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2004 DIGILAW 855 (RAJ)

Dr. Daya Ram Swami v. State of Rajasthan

2004-05-27

RAJESH BALIA

body2004
JUDGMENT 1. - Heard learned counsel for the parties. 2. This petition is filed to seek a writ in the nature of quo-warrants to oust respondent No. 3, Mr. 1.D. Gupta, who is allegedly holding the post of Assistant Professor in Psychiatry illegally and notwithstanding having not s been selected and not being agreed to by the RPSC for being continued on adhoc basis, has been allowed to continue to mar the deputation post in Social Welfare Department: When the petition was filed, the petitioner has also sought a mandamus that he was at Sr. No. 2 in the reserve list prepared by respondent No. 2, Rajasthan Public Service Commission. In pursuance of to selection that took place on the basis of post advertised in the Advertisement dated 30th October, 1990 and re-advertised by Advertisement dated 22.8.91, four persons were listed in the main select list. The post for which the advertisement has been issued, two persons were placed in reserve list that is to say 50% of the select list. All the four persons, who were in the main is select list, where given appointment vide order dated 14.5_92 (Annexure 4). Subsequent thereto, by order dated 29.5.92 (Annexure 9) Dr. Alok Kumar Tyagi, who was No. 1 in the reserve list, was also given appointment. However, the reserve list was not operated thereafter, though there still remained one vacancy. The petitioner was not offered such appointment. Thus, the mandamus is sought to operate the reserve list against the available vacancy, which according to the petitioner, was illegally occupied by respondent No. 3. 3. The other facts, which have come on record, are that subsequent to filing of the writ petition in the year 1993, temporary services of said respondent No. 3 ID, Gupta were brought to an end. This virtually puts an end to relief of quo-warranto for removing Mr. 1.D. Gupta from office. 4. It appears from the record that subsequent thereto, selection took place in 1994 in which the petitioner also participated. Pursuant to said selection, I.D. Gupta and other persons were selected and given appointment while the petitioner was not selected in the subsequent selection of 1994. The appointments in pursuance of selection were offered vide order dated 29.12.94 to four persons, who were regularly selected and subsequent thereto, two more persons were appointed vide order dated 3.7.95. Pursuant to said selection, I.D. Gupta and other persons were selected and given appointment while the petitioner was not selected in the subsequent selection of 1994. The appointments in pursuance of selection were offered vide order dated 29.12.94 to four persons, who were regularly selected and subsequent thereto, two more persons were appointed vide order dated 3.7.95. On their being selected by the RPSC, these facts were brought on record by the petitioner while making the second stay petition. 5. At the time of entertaining the writ petition. an interim order was made on 30th July, 1992 that right of the petitioner as on the date of filing of the writ petition shall remain intact and shall not be affected by the fact that six months have elapsed from the date on which the RPSC had sent the list to the State Govt. Subsequent thereto, the second stay petition was filed in which by way of interim order, it was prayed that the Rajasthan Public Service Commission be directed to forward the name of the petitioner to respondent State for appointment as Lecturer in Psychiatry and the Government in turn be directed to appoint the petitioner as Lecturer in Psychiatry at least on adhoc basis till disposal of the petition. This second stay petition was dismissed by order dated 14.8.95. 6. In the aforesaid circumstances, the question arises whether the petitioner on the basis of hit name being included in the reserve list, can so seek a mandamus directing the respondent No. 1 to requisition the name from the reserve list for being offered regular appointment. 7. Learned counsel for the petitioner has urged that in terms of Annexure- 10, dated 3rd March, 1993, which emanated from the Social Welfare Department, Rajasthan, Jaipur the post of Counsellor was created in the Social Welfare Department, which was designed to be continued for a considerable period and it was also designed to be filled on deputation from s Medical and Health Department. The communication further shows that the Counsellor's post under Social Welfare Department is equivalent to the post of Assistant Professor in Medical College. The communication further shows that the Counsellor's post under Social Welfare Department is equivalent to the post of Assistant Professor in Medical College. On this premise, it was contended by the learned counsel that as one officer of the Medical and Health Department was supposed to remain on deputation for long period, one post to remains vacant on account of officer being on deputation outside the department and it has to be counted as an existing vacancy, while determining the year-wise vacancy for being filled in accordance with the Recruitment Rules applicable to Rajasthan Medical Services (Collegiate Branch) Rules, 1952. Against such regular vacancy for the period in question, the petitioner's case ought to have been considered as he was duly selected by RPSC and placed in the reserve list. 8. The principle appears to be well settled that while finding place in a regular select list gives a right to be considered if the State decides to offer employment in order of merit, but mere finding a place in select list does not give indefeasible right to be appointed on a post, if the Appointing Authority does not decide to fill that post for the time being. The rider is that if the select list is operated, merit list cannot be by-passed to offer appointment to I person lower in merit prior to a person who finds place in higher place in order of merit except for justifiable reason. 