JUDGMENT 1. - The petitioner in the instant writ petition sought the following relief: (i) Quashing of the impugned order dated March 3, 1994 (Annexure-1) wrongly allocating/appointing the petitioner to the Rajasthan Commercial Taxation Services; (ii) Declaring the appointment of Shri G.P. Gupta (respondent No.4) in the R.P.S. at S.No. 3 of order dated 26.2.1994 (Annexure-1) as cancelled and inoperative due to his non joining uptil 7.3.1994; (iii) Declaring the said non joined post in the R.P.S. of said Shri G.P. Gupta as a vacancy from 26.2.1994/7.3.1994, under existing Rule 18(2) of Rules, 1962 and allotting the same for appointment of the petitioner in the R.P.S. as per his 2nd preference and being next in merit as per provisions of Rule 18(1) of Rules, 1962 and Rule 25 and 26 of R.P.S. Rules 1954 w.e.f. 7.3.1994 from which date petitioner has been appointed in Commercial Taxes Service (Annexure-2); (iv) Ordering/directing the respondents No.1 and 2 to issue orders appointing the petitioner in Rajasthan Police Service w.e.f. 26.2.1994/7.3.1994 against the said vacancy of Shri G.P. Gupta (S.No. 3 Annexure-1) and deeming petitioner's seniority confirmation etc. and pay/increments in the R.P.S. w.e.f. said date 26.2.1994/7.3.1994 by deeming his appointment in R.P.S. below S.No. 14 i.e. Shri Manish Agarwal and above Shri Dusht Daman Singh S.No. 15 in said orders dated 26.2.1994 (Annexure-1) and allowing the aforesaid benefits to the petitioner vis-a-vis officers appointed in R.P.S. per Annexure-1. 2. Facts in brief are that the petitioner appeared at the Combined Competitive Examination 1991 for the State and Allied Services, results of which were announced on August 7, 1993. In accordance with Rules of competitive examination 1962, the petitioner gave preference for appointment as under: (1) Ist preference R.A.S. ; (2) IInd Preference R.P.S.; (3) IIIrd Preference Commercial Service. 3. The petitioner was selected for all the said three services but since his position in regard to R.A.S. was little lower he was not selected/appointed for RAS. In accordance with Rules of competitive examination 1962, the petitioner gave preference for appointment as under: (1) Ist preference R.A.S. ; (2) IInd Preference R.P.S.; (3) IIIrd Preference Commercial Service. 3. The petitioner was selected for all the said three services but since his position in regard to R.A.S. was little lower he was not selected/appointed for RAS. But in so far as 2nd preference is concerned the petitioner's merit position being at No. 35 and 2 persons above him were Sarava Shri Raghuvar Dayal Merit No. 6 and Ram Niwas Sharma Merit No. 29, having got less than 60 marks in interview, the petitioner's merit position became at No. 33 which entitled him to be selected appointed in the R.P.S. against the non joined non- filled vacancy of Shri Gyan Prakash Gupta who was appointed at S.No. 3 by the order dated February 26, 1994. 4. As per Rule 10(4) and Rule 18 of the Rules 1962 the sections and appointments are required to be made strictly in order of merit and as per preferences given by the candidate. The petitioner had not changed his option/preference at any time and as such his second preference for R.P.S. remain valid and operative and he was entitled to be appointed to the R.P.S. against the said vacancy caused by Shri G.P. Gupta respondent No.4. The respondents 1 and 2 on the basis of the recommendations of Rajasthan Public Service Commission about the selectees in said services made appointments to concerned services and the respondents necessarily and mandatorily adhere to the merit and order of preference. The respondents issued appointment orders in all the three services within a span of 7 days i.e. R.A.S. orders were issued on February 24, 1994, R.P.S. orders were issued on February 26, 1994 and commercial services order were issued on March 3, 1994. The petitioner averred that the orders were issued simultaneously and the respondents did not and could not have reckoned or offered opportunity to the selected candidates for exercise of their rights of preference. On account of issuance of simultaneous orders in all the three services, the candidates were asked to join by 7.3.1994 at the HCM institute, there was no occasion left nor opportunity provided to the selectees, including the petitioner to obtain a chance for being selected/appointed to the higher preference. On account of issuance of simultaneous orders in all the three services, the candidates were asked to join by 7.3.1994 at the HCM institute, there was no occasion