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2005 DIGILAW 2445 (RAJ)

Nathu Ram v. State of Rajasthan

2005-09-14

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-The instant writ petition has been filed by the petitioner for seeking direction to respondent No. 3 to give appointment to the petitioner on the post of Senior Teacher (Biology) from the date of refusal of joining by Shri Navin Kumar with all consequential benefits. The petitioner has, in the alternative, prayed that any other order or direction which this Court considers just and proper in the facts and circumstances may be issued in favour of the petitioner. 2. For the aforesaid relief , the petitioner has set out the case that he is a science graduate with Masters degree in Chemistry and, therefore, he is eligible to be appointed to the post of Teacher (Grade-II) in biology subject. The petitioner has submitted that the recruitment to the post of Senior Teacher is governed by the provisions contained in Rajasthan Subordinate Services Rules, 1971 (to be called "the Rules" hereinafter). An advertisement was issued by respondent No. 3 on 30.03.2001 inviting applications for the posts of Senior Teacher and this advertisement was modified by notification dated 08.04.2001.In all, 95 posts of Senior Teacher in Biology of the backlog vacancies were notified to be filled in by direct recruitment out of which 38 posts were reserved for Scheduled Caste and 57 posts were reserved for Scheduled Tribe candidates. Being eligible for recruitment to the post of Senior Teacher (Biology) the petitioner applied. He was called for interview vide letter dated 30.05.2001 (Annexure-2). In pursuance of the recruitment process a merit list was prepared wherein the petitioners name finds place below Navin Kumar Mahecha in whose favour appointment order was issued on 011.2003. By that order, in all, 27 persons were provided appointment. Copy of the said order is placed on the record as Annexure-3. Vide Annexures-3, 3 persons were appointed to the posts of Senior Teacher (Biology) from amongst Scheduled Caste category whose names are appearing at S. Nos. 1, 2 and 3. By that order, in all, 27 persons were provided appointment. Copy of the said order is placed on the record as Annexure-3. Vide Annexures-3, 3 persons were appointed to the posts of Senior Teacher (Biology) from amongst Scheduled Caste category whose names are appearing at S. Nos. 1, 2 and 3. Shri Navin Kumar Mahecha in whose favour appointment order was issued on 011.2003 did not turn up for availing himself of the opportunity of joining service in pursuance of the appointment order because he was already in Government service; and, according to the petitioner, Navin Kumar filed an application on 27.01.2004 intimating respondent No. 3 that he is not joining the service on the post of Senior Teacher in Biology in pursuance of the appointment order. 3. The petitioner has staked claim that his name finds place in the merit list just below Navin Kumar Mahecha and, in the event of non-joining of service by Navin Kumar in pursuance of the appointment order, he is entitled to be appointed to the said vacant post being the next successful candidate on the merit-list but the respondent No. 3 did not offer appointment to the petitioner and, therefore, he sent notice for demand of justice dated 26.02.2004. Despite that the grievance of the petitioner has not been redressed by the respondents and he has been denied appointment without any justifiable reason. By filing the present writ petition the petitioner has challenged the impugned action of the respondents being violative of Articles 14 and 16 of the Constitution of India. 4. Rule 20 of the Rules envisages that the Commission or the Committee, as the case may be, shall prepare a list of the candidates whom they consider suitable for appointment and arrange in order of merit. The Commission or the Committee, as the case may be, shall forward the list to the Appointing Authority, Sub-rule (1) thereof postulates preparation of the reserve-list to the extent of 50% of the advertised vacancies out of which, on requisition, names may be recommended for appointment of such candidates in the order of merit within six months form the date on which the original list is forwarded by the Commission or the Committee to the Appointing Authority. Here, in the instant case. The respondents advertised 95 vacancies of the post of Senior Teacher out of which 38 were reserved for Scheduled Caste candidates. 5. Here, in the instant case. The respondents advertised 95 vacancies of the post of Senior Teacher out of which 38 were reserved for Scheduled Caste candidates. 5. In their reply, the respondents have not controverted the petitioners averments that petitioners name finds place at S. No. 46 of the final merit-list just below the name of Shri Navin Kumar Mahecha. The petitioner staked claim to appointment only after non-joining of service by Navin Kumar Mahecha in pursuance of the appointment order. The respondents themselves have admitted that Shri Navin Kumar Mahecha did not join the post as per the information received by them from the Head Master of the school where Navin Kumar Mahecha was to join duties and the petitioner also pressed his claim well within time in consonance with the stipulations of the provisions of Rule 20 of the Rules, in the circumstances, the respondents were under obligation to consider the petitioners claim and accord him appointment to the post which remained vacant due to non-joining of duties in pursuance of the appointment order by Navin Kumar Mahecha. The rule of preparation of merit-list and reserve-list incorporated in the relevant service rules is not for nothing. It has purpose and nexus with the object sought to be achieved. Where the appointments have been granted in pursuance of preparation of a merit-list in the order of merit, in the event of non-joining by the candidate appointed, at confluent right emanates in favour of the next candidate on the merit-list in that particular category within the period of subsistence of such list. Since, the respondents admit having been informed that Navin Kumar Mahecha has not joined, even if they themselves did not offer appointment to the petitioner who was next below Navin Kumar Mahecha, they were under legal obligation to consider the case of the petitioner for appointment. It is not the case of the respondents that the petitioner has staked a frivolous or vexatious claim for appointment. 