Rules. Her case is based on the calculations based on the number given in schedule I of the Rules. (18). By the aforesaid interpretation given to Rule 6 of the Rules, how is the case of petitioner affected? The petitioner has not based her case on any orders pa- ssed in terms of Rule 6(2) of the Rules. Her case is based on the calculations based on the number given in schedule I of the Rules. So instances of appointment have been cited but they relate to subsequent period. It appears that she has not clear perception about her case and in trying to fish out something by chance. The respondent has determined vacancies for the period from 1.8.91 to 31.7.92. The re- ply filed by the respondent reads as under:- ``For the determination of the vacancies, the Committee was constituted by the Honble Full Court which submitted its report with the observation that 28 vacancies have occurred during the period from 01.8.91 to 31.07.92. Out of the aforesaid vacancies, 7 vacancies (2 per- manent and 5 temporary) were required to be filled in by direct recruitment from amongst the eligible Advocates. The report of the Committee was placed before the Honble Full Court which in its meeting held on 29.09.93 resolved as under:- ``Having considered the report of the promotion-committee, resolve that seven vacancies are determined for direct recruitment to the RHJS cadre keeping reservation for Scheduled Castes/Scheduled Tribes as per rules. (19). This being the position notice to the petitioner was clear that the selection was for seven posts. The determination was definite. How this determination was wrong for the period between 1.8.91 to 31.7.92 is not shown by the petitioner. Subsequent ad hoc appointments and fresh advertisement has been quoted but that does not vitiate the advertisement pursuant to which the petitioner appeared in the selection. The selection was for a definite number of posts. In the Full Court Resolution, no hint was given that the posts are likely to increase. In any case no order as advertised was passed by the Court as it did not feel that there was any such requirement. Subsequent ad hoc promotions were for subsequent vacancies and that has corresponded with fresh advertisement. In the Full Court Resolution, no hint was given that the posts are likely to increase. In any case no order as advertised was passed by the Court as it did not feel that there was any such requirement. Subsequent ad hoc promotions were for subsequent vacancies and that has corresponded with fresh advertisement. She cannot claim any right for future vacancies vide Shankarsan Dash vs. Union of India (1), wherein it has been observed as under:- ``We, therefore, reject the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules. (20). The basis of the claim of the petitioner is the fixed quota of 33%. She has claimed that this makes the available vacancies 10 but if her own argument is taken into consideration that fourth post is to go to direct recruitees, then this calculation falls to ground. In that event, it is only 25%. There appears to be force in the argument of the counsel for respondents that 33% is the outer limit. If fourth post is offerred to a direct recruilee, then there is perfect compliance of the quota. If that is done, then only seven vacancies were to be filled in by direct recruitment. For the given period, there were only 28 vacancies, 7 come to the quota of direct recruits, there was nothing wrong in the providing selection for 7 posts. (21). For the relevant period only 28 vacancies were to be considered. Out of these vacancies if fourth vacancy is to be offered to a direct recuitee in terms of Rule 9 then the determination was proper. Emphasis given by the petitioner on the proviso to Rule 9(1) is misplaced. It is not for the purposes of making appointments that the limit is prescribed. This prescription is to limit the number which may increase when, every fourth appointment is, therefore, qualified to be, as far as po- ssible. The claim of the petitioner that there were 10 vacancies available for appointment is, therefore, not maintainable. (22). As regards the process of selection and the offered for direct recruitment. This fourth appointment is, therefore provision for keeping a list ready for appointment on fourth post, suffice it to say that the petitioner cannot maintain this challen- ge. Her right flows from the advertisement given for seven posts. (22). As regards the process of selection and the offered for direct recruitment. This fourth appointment is, therefore provision for keeping a list ready for appointment on fourth post, suffice it to say that the petitioner cannot maintain this challen- ge. Her right flows from the advertisement given for seven posts. She has not chall- enged the advertisement. Unless this challenge is made this argument is not open to her. In any case the process is being followed from the inception of the rules. If a direction is asked for any other mode then the case has to be made on that premises. No such foundation has been laid by the petitioner in the writ petition. (23). Much has been said by the petitioner about her being at No.8 in the list prepared by the Selection Committee. This number does not give her status of a selected candidate. The list of selected candidates is prepared under Rule 21 by the Court. In the list so prepared by the Court her name was not there. Once she is not in this list her case has no lags to stand. Reply of the respondent in this regard is relevant, which reads as under:- ``Having