left nor opportunity provided to the selectees, including the petitioner to obtain a chance for being selected/appointed to the higher preference. The petitioner averred that for being appointed to R.P.S. which was his 2nd preference, no opportunity was given to him. The resultant which was his even though the petitioner had given 2nd preference for R.P.S., but was shunted to 3rd preference of Commercial Services and appointed vide order dated March 3, 1994 and since March 7, 1994 was given as the final date for joining at R.C.M. institute failing which the appointment order to this service of 3rd preference was ordered to lapse. The petitioner was in fact given no chance at all. The petitioner averred that thus it is clear that he was denied his rights of 2nd preference for R.P.S. in respect of vacancy that could possibly occur due to non joining of any one of the persons so appointed to R.P.S. as per order dated February 26, 1994. The 2nd preference given by the petitioner for the post of R.P.S. in this manner stood wholly negative and denied, which is contrary to said Rules 10(4) and 18 of the Rules of 1962 as also Rules 25 and 26 of the R.P.S. Rules 1954. Shri G.P. Gupta did not join upto March 7, 1994 at the HCM Institute thus due to his non joining a clear vacancy occurrred on March 7, 1994 and as such the petitioner being at 35 (32 as shown) and his preference being 2nd for this Service, should have been appointed on March 7, 1994 in R.P.S. and his appointment order in Commercial Service issued on March 3, 1994 should have been amended and he was to be given appointment in place of Shri G.P. Gupta in R.P.S. and given position in R.P.S.C in that order dated February 26, 1994 below Manish Agrawal and above Dusthdaman Singh (S.No. 15) and merit No. 43 (NGE quota) as per Rules 10(4) and Rule 18 of the Rules of 1962 . The petitioner averred that in not doing so his rights against the said vacancy in R.P.S. stood denied and need rectification. 5. The petitioner averred that in not doing so his rights against the said vacancy in R.P.S. stood denied and need rectification. 5. The further case of the petitioner is that the respondent No.4 Shri G.P. Gupta has not even joined in R.P.S. at the time of filing of the writ petition and the vacancy in the R.P.S. continues to date. The respondent no. 4 was working in R.J.S. cadre and no rule permit any candidate to hang on far so long and at his will and keep the post reserved for him till he joins Last date of joining as stated was March 7, 1994 and thereafter due to his non joining his appointment automatically lapses and vacancy becomes available to the petitioner for being next in merit and due to 2nd preference. The foundation course at HCM institute completed and Institutional course at R.P.S. commenced but the respondent No. 4 has not joined and thus his vacancy is clear and he has a right to be given appointment. 6. The petitioner further averred that pushing him to 3rd preference of Commercial Services and not allowing him the right to be appointed to R.P.S. against said vacancy is not only unjust but contrary to said rules relating to merit and preferences. The petitioner joined the 3rd preference i.e. Commercial Taxes Services on March 11, 1994. 7. The further case of the petitioner is that in Government of India, in respect of selections/appointments based on U.P.S.C. Exam, there is a clear procedure of first giving an offer of a certain service to the selected candidates and he is told in writing that his position is likely to be improved and he is likely to be considered for higher preference in case of non joining of a candidate in the higher service. Any procedure contrary to this as followed by the respondents is violative of Rules and a complete denial of right of preferences. In fact otherwise, the preferences would become meaning less. This position has not been seen by the Government and deserves to be reconsidered. 8. The petitioner further averred that the vacancy caused due to non joining of respondent No. 4 G.P. Gupta cannot be carried forward to next selection because the vacancy has not been caused after his joining and then resigning. This position has not been seen by the Government and deserves to be reconsidered. 