6. Throughout, the petitioner has moved in the right direction with sufficient vigil and promptitude. The notice for demand of justice was made by the petitioner on 26.02.2004 and, having received no response from the respondents, the petitioner immediately filed the writ petition before this Court on 23.03.2004. The aforesaid appointment order was issued on 011.2003. 6. Throughout, the petitioner has moved in the right direction with sufficient vigil and promptitude. The notice for demand of justice was made by the petitioner on 26.02.2004 and, having received no response from the respondents, the petitioner immediately filed the writ petition before this Court on 23.03.2004. The aforesaid appointment order was issued on 011.2003. Thus, it cannot be said that the petitioner has allowed the time to pass by so as not to be entitled to the right of consideration within the compass of Rule 20 of the Rules. 7. It may be noted here that a backlog vacancy of a direct recruitment post generates only in the event of non-availability of eligible and suitable candidate. The event of non-availability of eligible and suitable candidate, if occurs, occurs on its own and cannot be allowed to be brought about. Denial of appointment from out of the merit-list and leaving the vacancy unfilled tantamounts to forging up the backlog. If the petitioner stands in merit just below the candidate appointed to the post, in the event of non-joining duties by such candidate appointed to the post, the petitioner has right to appointment to that post against the vacancy remaining unfilled due to non-joining of the candidate appointed to the post. Such denial within the time-frame postulated in Rule 20 of the Rules on the part of the respondents is arbitrary and in violation of Articles 14 and 16 of the Constitution of India. The object of Rule 20 also casts duty to discharge upon the respondents to act in the manner as would promote the object and satisfy the requirement of the statute. In the circumstances, therefore, it is not open to the respondents to ignore the claim of a person founded and approved by them on the basis of merit. In substance, in their reply, the respondents have not placed before the Court valid reasons to deny appointment to the petitioner. 8. I have also considered the Judgment s cited before me by both the Counsel. Learned Counsel for the petitioner has cited Judgment s in Dr. Uma Kan vs. Dr. Bhika Lal Jain & Ors., AIR 1991 SC 2272 , Virender S. Hooda & Ors. vs. State of Haryana & Anr., 1999 (3) SCC 696 , Brijendra Singh & Ors., vs. State & Ors., 2005 (3) RDD 397 (Raj) (DB). A.P. Aggarwal vs. Govt. Learned Counsel for the petitioner has cited Judgment s in Dr. Uma Kan vs. Dr. Bhika Lal Jain & Ors., AIR 1991 SC 2272 , Virender S. Hooda & Ors. vs. State of Haryana & Anr., 1999 (3) SCC 696 , Brijendra Singh & Ors., vs. State & Ors., 2005 (3) RDD 397 (Raj) (DB). A.P. Aggarwal vs. Govt. of N.C.T. of Delhi & Anr., JT 1999 (9) SC 125. Learned Counsel for the State, on the other hand, cited the Judgment in Bihar State Electricity Board vs. Suresh Prasad & Ors., 2004 (2) SCC 681 . 9. It may be noted here that the case of Bihar State Electricity Board vs. Suresh Prasad & Ors., 2004 (2) SCC 681 , forcefully relied upon by the learned Counsel for the State, is distinguishable for particular reason. In that case, the question before the Court was whether the employer was bound to consider case of a candidate not having position in the merit-list in the event of non-joining by a selected candidate. The circumstance was entirely different inasmuch as the agitating respondents in that case fell beyond the cut-off number. However, we find strength in the instant case by the observation of their Lordships of the Supreme Court in the aforesaid case that the State is under no legal duty to fill up all or any of the vacancies unless the relevant recruitment rules indicate. (Emphasis supplied). Here in the case on hand, the petitioner was on the merit list approved by the respondents lagging just behind Navin Kumar who did not join service pursuant to appointment order and Rule 20 of the Rules cast duty upon the Appointing Authority to fill up the post. In the case before the Supreme Court in 2004 (2) SCC 681 (Supra), the repellent circumstance was the absence of provisions of rule to offer posts to candidates in the waiting list. In the case on hand before this Court, the petitioner was neither beyond the cut-off number nor was placed in the waiting list to have a secondary claim. Moreover, in the present case the respondents claimed at filling up the back log vacancies in the reserved categories pursuant to Courts order. In the case on hand before this Court, the petitioner was neither beyond the cut-off number nor was placed in the waiting list to have a secondary claim. Moreover, in the present case the respondents claimed at filling up the back log vacancies in the reserved categories pursuant to Courts order. In these circumstances, the petitioner in the present writ petition has a legitimately founded case in his favour unlike the respondents No. 1 to 7 in the case of Bihar State Electricity Board (Supra), before the Supreme Court. 10. As a result of the foregoing discussion, the writ petition is allowed. The respondents are directed to appoint the petitioner to the post of Senior Teacher (Biology) forthwith against the vacancy which remained unfilled due to non-joining of the service by the said Shri Navin Kumar Mahecha, in case, the petitioner stands just below said Shri Navin Kumar Mahecha in the merit list. The petitioner shall be entitled to notional benefit of service with effect from 211.2003. 11. There shall, however, be no order as to costs.