JUDGMENT 1. - Heard learned counsel for the parties. 2. Instant writ petition has been filed by the petitioner seeking following reliefs:- "It is therefore, most respectfully and humbly prayed that during the pendency of the writ petition, unfilled one vacant post of Senior Demonstrator in forensic medicine in pursuance of the advertisement no. 4/98-99 dated 16.02.1999 (Annex. 3) and select list dt 02.06.2000 (Annex.4) may kindly be kept vacant to protect the right of the petitioner." 3. As per facts of the case, petitioner being eligible for appointment on the post of Sr. Demonstrator in Forensic Medicine applied in pursuance of advertisement dated 16.02.1999 issued by respondent Rajasthan Public Service Commission (for short 'RPSC' hereinafter) whereby eight posts of Sr. Demonstrator in the subject of Forensic Medicine were advertised. 4. In the advertisement No. 4/98-99 issued on 16.02.1999, reservation was also provided as per rules for recruitment on the post in question, more specifically one post was kept reserved for Scheduled Caste candidate and one for Scheduled Tribe candidate and two posts were kept reserved for backward class candidates and remaining four posts were advertised for General category candidates. Petitioner being eligible candidate was called for interview by the Rajasthan Public Service Commission and after facing interview, the Commissioner published list of selected candidates in order of merit and names were recommended to the Government as per merit vide letter dated 02.06.2000 which is placed on record as Annex.4. The name of petitioner was included in the reserve list at Serial No. 2 in the General category candidate. It is stated in the writ petition that one selected candidate Dr. Mahesh Khadgawat whose name was at Serial No. 3 in the main list passed away and one another candidate Dr. Neelam Agarwal whose name was at Serial No. 5 of the main list did not join on the post of Sr. Demonstrator in Forensic medicine, therefore, two posts remained unfilled from select list recommended for appointment by the Commission to the Government. 5. The State Government sent a requisition to the respondent Commissioner for sending names from the waiting list, therefore, name of Dr. Rahul Jain who was at Serial No. 1 of waiting list was recommended by the Commission and he was given appointment against unfilled vacancy for which the name of Dr. Mahesh Khadgawat was recommended for appointment because he died before issuance of appointment order. 6. Rahul Jain who was at Serial No. 1 of waiting list was recommended by the Commission and he was given appointment against unfilled vacancy for which the name of Dr. Mahesh Khadgawat was recommended for appointment because he died before issuance of appointment order. 6. A representation was filed by the petitioner before the respondent Commission with the prayer that his name may also be recommended to the State Government because due to non-joining of another candidate Dr. Neelam Agarwal, vacancy is available but he was verbally told that Commission has sent a fax message to the State Government for sending the roster and after receiving the roster, his name will be considered. 7. As per facts, respondent No. 1 Department of Medical and Health Services sent requisition to the Commission vide letter dated 07.12.2000 for recommending three names from the waiting list to fill up the available vacant posts of Sr. Demonstrator but despite sending the requisition by the Government, names were not recommended by the respondent Commission, thereafter, the petitioner gave a registered notice to the respondents to recommend his name for appointment but no reply was given to the petitioner. 8. Learned counsel for the petitioner submits that as per Rule 20 of the Rajasthan Medical (Collegiate Branch) Rules, 1962, there is provision to prepare a waiting list to the extent of 50% of the advertised vacancies and to keep the name of suitable candidates in the reserve list to send names upon requisition received by the Government for six months from the date on which the original list is forwarded by the Commission. Learned counsel for the petitioner submits that admittedly out of eight candidates recommended by the RPSC, two vacancies remained unfilled because Dr. Mahesh Khadgawat died prior to issuance of appointment order and Dr. Neelam Agarwal did not join the duties, therefore, obviously, a right was created in favour of the petitioner for appointment against unfilled vacancies because his name find place at Serial No. 2 in the waiting list which is prepared in accordance with Rule 20 of the Rules. Mahesh Khadgawat died prior to issuance of appointment order and Dr. Neelam Agarwal did not join the duties, therefore, obviously, a right was created in favour of the petitioner for appointment against unfilled vacancies because his name find place at Serial No. 2 in the waiting list which is prepared in accordance with Rule 20 of the Rules. Learned counsel for the petitioner submits that due to arbitrary action of the RPSC, name of petitioner was not recommended inspite of the fact that requisition was sent by the Government, therefore, it is a case in which right of appointment of petitioner is curtailed by the RPSC because inspite of availability of vacancy his name was not recommended to the Government for appointment against the unfilled vacancy of Sr. Demonstrator. On the basis of above argument, it is prayed that instant writ petition may kindly be allowed and RPSC may be directed to recommend the name of petitioner for appointment against the post which remained unfilled due to non-joining by Dr. Neelam Agarwal and State Government may kindly be directed to provide appointment with all consequential benefits. 