8. The petitioner further averred that the vacancy caused due to non joining of respondent No. 4 G.P. Gupta cannot be carried forward to next selection because the vacancy has not been caused after his joining and then resigning. The amended Rule 18(2) of the 1962 which was made effective from 31.7.1991 cannot be invoked to deny the right of appointment to the petitioner to the said vacancies which were determined under Rule 9 of R.P.S. Rules 1954 w.e.f. 1.4.1991 i.e. earlier to this amendment hence these vacancies and selections made for them are outside the pale of this amended Rules which is effective only from 31.7.1991 and could apply in respect of next years selections of vacancies of 1.4.1992 to 31.3.1993. The amended rule is also ex facie colourable exercise of powers of Rule making authority to deny such vacancies to persons being next in merit and having right of 2nd preference. The rule in any case constradicts and is violative of the right of preference and merit position. Vacancies occurring on ground of non joining by a candidate cannot be treated as fresh vacancy and carried over the next year because selections were duly made against that post for which notification was made and selections done. A post available for one particular selection cannot be carried over to next selections when persons like the petitioner were available being next in merit and having valid operative second preference and have to be offered to next in merit and that person given appointment. This practice and procedure which is based on sound legal position is duly adopted in U.P.S.C. selections by the Government of India. 9. Respondent No.1 in the reply averred that since amended Rule 18(2) came into force on July 31, 1991 much prior to the date of appointment which is in the year 1994, the State Government was justified in carrying forward the post remaining vacant on account of non joining of respondent No.4. The provisions of amended rule had a cogent reasoning behind it. The petitioner has not challenged the validity of amended Rule 18(2) therefore he is not entitled to any relief. 10. The provisions of amended rule had a cogent reasoning behind it. The petitioner has not challenged the validity of amended Rule 18(2) therefore he is not entitled to any relief. 10. The respondent No.3 Rajasthan Public Service Commission filed reply to the writ petition on April 7, 1995 and mainly submitted that as per the preference given by the petitioner his name appeared at Merit No. 33 in the merit list of Rajasthan Administrative Services and at Merit No. 33 in the merit list of Rajasthan Police Services and further at No. 30 in the merit list of Rajasthan Accounts Services. The respondent No.4 Shri G.P. Gupta's name appeared at No. 21 in the merit list of Rajasthan Administrative Services as well as at No. 18 in the merit list of Rajasthan Accounts Services further at No.21 in the merit list of Rajasthan Police Services. The merit lists were sent to the State Government and it is for the State Government to give appointments to the selected candidates as per the preferences given by them. The respondent Commission has nothing to do in issuing the appointment orders. So far as determination of the vacancies is concerned the same done by the State Government and the respondent Commission makes selections strictly as per the requisition sent by the State Government and also as per the provisions of the relevant Rules and the main relief in the writ petition has been claimed from the State Government only. 11. The respondent No.4 also filed separate reply to the writ petition and averred that the vacancies determined and notified as per Notification dated October 19, 1991 were subsequently determined in the year 1993 after Notification of the vacancies and were raised from 15 posts initially advertised to 23 posts in R.P.S. If the number of posts to R.P.S. were taken to be 15, the petitioner being at S.No. 33 in the select list of general candidates will not even get his present posting not to speak of R.P.S. The Government cancelled the appointment order of the respondent No.4 without considering the genuine request of the respondent in an arbitrary manner and in violation of the principles of natural justice and administrative norms. It was further submitted that the respondent No.4 filed a writ petition before this Hon'ble Court challenging the order dated August 19, 1994 and his writ petition was allowed on January 3, 1996. The State of Rajasthan was directed to give sufficient time to the respondent No. 4 for joining. The State of Rajasthan was further directed to appoint him in R.P.S. after his resignation is accepted. The answering respondent was allowed to join R.P.S. by June 7, 1994 in public interest by the order dated March 5, 1994 and if the petitioner was aggrieved with this order he should have challenged the order dated March 5, 1994. The petitioner having failed to avail of that opportunity cannot seek any relief in this writ petition. The respondent No.4 further averred in the reply that the amendment to Rule 18(2) of 1962 Rules was made even before inviting applications by the R.P.S.C. for State Services and as such the petitioner cannot raise a claim on the basis of unamended rule. The petitioner has concealed the dates of further determination of vacancies from 9 to 14 (General seats) of R.P.S. with the oblique motive to base his claim on unamended provision of Rule 18(2) and as such he did not come with clean hands. 