considered the recommendations of the Committee constituted under Rule 20(2) of the Rajasthan Higher Judicial Service Rules, 1969, resolved to accept unanimously the recommendations and to send the names of the following selected candidates, arranged in or- der of merit to the Governor for appointment to the Rajasthan Higher Judicial Service:- 1. Shri Bulaki Das Saraswat (Bikaner) 2. Shri Shashital Gupta, (Dholpur) 3. Smt. Usha Dube, (Udaipur) 4. Shri Mahendra Kumar Maheshwari (Ajmer) 5. Shri Vishnu Kumar Mathur, (Jaipur) 6. Miss Anuradha Sharma, (Bhilwara) 7. Shri Sukhpal Bundel (SC) (Dausa). (24). Her stand that she is a selected candidate and, therefore, appointment has been wrongly denied to her is, therefore, not in conformity with the rules. (25). What is further important is the date of filing of the writ petition. She has filed the writ petition on 19.12.1996. The respondent has on 25.5.1996 closed the process of selection. A new process was initiated in the meeting of the Court on 6/7th December, 1996 and an advertisement for fresh recruitment was issued on 21.12.1996. Once a selection is closed no indulgence can be granted vide Shankarsan Dash (supra). She has filed the writ petition on 19.12.1996. The respondent has on 25.5.1996 closed the process of selection. A new process was initiated in the meeting of the Court on 6/7th December, 1996 and an advertisement for fresh recruitment was issued on 21.12.1996. Once a selection is closed no indulgence can be granted vide Shankarsan Dash (supra). The petitioner has filed the writ petition much after the closure of the selection in which she is claiming a right. She is, therefore, precluded on the count of delay and lached also. (26). The case of the petitioner that there were 10 vacancies taking 33% of the existing vacancies has been found to be devoid of any force. At the relevant time from the vacancies available the determination was 7 for direct recruitment. The Court in its resolution has not observed that it has to be advertised that the number of vacancies may increase. A reading of the resolution of the Court which was the basis for the advertisement clearly shows it. Such resolution has been quoted in the foregoing paragraph. Unless the increase is made in the number of vacancies the petitioner cannot succeed. The petitioner is asking for that she should be appointed on the 8th vacancy. The Court has not thought it proper to increase the number of vacancies. If the Court has not increased then can a mandamus be issu- ed on the case pleaded by the petitioner, this a question which deserves to be answered in the negative. (27). For the relevant period, after due consideration only 7 vacancies were determined. For the subsequent period 11 vacancies were found and they were also advertised. Had there been any case that for the relevant period more vacan- cies were there, the Court could have considered the case for increase in the number of vacancies but the Court in its wisdom found that 11 vacancies which have been advertised vide its resolution taken in the meeting of 6th and 7th December, 1996 were the future vacancies from the point when 7 vacancies were determined. Thus, for all practical purposes they were the future vacancies and not the vacancies for which the advertisement was issued in which the petitioner competed. Thus, for all practical purposes they were the future vacancies and not the vacancies for which the advertisement was issued in which the petitioner competed. In this view of the matter also, the case of the petitioner does not deserve any consideration, when the selection is for a particular number of vacancies then any future vacancies are not required to be taken into consideration for that selection. (28). The petitioner has relied upon a number of case laws. It would be relevant to go through them. First of them is Krishi Upaj Mandi Samiti, Jodhpur etc. vs. State of Rajasthan and ors. (2). According to this judgment it has been held that the appointing authority could not refuse the recommendations of the selection authority on arbitrary grounds. In the instant case, firstly, there was no selection in favour of the petitioner because the selection could only be made by the Court and the Court has not considered it proper to select her because there were only 7 vacancies to be filled in. Right from the inception, the Court had intended to fill in only 7 vacancies. If the restriction is only for these 7 vacancies then it cannot be said that grounds for consideration were not valid or inconformity with law. There- fore, this case has no guiding factor. (29). Another case relied upon by the learned counsel for the petitioner is O.P. Garg and others, etc. etc. vs. State of U.P. and others (3). In this case, the Honble Supreme Court has held that the vacancies, which cannot be regarded as fortuitous or adventitious can be included in the cadre. In the instant case, there was no case where the question of inclusion of any other vacancies was relevant. After a proper consideration the Court had advertised 7 vacancies and have not increased this number. Such being the case, this case has no application in the facts of the present controversy. (30). Another case relied upon by the learned counsel for the petitioner is Ramnath Khanna vs. State of Rajasthan (4). In this case, this Court has held that when a post is lying vacant, the mandamus can be issued to fill up that post. Such observations were made by this Court when the petitioner held the post on ad hoc basis. In the instant