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2014 DIGILAW 784 (RAJ)

Gokul Chand Sharma v. State of Rajasthan

2014-03-26

MOHAMMAD RAFIQ

body2014
Hon'ble RAFIQ, J.—This writ petition has been preferred by Gokul Chand Sharma with prayer that part of Rule 22 of the Rajasthan Prosecution Subordinate Service Rules, 1978, which prescribes six months from the date on which original list is forwarded by the Rajasthan Public Service Commission to the Appointing Authority as the life of reserve list, be declared arbitrary and ultra vires of the Constitution and the respondent RPSC be directed to forward the name of petitioner and respondent no.1 State be directed to appoint the petitioner on the post of Assistant Public Prosecutor Gr.II, pursuant to his selection held on the basis of advertisement dated 03.04.1997. 2. At the outset, Shri Ashok Gaur, learned senior counsel, does not press the first prayer clause where validity of rule 22 of the Rules of 1978 has been challenged and he confines his argument to the second prayer. 3. Learned senior counsel argued that the respondent RPSC conducted screening test for shortlisting of the candidates and called for interview only those, who could qualify the screening test. The petitioner too was called for interview after qualifying the screening test and he was found suitable. He was informed by the RPSC vide communication dated 05.09.1998 that he is found suitable and his name is placed at serial no.1 in the reserve list. Thus 72 candidates who were placed in the main select list were appointed by the Government vide orders dated 28.01.1999, 10.02.1999 and 10.05.1999. One Manoj Kumar Sharma, who was appointed vide order dated 10.05.1999 sought extension for joining and initially the Government allowed him extension but despite extended time for joining up to 31.08.1999, finally he did not turn up to join and his appointment has been cancelled by the Government. Thus out of 72 posts, one post was still lying vacant. The petitioner is not aware if certain other posts remained vacant due to non-joining of the candidates or if any candidate left out after joining despite appointment in any of three orders. Despite the extended time up to 31.08.1999, Manoj Kumar Sharma did not join. Petitioner submitted representation to the respondents on 07.09.1999 requesting that he being at serial no.1 in the reserve list, should be appointed on the post of APP Gr.II. Despite the extended time up to 31.08.1999, Manoj Kumar Sharma did not join. Petitioner submitted representation to the respondents on 07.09.1999 requesting that he being at serial no.1 in the reserve list, should be appointed on the post of APP Gr.II. Learned senior counsel submits that as per proviso to Rule 22 of the Rules of 1978, the RPSC may, on requisition, recommend the names of such candidatures in the order of merit to the Appointing Authority within six months from the date on which the original list was forwarded by the Commission to the Appointing Authority from the reserve list. The action of the respondents in not requisitioning the name from the reserve list for appointment on the vacant post, be declared illegal and mandamus be issued for granting appointment to the petitioner. 4. Learned senior counsel argued that there is no conscious decision of the Government to keep vacant one post of APP Gr.II, and therefore directions should be issued to the respondents to make appointment of the petitioner. 5. In support of his arguments, learned counsel for petitioner has relied on judgments of the Supreme Court in Sheo Shyam and Others vs. State of U.P. and Others – (2005) 10 SCC 314, All India SC & ST Employees Association and Another vs. A. Arthur Jeen and Others – (2001) 6 SCC 380 , State of U.P. vs. Ram Sawrup Saroj – (2000) 3 SCC 699 , Purushottam vs. Chairman, M.S.E.B. and Another – (1999) 6 SCC 49 , Jai Narain Ram vs. State of UP and Others – (1996) 1 SCC 332 , Asha Kaul (Mrs. And Another vs. State of Jammu and Kashmir and Others – (1993) 2 SCC 573 , and that of this court in Ghanshyam Singh Rathore vs. The State of Rajasthan and Another – 2010 (2) WLC 443, Brijendra Singh and Others vs. State and Others – 2005 (3) RDD 397 (Raj.) (DB), Moola Ram vs. State of Rajasthan and Others – RLW 2006 (1) RJ. 492. 6. Learned counsel for the respondent State and the RPSC opposed the writ petition and submitted that the life of the reserve list is only six months from the date the original list was forwarded by the Commission to the State. The main list of 72 candidates was forwarded by the RPSC to the Appointing Authority on 31.08.1998. 492. 6. Learned counsel for the respondent State and the RPSC opposed the writ petition and submitted that the life of the reserve list is only six months from the date the original list was forwarded by the Commission to the State. The main list of 72 candidates was forwarded by the RPSC to the Appointing Authority on 31.08.1998. The period of six months expired on 28.02.1999 and thereafter there did not exist any reserve list. Admittedly, the last appointment order was issued to one Manoj Kumar Sharma on 10.05.1999, upon which he submitted the application within the prescribed joining time on 02.06.1999 for extension of time to join. His joining time was extended upto 31.08.1999. At that stage, he again submitted an application on 30.08.1999 for further extension. The department finally granted him time to join up to 11.10.1999 and therefore when he did not join, his appointment was cancelled on 18.02.2000. As per the directions mentioned in Circular dated 25.08.1998, which was issued by the Department of Personnel under Rule 22 of the Rules of 1978, the reserve list can be requisitioned within six months from the date of issue of reserve list as per the Circular dated 25.08.1998 the requisition of reserve list from the RPSC can be made only when the candidate selected in main list has expressed his inability to join the service and the vacancy in the department is available. The Appointing Authority could not therefore requisition the reserve list after 28.02.1999. Learned counsel in support of his argument has relied on the judgment of the Supreme Court in Bihar State Electricity Board vs. Suresh Prasad and Others – 2004 (2) SCC 681 . 