12. The petitioner filed review petition against the order dated January 3, 1996 which was allowed on the ground that the respondent No.4 concealed the fact that no period was prescribed for joining the service. The maximum period of 30 days was provided under the Rajasthan Civil Services (Joining Time) Rules 1981. Since the respondent No. 4 failed to join R.P.S. the writ petition was ordered to be dismissed. 13. I have considered the rival submissions and scanned the material on record. 14. The maximum period of 30 days was provided under the Rajasthan Civil Services (Joining Time) Rules 1981. Since the respondent No. 4 failed to join R.P.S. the writ petition was ordered to be dismissed. 13. I have considered the rival submissions and scanned the material on record. 14. Before proceeding further it is necessary to refer amended rule 18(2) which reads thus:- "Rule 18(2): "If a person selected under sub-rule (1) above and appointed to an post/service concerned in accordance with the relevant service rules against the vacancies of a particular year for which the Combined Competitive Examination was conducted by the Commission in accordance with these rules does not join on the post offered to him or has resigned or expired in any subsequent year, in that event the said vacancies shall be treated as fresh vacancies." (Underlining is mine) The words "does not join on the post offered to him or" were inserted vide Notification No F.7(4) DOP/A-1I/83 dated July 31, 1991. 15. Mr. S.C. Bhandari, learned counsel vociferously canvassed that the petitioner is entitled to be appointed in the R.P.S. as per his second preference and being next in merit as per provisions of Rule 18(1) and Rules 25 and 26 of R.P.S. Rules w.e.f. March 7, 1994, he date on which he was appointed in Commercial Taxes Services against the vacancy of Shri G.P. Gupta. According to Mr. Bhandari learned counsel, Rule 18(2) came to be amended w.e.f. July 31, 1991 which has no application in respect of the specific particular posts is in R.P.S. i.e. of the year April 1, 1991 to March 31, 1992 as determined in advance under Rule 9 of R.P.S. Rules 1954 prior to April 1, 1991 and conveyed to R.P.S.C. prior to April 1, 1991 for the purpose of holding examinations for selection thereof. The amended section has been made effective from July 31, 1991 only and thus applicable for posts and examinations of next year i.e. April 1, 1992 to March 31, 1993 and not for post of April 1, 1991 to March 31, 1992 and has no effect on the petitioner's right and entitlement to the said vacancy of April 1, 1991. 16. Mr. 16. Mr. Bhandari next contended that as per Rule 10(4) and Rule 18 of Rules 1962 the selections and appointments were required to be made strictly in order of merit and as per preferences given by the candidate. The petitioner had not changed the option/preference at any time as such his second preference for R.P.S. was valid and operative and he was entitled to be appointed to the R.P.S. against the vacancy caused by G.P. Gupta. In support of his submissions Mr. Bhandari, placed reliance on the following authorities- A.V. Bhogeshwarudu v. Andhra Pradesh Public Service Commission and anr. (JT 1989 (4) SC 130) , Bhag Singh v. State of Punjab and others (1983 Lab. I.C. 415) : [1982(2) SLR 281 (Pb. & Hry.)] , Kumari Shilpi Ramdeo v. State of Rajasthan and others (S.B. Civil Writ Petition No. 2084/90 decided on August 21, 1990) , Kumari Anita v. State of Rajasthan and others (S.B. Civil Writ Petition No. 2214 of 1990 decided on May 20, 1991) , Kumari Shilpi Ramdeo v. State of Rajasthan and others DB. Civil Special Appeal No. 151/91 decided on July 3, 1991 and Mariyakutty v. Convener, Municipal Common Service and Director of Municipalities and Ors. (1975 (I) SLR 188) , The State of Mysore v. S.R. Jayaram, ( 1968 SLR 92) , Krishi Upaj Mandi Samiti Jodhpur etc. etc. v. State of Rajasthan and others ( 1982 RLR 762 ) , Sudarshan Singh and others v. The Government of India and others (1980 (3) SLR 199) , P. Sriramaiah v. P. Purushothama Rao and another (1974 (1) SLR 54), Shyamal Kumar Sarkar and others v. Union of India and others (1972 SLR 627) , R. Rajagopal Reddy and others v. Padmini Chandrasekharan (1995) 2 SCC 630 ) , P. Mahendran and others v. State of Karnataka and others ( AIR 1990 SC 405 ) : [1990(1) SLR 307 (SC)] and A.A. Calton v. The Director of Education and another (1983 All. L.J. 516) : [1983(1) SLR 785 (SC)] . 