JUDGMENT : Pradeep Nandrajog, J. D.B. Civil Misc. Appln No.1148/2018 in SAW No.1081/2018: D.B. Civil Misc. Appln No.1135/2018 in SAW No.1475/2018: D.B. Civil Misc. Appln No.1210/2018 in SAW No.1728/2018: D.B. Civil Misc. Appln No.1211/2018 in SAW No.1729/2018: D.B. Civil Misc. Appln No.1212/2018 in SAW No.1730/2018: D.B. Civil Misc. Appln No.1213/2018 in SAW No.1731/2018: D.B. Civil Misc. Appln No.1214/2018 in SAW No.1732/2018: D.B. Civil Misc. Appln No.1215/2018 in SAW No.1733/2018: D.B. Civil Misc. Appln No.1216/2018 in SAW No.1734/2018: 1. For the reasons stated in the applications delay in filing the appeals is condoned. 2. The applications are allowed. DBSAW Nos.1074/2018, 1077/2018, 1080/2018, 1081/2018, 1084/2018, 1085/2018, 1106/2018, 1475/2018, 1728/2018, 1729/2018, 1730/2018, 1731/2018, 1732/2018, 1733/2018 & 1734/2018: 1. The Rajasthan State Public Service Commission and the State of Rajasthan have challenged the judgment dated 10/05/2018 passed by a learned Single Judge of this Court disposing of writ petitions filed by practicing advocates who sought a direction that the reserve list for appointment to posts of Assistant Prosecution Officer pursuant to advertisement dated 15/05/2015 be given effect to and all notified vacancies should be filled up. 2. It was not disputed during arguments in the appeals that 294 posts of Assistant Prosecution Officer with break up of the posts as indicated in the advertisement was intended to be filled up because 294 vacancies were determined. 3. Way back in the year 2004 a Division Bench of this Court took note of large pendency of criminal cases before the trial courts and one of the principal reason which emerged was the lack of adequate infrastructure for Assistant Prosecution Officer as also not filling up the sanctioned post. DBCWP No.4998/2004 lingered on for 11 years when on March 27, 2015 following directions were issued:- "We are pained to observe that despite our requests, the State Government has not responded to fill-up the vacancies of Assistant Public prosecutors and to provide infrastructure to the Prosecution Department. The large pendency of criminal cases in the District Courts is on the failure of the State Government to Strengthen the Prosecution Department. The Assistant Public Prosecutors appointed by the State Government are not expected to sit under the trees on a table and chair outside the Court rooms and attend to more than one and some times more than two courts. The Assistant Public Prosecutors appointed by the State Government are not expected to sit under the trees on a table and chair outside the Court rooms and attend to more than one and some times more than two courts. This not only undermines their position as Assistant Public Prosecutor, but also his rotation in the eyes of the general public. The Assistant Public Prosecutor holds an important office, which cannot be ignored, for the purpose of administration of criminal justice. In the circumstances, we issue the following directions for strict compliance. (1) The State Government will immediately make recommendations for recruitment for all the vacancies on the post of Assistant Public Prosecutors, to the RPSC within one month. The advertisement will be issued and selections will be completed within six months. (11 of 22) [CW- 10730/2017] (2) The State Government will sanction the posts of staff for Assistant Public Prosecutors, to include at least one clerk, one stenographer and a peon within three months. (3) The State Government will prepare a model plan, if it has not been prepared earlier, for the Districts in suitable categories for providing infrastructure, which will include an office room, waiting room, wash room, witness room, a room for the staff, furniture, office equipment including computer, printer, stenographer. In major cities atleast two witness rooms with adequate facilities of sitting and water cooler and wash room will be provided. The State Government will sanction the budget immediately without any delay, after the preparation of plan, for which two months' time is given to the State of Rajasthan. (4) The State Government will file an affidavit giving reasons as to why the amount of Rs.3.90 crores for training of Public Prosecutors in the 13th Finance Commission Grants could not be spend. The affidavit of compliance giving the targeted dates will be filed on or before 16.4.2015. List again on 16.4.2015." 4. It was pursuant thereto that on 15/05/2015 the advertisement inviting applications from eligible candidates to fill up 294 posts of Assistant Prosecution Officer was issued. 5. The written examination was conducted on 18th and 25 October, 2015. Result was declared on 22/12/2015. It had to be revised on 11/07/2016 and 19/11/2016. Meaning thereby, final merit list was prepared on 19/11/2016. 6. 5. The written examination was conducted on 18th and 25 October, 2015. Result was declared on 22/12/2015. It had to be revised on 11/07/2016 and 19/11/2016. Meaning thereby, final merit list was prepared on 19/11/2016. 