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2006 DIGILAW 692 (RAJ)

Suwalal v. State of Rajasthan

2006-02-28

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-At joint request and with consent of the parties, this petition is heard finally and decided at admission stage. 2. By instant petition, petitioner is seeking direction for consideration of his candidature for appointment to the post of Class IV on the basis of his selection pursuant to advertisement (Annexure-1). 3. Petitioner was appointed on ad hoc basis as Class IV vide order dated 22.03.2001 in Alwar Judgeship. While he was holding the post, advertisement dated 29.08.2002 (Annexure-1) was issued for holding regular selection against 19 vacancies and petitioner being one of eligible candidate was called upon to appear in written test, which he qualified and selected by respondents and as per select list his name finds place at S. No. 29 and first 27 candidates named in select list dated 210.2003 (Annexure-3) as per order of merit were appointed as Class IV on 210.2003. During life of select list of six months from the date of declaration and forwarding of list by committee to the authority, which in instant case is 210.2003, one Lehrilal, Class IV, died in January, 2004 against whom Lakhilal, whose name finds place at S. No. 28 was appointed vide order dated 24.03.2004. Two other vacancies further occurred due to retirement of M.P. Sharma on attaining age of superannuation on 28.02.2004 and on account of sad demise of Radhey Shyam Sain on 11.03.2004. Against one vacancy, ibid, it was filled by transfer of one Class IV from Baran Judgeship and so far as other vacancy fallen due to death of Radheyshyam Sain remained vacant and his son was given appointment under Compassionate Rules on the post of LDC vide order dated 03.07.2004 and at this stage, petitioner filed instant petition and under interim order of this Court dated 02.04.2004, the post has been kept vacant; and the petitioner is the next in the select list (Annexure-3) for seeking appointment on the post of Class IV. 4. Counsel for petitioner contends that initially 19 vacancies were advertised and under proviso to Rule 24 of Rajasthan Class IV Service (Recruitment and other Service Conditions) Rules, 1999 (“Rules, 1999”) which reads as under:- “Provided that the committee may, to the extent of 50% of the advertised vacancies, keeps names of suitable candidates on the reserve list. 4. Counsel for petitioner contends that initially 19 vacancies were advertised and under proviso to Rule 24 of Rajasthan Class IV Service (Recruitment and other Service Conditions) Rules, 1999 (“Rules, 1999”) which reads as under:- “Provided that the committee may, to the extent of 50% of the advertised vacancies, keeps 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 appointing authority within six months from the date on which the original list if forwarded by the Committee.” 50% of advertised vacancies, names can be kept in reserve list and against 19 vacancies advertised in instant case, 50% comes to 9 and half and as per Judgment of Apex Court in State of U.P. vs. Pawan Kumar Tiwari, 2005 (2) SCC 10 , it should be rounded of to 10; as such name of petitioner also finds figured at S. No. 29, his candidature was not considered by respondent while others were appointed and more so when Lakhilal just above him at S.No. 28 has been appointed against vacancy occurred in January 2004, there is no justification for respondents to deny him appointment. Counsel further submits that no doubt mere selection does not confer right but there should be a reasonable justification for respondents not to fill up vacancy which occurred during six months time when reserve list is still operative and particularly when list has been acted upon by giving appointment to Lakhilal who is at S.No. 28 in select list. In support of his contention, Counsel placed reliance on the decisions of Apex Court in Virendra S. Hooda vs. State of Haryana, 1999 (3) SCC 696 , R.S. Mittal vs. Union of India, 1995 Supp. (2) SCC 230. 5. Respondents have filed reply to writ petition wherein facts asserted by petitioner have not been disputed but inter-alia averred that post which fell vacant due to death of Radheyshyam Sain on 11.03.2004 had to be kept vacant atleast for 45 days-as a consequence whereof , by that time, reserve list stood expired; as such petitioner could not be appointed against that vacancy. It has also been averred that no one can claim appointment as a matter of right particularly in the present facts when no person lower in merit has been considered by respondents; as such right of petitioner in any manner has not been infringed. 