9. In reply filed by the RPSC, it is admitted that petitioner's name was included at Serial No. 2 in the reserve list but State Government sent a requisition to the Commission vide communication dated 17.11.2000 to recommend one name from the reserve list for appointment as one candidate Dr. Mahesh Khadgawat expired even before appointment order was issued in his favour and in pursuance of said requisition, name of Dr. Rahul Jain who was at Serial No. 1 in waiting list was recommended to the Government, however, another communication was sent by the State Government on 07.12.2000 but the same was received in the office of Commission on 08.12.2000, therefore, the name of petitioner was not recommended for the reason that the currency of waiting list expired on 07.12.2000 as original recommendations were made by the Commission to the State Government on 08.06.2000, the validity of reserve list expired on completion of six months on 07.12.2000, therefore, the petitioner cannot claim appointment as a matter of right. Learned counsel for the respondents argued that the joining period of selected candidate Dr. Neelam Agarwal was extended upto 25.12.2000, therefore, no vacancy was available as on 07.12.2000, as such, necessary clarification was sought by the Commissioner from the State Government vide communication dated 12.12.2000. 10. Learned counsel for the respondents argued that the joining period of selected candidate Dr. Neelam Agarwal was extended upto 25.12.2000, therefore, no vacancy was available as on 07.12.2000, as such, necessary clarification was sought by the Commissioner from the State Government vide communication dated 12.12.2000. 10. Learned counsel for the respondent RPSC further invited attention of this Court that in response to the letter dated 12.12.2000 for seeking clarification, the State Government informed the respondent Commission vide communication dated 08.03.2001 that a decision has been taken not to requisition the names of candidates from reserve list and vacancies shall be filled up by direct recruitment and requisition to this effect will be sent to the Commission separately. 11. The crux of argument of learned counsel for the respondents is that currency of list was expired on 07.12.2000 and requisition was received on 08.12.2000 by the RPSC, therefore, name of petitioner was not recommended for appointment against the post which remained unfilled due to non-joining of Dr. Neelam Agarwal whose term of joining was extended upto 25.12.2000. Learned counsel for the respondents submits that there is no right created in favour of the petitioner to get appointment, therefore, this writ petition may be dismissed. 12. After hearing learned counsel for the parties, it emerges from the fact that respondents are not disputing the fact that name of petitioner was included at Serial No. 2 in the waiting list. The respondents are also not disputing the fact that out of eight candidates recommended by the RPSC, two vacancies remained unfilled, one due to death of Dr. Mahesh Khadgawat and second post remained unfilled due to non-joining of Dr. Neelam Agarwal. The RPSC accepted in the reply that name of candidate Rahul Jain who was at Serial No. 1 in the waiting list was recommended as per requisition received from the Government for appointment against the post which remained unfilled due to death of Dr. Mahesh Khadgawat but the second communication was received in the office of RPSC on 08.12.2000 before that on 07.12.2000, the currency of waiting list expired because list of selected candidates were recommended by the RPSC on 08.06.2000 and the validity of reserve list expired on 07.12.2000. Mahesh Khadgawat but the second communication was received in the office of RPSC on 08.12.2000 before that on 07.12.2000, the currency of waiting list expired because list of selected candidates were recommended by the RPSC on 08.06.2000 and the validity of reserve list expired on 07.12.2000. After considering entire facts of the case, this Court is of the opinion that the purpose of preparing reserve list as per Rule 20 of the Rules is to provide appointment to the candidates in the event of non-joining of any candidate from the main list. In case of State of J & K v. Satpal reported in AIR 2013 SC 1258 , the Hon'ble Supreme Court has held that the purpose of waiting list is to fill up the vacancies advertised in the event of non-joining of selected candidates from the main list. Para 11 12 & 18 of the said judgment reads as under:- "11. In view of the factual position noticed hereinabove, the reason indicated by the appellants in declining the claim of the respondent Sat Pal for appointment out of the waiting list is clearly unjustified. A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate, when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up. In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil) Grade-II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not assumed charge, one of the posts for which the process of recruitment was conducted, had remained vacant. That apart, even if it is assumed for arguments sake, that all the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil) Grade-II on 22.4.2008. That apart, even if it is assumed for arguments sake, that all the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil) Grade-II on 22.4.2008. The aforesaid offer was made, consequent upon his selection in the said process of recruitment. The validity of the waiting list, in the facts of this case, has to be determined with reference to 22.4.2008, because the vacancy was offered to Trilok Nath on 22.4.2008. It is the said vacancy, for which the respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23.8.2011 (extracted above), that the waiting list was valid till May, 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the unquestionable legal position, in so far as the present controversy is concerned. 