6. For reasons unknown, notwithstanding 294 posts being available and notified to be filled up, RPSC recommended names of only 270 candidates for appointment on 06/12/2016. 9 candidates were recommended for appointment on 15/12/2016. Names of 2 candidates were recommended for appointment on 21/12/2016. Thus, only names of 281 candidates were recommended for appointment on 294 vacancies. 7. The reserve list was drawn on 18/01/2017. All 281 candidates who were offered appointment did not join. (Exact number was not being disclosed in the pleadings). The reserve list was operated twice on 13/06/2017 and 19/06/2017 recommending names of 3 and 30 candidates, respectively. On 20/06/2017 once again reserve list was operated recommending 3 more names. For reasons once again unknown, the State issued appointment orders and last order offering appointment was issued on 18/12/2017. It appears that the State Government and the RPSC were dragging their feet. As noted above vacancies which were available as in 2004 were not filled up till when judicial orders had to be passed by this Court on 27/03/2015. The conduct of the State and RPSC, from the facts briefly noted hereinabove, show a recalcitrant attitude to fill up 294 posts. 8. Writ petitions were filed in the year 2017 pleading the facts noted above, highlighting further facts that some candidates to whom letters offering appointment were issued were extended time to join on 23/05/2017 and 26/05/2017. Some candidates were granted extension of time to join as late as on 07/11/2017. 9. Case of the writ petitioners was that since the State and RPSC had not issued appointment letters to all the empanelled candidates and to some empanelled candidates had been extending time to join, on account of said two reasons i.e. (1) not offering appointment at the first instance to 294 candidates and (2) by extending time to the select list candidates to join beyond the period of six months i.e. life of the reserve list envisaged by the rules this should not be to the detriment of the reserve list candidates. 10. 10. On 24/06/1974 Rajasthan Education Subordinate Service Rules, 1978 were promulgated and Rule 22 whereof reads as under:- "22 Recommendation of the commission The commission shall prepare a list of the candidates whom they consider suitable for appointment to the posts concerned, arranged in the order of merit. The commission shall forward the list to the Appointing Authority. Provided that the commission may, to the extend of 50th 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." 11. Relying upon the Rule the contention before the learned Single Judge by RPSC and the State was that the proviso to the Rule requires life of the reserve list to be six months reckoned from the date on which the original list is forwarded by the commission to the Appointing Authority. As per RPSC and the State recommendations by RPSC from the merit list were made on 06/12/2016, 15/12/2016 and lastly on 18/12/2016. Thus, as per RPSC and State six months time would reckon from 21/12/2016, this would mean that the life of the reserve panel would come to an end on 22/06/2017. 12. Granting relief to the writ petitioners learned Single Judge has highlighted that appointment letters were issued by the State as late as 18/12/2017. The learned Single Judge has also highlighted that even as late as 07/11/2017 candidates who were offered appointment were granted extension of time to join and in spite thereof the candidates had not joined. 13. View taken by the learned Single Judge is that the rule was breached by the State and keeping in view the fact that recruitment was made pursuant to the direction issued by this Court on 27/03/2015, the learned Single Judge has highlighted that it would be the duty of the State to ensure that all notified vacancies were filled up. The learned Single Judge had found sustenance to the view taken in view of the past decisions of this Court which were upheld by the Supreme Court. 14. The first decision rendered by the learned Single Judge is Sarita Chaudhary Vs. State of Rajasthan & Ors. reported as, (2016) 2 RajLW 1615. 15. The learned Single Judge had found sustenance to the view taken in view of the past decisions of this Court which were upheld by the Supreme Court. 14. The first decision rendered by the learned Single Judge is Sarita Chaudhary Vs. State of Rajasthan & Ors. reported as, (2016) 2 RajLW 1615. 