17. In order to appreciate the contentions of Mr. Bhandari, the learned counsel for the petitioner, I have closely scanned amended rule 18(2). As seen before the words "does not join on the post offered to him or" were inserted vide Notification dated July 31, 1991. L.J. 516) : [1983(1) SLR 785 (SC)] . 17. In order to appreciate the contentions of Mr. Bhandari, the learned counsel for the petitioner, I have closely scanned amended rule 18(2). As seen before the words "does not join on the post offered to him or" were inserted vide Notification dated July 31, 1991. A plain reading of this amended rule demonstrates that it has been made applicable only in that event when a person is selected and appointed to a post, but he does not join on the post offered to him. In this situation the said vacancy shall be treated as fresh vacancy. To my mind, in any such situations arose after July 31, 1991 where a person refuses to join on the post offered to him, Amended Rule 18(2) shah be applicable. G.P. Gupta was appointed vide order dated March 3, 1994 and he did not join on the post offered to him. Therefore the vacancy created against the post of G.P. Gupta shall be treated as fresh vacancy. It is difficult to agree with Mr. Bhandari, learned counsel that amended Rule 18(2) is not applicable in the instant case as the posts of R.P.S. were determined in advance under Rule 9 of R.P.S. Rules 1954 prior to April 1, 1991 and conveyed to R.P.S.C. prior to April 1, 1991. On a close scrutiny of Rule 18(2) it appears that vacancy may be of any year but if after July 31, 1991 it is not filled on the ground that the candidate does not join the post, the vacancy so created shall be treated as fresh vacancy. Therefore even if it is held that the second preference of the petitioner for the post of R.P.S. was valid and effective as per Rule 10(4), the petitioner is not entitled to be appointed to the R.P.S. against the vacancy created by G.P. Gupta as it was a fresh vacancy in terms of amended Rule 18(2). The ratio indicated in the authorities cited by Shri Bhandari is not applicable to the facts of this case in view of amended Rule 18(2). 18. Their Lordships of the Supreme Court in Thrissur District Cooperative Bank Limited v. Delson Davis P. & Ors. ( 2002 (2) SLR 410 indicated thus:- "2. On completion of the selection process, the respondent No.1 was included in the list as having secured second rank while one Mr. 18. Their Lordships of the Supreme Court in Thrissur District Cooperative Bank Limited v. Delson Davis P. & Ors. ( 2002 (2) SLR 410 indicated thus:- "2. On completion of the selection process, the respondent No.1 was included in the list as having secured second rank while one Mr. T.D. Rolly stood first Mr. Rolly joined the service and he was appointed as data entry officer. After some time he resigned from service as he got better placement in some other institution. The respondent No.1, it appears approached the bank and requested to appoint him in that vacancy. Though he was appointed temporarily, he was not given permanent employment. Under those circumstances, the respondent No. 1 approached the High Court for a direction that he should be appointed on permanent basis. The High Court examined the matter and found that when the previous incumbent, who had been selected had left the post and vacancy being available, the appropriate course was to have appointed the respondent No.1 and he had a right to be considered for the appointment. 3. We fail to understand the reasoning of the High Court in this regard. When once the section process is complete and appointment had been made, that process comes to an end and if any vacancy arises on the appointee having joined the post leaves the same, it must be treated as a fresh vacancy and fresh steps in accordance with the appropriate rules should be taken." 19. For the aforesaid reasons and in view of the ratio propounded in Delson Devis case (supra) I do not find any merit in the writ petition and the same is dismissed without any order as to costs.Petition dismissed. *******