6. I have considered the submissions and examined material on record. This fact remains undisputed that name of petitioner finds place at S.No. 29 in the select list (Annexure-3) and upto 28 appointments were made - 27 persons vide order dated 210.2003 and one Lakhilal whose name was at S.No. 28 vide order dated 04.03.2004 against vacancy fallen due to death of Lahrilal; whereas against vacancy fallen due to death of Radheyshyam Sain no one was appointed and while his son was appointed as LDC vide order dated 03.07.2004 (Annexure-8) under Compassionate Rules. That apart, indisputably, select list of 38 incumbents (Annexure-3) dated 210.2003 was forwarded by Committee to respondents against advertisement (Annexure-1) and life of this list was six months which according to Rule 24, ibid, expired on 27.04.2004, and much before expiry of this list, one vacancy had fallen due to death of Radheyshyam Sain, against which right of petitioner has accrued for consideration being at S. No. 29 in select list and instant petition was also filed before expiry of select list. 7. As regards submission made by Counsel against advertised vacancies, upto 50% whereof names can be placed in reserve list and if vacancy comes to in decimal, then it should be round off to next higher number, which has been considered by Apex Court in State of U.P. vs. Pawan Tewari (Supra), in Para 7 which reads as under:- “7..... The rule of rounding off based on logic and common sense is : if part is one half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded of to 47 and not to 46 as has been done. The rule of rounding off based on logic and common sense is : if part is one half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded of to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment.” Emphasis added In view of what has been observed, ibid, certainly in instant case, against 19 advertised vacancies, reserved list can be of 10 incumbents besides 19 advertised vacancies; and as per Rule 24 of Rules, 1999, list of 29 selected incumbents (including 19 advertised) can be operative for 6 months from the date of its publication and which as per list dated 210.2003 (Annexure-3) remained alive upto 27.04.2004. In Shankarsan Dash vs. Union of India, AIR 1991 SC 1612 Apex Court observed that mere selection does not confer any right to the post but that does not give a license to the State to act in an arbitrary manner. Relevant observations in Para 7 read as under:-“.........However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test and no discrimination can be permitted.” (Emphasis added) In R.S. Mittal vs. Union of India, (Supra), Apex Court also observed-“Although a person on the select panel has no vested right to be appointed to the post for which he has been selected, the appointing authority cannot ignore the select panel or on its whims decline to make the appointment. When a person has been selected by the selection board and there is a vacancy, which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment.” (Emphasis added) In Virendra S. Hooda vs. State of Hariana (Supra), Apex Court also held:-“..... When a person has been selected by the selection board and there is a vacancy, which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment.” (Emphasis added) In Virendra S. Hooda vs. State of Hariana (Supra), Apex Court also held:-“..... It is also made clear that if the Commission makes recommendations regarding a post to the department and additional vacancies occur in the department within a period of six months on receipt of recommendations then the vacancies which occur later on can be filled in from amongst additional candidates recommended by the Commission ....” [3 Para ]“...... The case of the appellants ought to have been considered when some of the vacancies arose by reason of non-appointment of some of candidates recommended by the Commission. Government ought to have considered the appellants case as per rank obtained by them and appointed them if they came within the range of selection. Thus, when the vacancies arose within six months from the date of previous selection, Circulars dated 22.03.1957 and 26.05.1972 declaring the policy of the Government are attracted and hence the view of the High Court that vacancies arose after selection process commenced has no relevance and is contrary to the declared policy of the Government in the manner to fill up such posts from the waiting list.” () (3 Para Emphasis added) 8. It is true that mere selection does not confer any right but at this stage it cannot be ruled out that besides 19 advertised vacancies, incumbents out of select list dated 210.2003 (Annexure-3) upto S.No. 28 have been considered for appointment, in view of the Rule 24 of the Rules, 1999 and Lakhilal whose name finds place at S. No. 28 was appointed vide order dated 24.03.2004 against vacancy fallen due to death of Lahrilal. 9. In my opinion, in the absence of a reasonable justification come forward by respondent, legitimate right of petitioner for seeking appointment after being placed in select list (Annexure-3) cannot be divested by respondents. 10. Consequently, this writ petition is allowed. Respondents are directed to appoint the petitioner on the post of Class IV on the basis of selection made by Committee pursuant to advertisement (Annexure-1) dated 29.08.2002. Compliance be made within one month. No cost. Stay Petition No. 1690/2004 also stands disposed of .