15. A pari materia Rule No.25 of the Rajasthan Technical Education (Engineering) Service Rules, 2010, envisaging life of a reserve list to be six months was considered in said direction. On facts, learned Single Judge noted that the select list was forwarded to the State Government by RPSC on 01/01/2014. Appointment orders were issued initially piecemeal on 08/01/2014 and 23/01/2014. Appointment orders were issued thereafter from time to time and lastly on 22/08/2014. The learned Single Judge held that the purpose of reserve list is to meet contingencies when the selected candidates do not join. The learned Single Judge held that the requirement to summon the names from the reserve list within the stipulated period of six months would only operate if the Government completes the process of issuing appointment orders from the main list within the said period of six months. If the Government itself delays the process of issuing appointment orders beyond the period of six months, then opportunity would not arise to operate the reserve list within the stipulated time frame, thereby virtually frustrating the very purpose of preparing the reserve list. The said decision of the learned Single Judge was upheld by a Division Bench of this Court on 22/01/2016 in DBSAW No.29/2016. SLP (C) No.10754/2016 against the Division Bench was dismissed by the Supreme Court on 04/07/2016. 16. Whilst it is true that a reserve list is not a perennial source of recruitment and thus vacancies which may have accrued after an advertisement is issued cannot be directed to be filled up by operating the reserve list and additionally where candidates offered appointment join but resign subsequently cannot be a ground to operate a reserve list for the reason once candidates joins, the vacancies are filled. But as held by the Supreme Court in paragraph 10 of the decision Gujrat State Dy. Executive Engineers Association Vs. State of Gujrat and Ors. But as held by the Supreme Court in paragraph 10 of the decision Gujrat State Dy. Executive Engineers Association Vs. State of Gujrat and Ors. reported as, (1994) Supp2 SCC 591 : "it is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused". 17. In the decision State of Bihar Vs. Madan Mohan Singh and Ors. reported as, (1994) AIR SC 765 : after noting various decisions the Supreme Court held that a particular selection is meant for filling of vacancies advertised in that selection from the candidates selected and the select list would be well and good for the purpose of filling only those vacancies for which the selection has been made. The decision highlights the relevance of all notified posts to be filled up, unless there were justifiable reasons brought on record not to do so. 18. In the decision State of Jammu and Kashmir & Ors. Vs. Sat Pal reported as, (2013) 11 SCC 737 : the Supreme Court has noted that as per Rules life of a wait list was one year. The Supreme Court noted that the recruitment process had commenced in the year 2008. Supreme Court has noted that claim of Sat Pal, who was a writ petitioner before the High Court was premised on a wait list, period whereof was one year. In para 10 the Supreme Court noted that some of such post remained vacant on account of the fact persons higher in merit to the respondent Sat Pal had declined to join, despite having been offered appointment and last of whom was Trilok Nath. In para 11 the Supreme Court has held 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. 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. 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." 19. We highlight that in said paragraph the Supreme Court has clearly held that a waiting list would start to operate only after the posts for which the recruitment is conducted, have not been filled up from the merit list. This would be the unquestionable legal position, in so far as the present controversy is concerned." 19. We highlight that in said paragraph the Supreme Court has clearly held that a waiting list would start to operate only after the posts for which the recruitment is conducted, have not been filled up from the merit list. Thus, names from the wait list was held to be recommendable with effect from 22/04/2008 because that was the date when vacancy offered to Trilok Nath was not filled up. 20. We would be failing not to highlight that there is a public interest litigation pending in this Court seeking appointment of more Assistant Prosecution Officers for vacancies which had occurred after the year 2015. Progress of criminal trials in the subordinate courts is held up on account of non-availability of adequate numbers of prosecuting officers. It also cannot be overlooked by us that the mandamus issued by the Division Bench of this Court which we have noted hereinabove requires the State to fill up all the notified vacancies without any caveat. 21. Affirming the view taken by the learned Single Judge and clarifying that decision by the learned Single Judge would not mean that all the writ petitioners have to be offered appointment; appointment from the reserve list would be made strictly in order of merit of the candidates in the reserve list and additionally keeping in view the position of reservation. Needful shall now be done by the RPSC and the State within a period of two months from today. 22. All appeals are accordingly disposed of.