12. The date of filing of the representation by the parties concerned and/or the date on which the competent authority chooses to fill up the vacancy in question, is of no consequence whatsoever. The only relevant date is the date of arising of the vacancy. It would be a different legal proposition, if the appointing authority decides not to fill up an available vacancy, despite the availability of candidates on the waiting list. The offer made to Trilok Nath on 22.4.2008 by itself, leads to the inference that the vacancy under reference arose within the period of one year, i.e., during the period of validity of the waiting list postulated by the rules. The offer of the vacancy to Trilok Nath, negates the proposition posed above, i.e., the desire of the employer not to fill up the vacancy. Herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy, over and above the posts for which the process of selection/recruitment was conducted. Herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy, over and above the posts for which the process of selection/recruitment was conducted. Based on the aforesaid inference, we have no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal, against the vacancy which was offered to Trilok Nath. 18. In view of the factual and legal position discussed by us hereinabove, we are of the view, that in the facts and circumstances of this case, it would be just and appropriate to direct the appellants to appoint the respondent Sat Pal against the post of Junior Engineer (Civil) Grade-II. The aforesaid offer of appointment will relate back to the permissible date contemplated under the rules laying down conditions of service of the cadre to which the respondent Sat Pal will be appointed. Naturally, the respondent will be entitled to seniority immediately below those who were appointed from the same process of selection. Since Sat Pal has not discharged his duties, he would be entitled to wages only with effect from the date of the instant order." 13. The said judgment was considered by this Court in S.B. Civil Writ Petition No. 198/2012 (Ms Sangeeta v. State of Raj. & Ors) decided on 04.03.2014 and while following the aforesaid judgment, following directions were issued by this Court:- "After hearing learned counsel for the parties, this writ petition is allowed and the respondent Department is directed to consider the case of the petitioner for providing appointment on the post of Forest Guard as per her position in the waiting list against the above existing vacancy within a period of one month from the date of receipt of certified copy of this order. It is made it clear that if the petitioner found otherwise eligible for the appointment then she will be entitled for benefits from the date of this order." 14. The aforesaid judgment have also been upheld by the Division Bench of this Court in D.B. Civil special Appeal (W) No. 1238/2014 decided on 14.10.2014. 15. In view of above facts and proposition of law, the action of respondent RPSC in not recommending the name of petitioner for appointment to the post of Sr. The aforesaid judgment have also been upheld by the Division Bench of this Court in D.B. Civil special Appeal (W) No. 1238/2014 decided on 14.10.2014. 15. In view of above facts and proposition of law, the action of respondent RPSC in not recommending the name of petitioner for appointment to the post of Sr. Demonstrator in the subject of Forensic Medicine is not sustainable in law because admittedly, the vacancy was in existence and requisition was sent by the Government to send the names from the waiting list but instead of sending the name, the RPSC sought clarification from the Government, therefore, the reply of RPSC that list was already expired on 07.12.2000 is not acceptable because RPSC itself stated in the reply that in response to the communication dated 07.12.2000 sent by the Government, a clarification was sought by the RPSC, meaning thereby, no decision was taken by the RPSC, not to send name from the waiting list on the ground of expiry of currency of waiting list but only clarification was sought by the RPSC. 16. In view of above, the denial of appointment to the petitioner due to inaction on the part of RPSC is totally in contravention of judgment of Hon'ble Supreme Court in the case of State of J & K v. Satpal (Supra) and the judgment of this Court in the case of Ms. Sangeeta (Supra). Consequently, this writ petition is allowed. RPSC is directed to recommend the name of petitioner for appointment on the post of Sr. Demonstrator in Forensic medicine from the waiting list prepared in pursuance of advertisement No. 4/98-99 dated 16.02.99 within a period of 15 days from the date of receiving certified copy of this order to the State Government to provide appointment against the vacancy which remained unfilled due to non-joining of Dr. Neelam Agarwal and upon receiving the recommendation, the State Government shall consider the case of petitioner to provide appointment on the post of Sr. Demonstrator in Forensic medicine from the date of availability of vacancy due to non-joining of Dr. Neelam Agarwal, within a period of one month thereafter, with all consequential benefits except backwages.Petition allowed. *******