9. However, no such right vests in a person whose name finds place in the reserve list that he should necessarily be considered for giving appointment if after exhausting the select list any vacancy exists or arises. However, if the Appointing Authority is desirous to fill such vacancy by operating the select list, it must go by order of merit. However, no mandamus so can be sought to operate the reserve list as a matter or right. 10. In the present case, it is not in dispute that the Appointing Authority has decided to offer appointment to all those persons whose names find place in the main select list and thereafter operated from reserve list qua the first in order of merit. The Appointing Authority has not thought it appropriate to offer appointment to second in the seniority list to fill the vacancy which was already occupied on account of one person remaining outside on deputation. The Appointing Authority has not thought it appropriate to offer appointment to second in the seniority list to fill the vacancy which was already occupied on account of one person remaining outside on deputation. If a person has wrongly been recruited and appointed, a relief for ouster can be sought, but a relief for substitution cannot necessarily be sought. 11. In the present case. one Mr. I.D. Gupta, who was appointed on urgent temporary basis, his services had not been terminated after he was not selected, but he was allowed on deputation where he has served continuously. His continuance could not be justified, but since his services have been brought to an end, as noticed above, the further pursuit of this contention is not required to be made. 12. Learned counsel for the petitioner has relied on a recent decision of Supreme Court in Purushottam v. Chairman, M.S.E.B. & Another, (1999) 6 SCC 49 wherein it was held that duly selected candidate could not be denied appointment or the pretext that panel's term had expired and post had been filled up by someone else. Since the State Govt. has not called soon the RPSC to send the name from the reserve list for being offered appointment and the six months period, which is life of the reserve list has expired, the RPSC has now no authority to send the name from the reserve. list to the State Govt. 13. In view of the facts narrated above, this issue is not germane inasmuch as the petitioner has come before this Court before expiry of reserve list and interim order was passed in his favour during the pendency of the petition. The expiry of life of reserve list could not come in the way for considering his case on merit, if he has such right to seek mandamus. However, from the perusal of decision of Purushottam's case (supra), it appears that it has no relevance to the facts of the present case. 14. It was a case in which the appellant before the Supreme Court had been duly selected for the post of Assistant Personnel Officer meant for a Scheduled Tribe category. However, from the perusal of decision of Purushottam's case (supra), it appears that it has no relevance to the facts of the present case. 14. It was a case in which the appellant before the Supreme Court had been duly selected for the post of Assistant Personnel Officer meant for a Scheduled Tribe category. He had produced the certificate of the Magistrate indicating that he belongs to 'Halba' caste belonging to Scheduled Tribe, but the employer referred his case to the Caste Scrutiny Committee for verification, which opined that the appellant did not belong to Halba caste and considering the said fact, the appointment was refused to him against the post reserved in the Scheduled Tribe, notwithstanding he was regularly selected. The High Court in writ petition came to the conclusion that the appellant does belong to Halba caste arid therefore, he was kept illegally out of employment. When the appellant approached tho Electricity Board to offer him appointment, he was denied the appointment on the ground that meantime somebody else has been appointed and the panel of selected persons has expired. The matter again reached the Bombay High Court and the Bombay High Court accepted the plea of the Board and dismissed the petition by refusing to issue its own order by mandamus on the ground that the select list in which the petitioner's name found place had expired. 15. It is in the aforesaid background when the matter came before the Supreme Court, the Court said that question that arises for consideration is whether a duly selected person for being appointed and illegally kept out of employment on account of untenable decision on the part of the employer, can he be denied the said appointment on the ground that the panel has expired in the meantime. The question was answered in negative. It was a clear case in which there was no question of not operating select list at the instance of the employer, but refusing to give appointment on the ground which was not found to be tenable by the High Court inasmuch as the petitioner who has participated as candidate of Scheduled Tribe was denied appointment in spite of selection on the ground that he was not considered to be a member of Scheduled Tribe and not eligible to be appointed. Once that was found to be in favour of the petitioner, the necessary consequence follows. Once that was found to be in favour of the petitioner, the necessary consequence follows. The employer having kept him outside the sphere to offer appointment to the selected candidate wrongly. 16. In the present case, at no point of time the State Govt. has decided to offer appointment to any person out of the remaining panel of the reserve list. The State Govt. may not have justified in continuing with a person on adhoc appointment, but it is far from saying that after terminating the services of adhoc appointee it was imperative for the State to have operated reserve list to give appointment to the petitioner. 17. In that view of the matter, I am of the opinion that no mandamus can be issued at this stage to the State Govt. to call for the name of the petitioner from reserve list. 18. The petition is, accordingly, dismissed.Writ Petition Dismissed. *******