7. In order to appreciate the controversy, it would be instructive to reproduce Rule 22 along-with its proviso, “Rule 22 Recommendation of the Commission – The Commission shall prepare a list of the candidates whom they consider suitable for appointment to the posts concerned, arrange in the order of merit. The Commission shall forward the list to the Appointing Authority: Provided that the Commission may, to the extent of 50% of the advertised vacancies, keep names of suitable candidates on the reserve list. The Commission shall forward the list to the Appointing Authority: Provided that the Commission may, to the extent of 50% of the advertised vacancies, keep names of suitable candidates on the reserve list. The Commission may, on requisition, recommend the names of such candidates in the order of merit to the Appointing Authority within six months from the date on which the original list is forwarded by the Commission to the Appointing Authority.” 8. Admittedly, in the present case the select list was forwarded by the Commission to the Appointing Authority on 31.08.1998 and six months counting there-from would expire on 28.02.1999. The respondents are therefore justified in contending that the life of the select list expired on that date. Contention that there was no conscious decision to operate the reserve list not to fill up one post of APP Gr.II and therefore the appointing authority be directed to requisition the name of the petitioner from the reserve list with further direction to appoint him, cannot be appreciated. The cited judgment of this court in Ghanshyam Singh Rathore, supra, arose out of different facts situation altogether. The judgment of the Supreme Court in Sheo Shyam and Others also is distinguishable as in that case there was no statutory rule governing the field. Besides, in between, the appointment orders passed of the batch was stayed by the High Court which stay order remained operative for about seven months. The Division Bench judgment of this court in Brijendra Singh also arose out of the facts in which life of the waiting list was interrupted by the interim order, and the select list was to remain operative till 31.03.1998. The government in between imposed ban on appointment by order dated 27.01.1998 which was lifted on 24.02.1998 to make appointments of teachers in rural areas up to 31.05.1998. Some of the appointed candidates did not join. If the select list was operated immediately, the persons in the waiting list would have secured appointment. That number could have been reached by appointing persons immediately below in the select list. The Division Bench found that as per the interpretation of Rule 22 of the Rules of 1962, which is analogous to Rule 22 in the present case, the appointment of the petitioner would be permissible in view of proviso to Rule 22. 9. That number could have been reached by appointing persons immediately below in the select list. The Division Bench found that as per the interpretation of Rule 22 of the Rules of 1962, which is analogous to Rule 22 in the present case, the appointment of the petitioner would be permissible in view of proviso to Rule 22. 9. In Moola Ram, supra, also post had become available within validity period of reserve-list after the Appointing Authority originally appointed 15 candidates of general category and the petitioner, who was at serial no.16 in general category. One of the candidates was found guilty of misconduct by producing forged certificates in support of his candidature and thus rendered himself ineligible to be appointed. In that case too, the select list was to expire on 31.03.1998 however during currency of period the Government imposed ban on fresh recruitment on 27.01.1998 and therefore issued a circular on 24.08.1998 followed by letter of Director Secondary Education dated 05.03.1998 for granting relaxation from the ban for making fresh recruitment in the rural areas to 31.05.1998. It was held that the desire of the paramount State Government for offering appointment from amongst selected candidates in the order of merit until 31.05.1998 is also manifest, which by necessary implications means that the State Government has not decided to keep the rural vacancies unfilled if the selected candidates are available. Such are not the facts of the present case. The other cited judgments are also distinguishable on facts. 10. In Bihar State Electricity Board vs. Suresh Prasad and Others, supra, it was held by the Supreme Court that even if a selected candidate does not joint in the absence of statutory rules to the contrary, the employer is not bound to fill up the vacancy from the candidate next below in the select list. Considering the question of right of waiting list candidate, it was held by the Supreme Court that in the absence of statutory rules to the contrary, the employer is not bound to prepare a waiting list in addition to the panel and to appoint the candidates from the waiting list in case the candidate on the panel do not join. 11. 11. In fact, none of the judgments, which have been cited on behalf of the petitioner, arose out of the facts where the appointment was ordered to be given to the wait listed candidate and non-joining of the candidate appointed from the main list after expiry of validity of the period of reserve list. In the present case, the last candidate Manoj Kumar Sharma, in whose vacancy the petitioner is claiming appointment, was himself offered appointment much after expiry of the period of six months, whereafter the waiting list ceased to be alive. The waiting list ceased to be alive on 28.02.1999 and his appointment order was issued on 10.05.1999 i.e. two-and-half month thereafter. 12. I therefore do not find any merit in this writ petition. It is accordingly dismissed.