case, the petitioner was not even in the select list prepared by the Court. In this case, this Court has held that when a post is lying vacant, the mandamus can be issued to fill up that post. Such observations were made by this Court when the petitioner held the post on ad hoc basis. In the instant case, the petitioner was not even in the select list prepared by the Court. Therefore, there is no question of any direction being issued in her favour. (31). Another case relied upon by the learned counsel for the petitioner is Miss Neelima Shangla, Ph.D. Candidate vs. State of Haryana and others (5). In this case the relevant rules of recruitment. Rules 8 and 10 require the Public Service Commission to prepare complete list of all the successful candidates. The Public Service Commission had forwarded the names of few candidates presuming limited number of vacancies. In the case in hand there was no rule which envisages that the list of all the successful candidates has to be prepared. The selection committee made recommendations selecting 7 candidates. They were required to make a list of 7 candidates only. No rule requires that the list of all successful candidate was to be prepared. The interpretation of rules was relevant in the case of Miss Neelima Shangla (supra). No such rule exists in the present case. Therefore, this case has also no guiding factor. (32). Another case relied upon by the learned counsel is R.S. Mittal vs. Union of India (6), wherein the Honble Supreme Court has held that a person on the select panel has no vested right to be appointed to the post for which he has been selected. However, it was also observed that the appointing authority cannot ignore the select panel on its whims. Ours is not a case where any whims have come into play. The entire list prepared by the Court under Rule 20 of the Rules was operated. The only thing is that the number which was likely to be increased was not increased. Therefore, it cannot be said that the Court has acted in a fashion which was arbitrary or in any way whimsical. Therefore, this case also has no application. (33). The petitioner has not levelled any allegations of mala fides. A broad al- legation of arbitrariness has been made. The basis of allegation is that the Court has not increased the number of vacancies as prescribed in the advertisement. Therefore, this case also has no application. (33). The petitioner has not levelled any allegations of mala fides. A broad al- legation of arbitrariness has been made. The basis of allegation is that the Court has not increased the number of vacancies as prescribed in the advertisement. It is also alleged that though there were vacancies but the same have not been filled. These allegations are too general without specific plea that this was done to defeat the case of the petitioner. The Court has not considered to increase the number. From those who have been appointed, none is less meritorious to the petitioner. No arbitrariness can, therefore, be seen in the action of the Court. Support for this can be seen in the following Supreme Court observations in the case of State of Orissa vs. Hari Prasad Das (7): ``whether to fill up a post or not, is a policy decision and unless it is shown to be arbitrary, it is not open to the Tribunal to interfere with such decision of the Govt. and direct it to make further appointments. The Tribunal in directing the Govt. to make further appointment on the efficiency ground of public administration went beyond its jurisdiction. (34). The case of the petitioner rested on the presumption that the Court will increase the vacancies from 7 which was not done. The mandamus for increase in the number of vacancies cannot be issued because it was the domain on the employer to limit the number of vacancies to the advertised posts. More particularly when the determination of vacancies has not been found to be against the provisions of law. Therefore, no indulgence can be granted to the petitioner in the form of issuing a mandamus to consider her case for appointment. (35). Lastly, it has been contended on behalf of the petitioner that the vacancies which were determined were for the period upto 31.7.1992. In future if the va- cancies are for a particular year then her case is to be considered qua that year and she should not be held to be over age because for subsequent years no recruitment was made in the given year. In this regard the petitioner has placed reliance on Prakash Chand etc. vs. State of Rajasthan & anr. (8). In this regard the petitioner has placed reliance on Prakash Chand etc. vs. State of Rajasthan & anr. (8). Interestingly the petitioner has not chosen to stake her claim in the selection which was held subsequent to the selection in which she has been claiming her right. This argument was made by the petitioner apart from the averments made in the writ petition. Therefore, no factual matrixs were there. Therefore, no finding is given in this regard. However, it may be observed that if in future any advertisement is issued and the vacancies pertain to a particular year when she was not over age and the petitioner seeks re- laxation of age then the respondents may consider her case for being included in the list of candidates to be interviewed. (36). In this view of the matter, it has been found that there is no case in favour of the petitioner and the writ petition deserves to be dismissed. (37). In the result, the writ petition has no merit and the same is dismissed with the aforesaid observations. No orders as to costs.