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2020 DIGILAW 571 (RAJ)

Kuldeep Kumar v. State of Rajasthan

2020-07-20

DINESH MEHTA

body2020
JUDGMENT Dinesh Mehta, J. - Petitioners joining the present bunch of the writ petitions, have prayed appropriate directions to fill up the posts remaining vacant pursuant to the selection process initiated vide advertisement dated 31.07.2018. 2. The petitioners' prayers are identical, which run as under : "It is, therefore, most humble prayed that this writ petition may kindly be allowed with cost and by and appropriate writ, order or direction :- A. By an appropriate writ order or direction, any order denying to operate the fresh reserve list or any reshuffled result against the non-joined candidates or available vacant posts of Teacher Grade - III (Level-II) Hindi for Non-TSP Area in pursuance of the advertisement dated 31.07.2018 (Annex-3) may kindly be quashed and set aside B. By an appropriate writ order or direction, the respondents may kindly be directed to operate the fresh reshuffle result or reserve list of Teacher Grade - III (Level-II) Hindi for total available posts by exclude the names of the selected candidates in the earlier reshuffled result, those who joined as Teacher Grade - III (Level-II) in another respective subjects as selected for the post of Teacher GradeIII (Level-II) for Non-TSP Area in pursuance of the advertisement dated 31.07.2018. C. By an appropriate writ order or direction, the respondents may kindly be directed to permit the petitioners in the selection process and provide the appointment as per their marks against the available vacant posts as not filled-up by ineligible and non-joined candidates for the post of Teacher Grade - III (Level-II) Hindi for Non-TSP Area in pursuance of the advertisement dated 31.07.2018 with all consequential benefits. D. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners, E. Writ petition filed by the petitioners may kindly be allowed with costs." 3. D. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners, E. Writ petition filed by the petitioners may kindly be allowed with costs." 3. Without burdening the judgment by taking facts from each case, the facts which are common and necessary are narrated hereunder : 3.1 An advertisement dated 31.07.2018 came to be issued by the respondents for filling up the following subjectwise posts of Teacher Grade-III : Non-TSP-2018 Teacher Grade-III, Level-II S.No. Subject Total Post 1 English 9278 2 Hindi 4762 3 Science & Maths 5728 4 Social Studies(SSt) 2700 5 Sanskrit 614 6 Sindhi 55 7 Urdu 122 3.2 The vacancies were required to be filled in accordance with Rule 266 of Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as the 'Rules of 1996'). Accordingly, it was stipulated in the advertisement that the selection would be made on the basis of marks obtained in REET/RTET examination and Graduation, however, giving 70% and 30% weightage (respectively to the marks obtained in REET/RTET and Graduation). 3.3 Based on the above criteria, the result was preapred by the respondents on 03.09.2018 and first subject-wise provisional select list was issued and category-wise candidates equal to the posts advertised were invited for documents verification. 3.4 During the documents verification, certain candidates were found ineligible, whereas some of them did not turn up at all. 3.5 Another list (hereinafter referred to as the 'second list') was issued on 21.12.2018 indicating therein that it had been issued after excluding those candidates, who did not turn up for documents verification. 3.6 Thereafter a number of lists came to be issued by the respondents between 21.02.2019 and 28.02.2019 (hereinafter referred to as the 'third list'(s), wherein new/reshuffled result was published. This time list was prepared after excluding the candidates, who did not appear for document verification; those whose credential were not in order and also those candidates who did not join within the time allowed. 3.7 After issuance of the third list(s) on 28.02.2019, the respondents stopped the further process, inspite of the fact that many posts were still lying unfilled. The respondents did not even consider that many of the candidates even from the third list(s) (dated 21.02.2019 to 28.02.2019) did not join. 4. 3.7 After issuance of the third list(s) on 28.02.2019, the respondents stopped the further process, inspite of the fact that many posts were still lying unfilled. The respondents did not even consider that many of the candidates even from the third list(s) (dated 21.02.2019 to 28.02.2019) did not join. 4. The petitioners have approached this Court inter alia contending that the respondents have included names of those candidates in second list, who did not turn up and who have been selected for other subjects and gave their joining. During the pendency of the petitions 'third list' dated 28.02.2019 have been published. After publication of the select list on 28.02.2019 petitioners have raised a grievance that various posts remained vacant, as many of the candidates did not turn up for joining and also because many of the selected candidates have already joined in different subjects, thus they were not inclined to join. 5. It is contended by the petitioners that even in the list dated 28.02.2019, the respondents have reflected names of many candidates in the waiting list, whose names were already shown in the select list in different subjects and who have already given their joining in their subject of choice. 6. On 22.01.2020, while noticing the contention of the rival parties, this Court had drawn the following order-sheet : "The respondents - State is directed to place on record the present position of categorywise vacant seats for each subject of Teacher Grade-III (LevelII) out of the seats notified vide advertisement dated 31.07.2018.In case, name(s) of any candidate(s) is/are reflected in more than one subject, the State will rationalise the same and remove his/her name, in case he/she has joined in any other subject.The aforesaid position will be given after removal/striking off the names of such candidates. List these matters on 12.02.2020." 7. An additional affidavit dated 02.03.2020 has been filed by the respondents in furtherance of the above directions issued by this Court and subject-wise vacant position of seats or the seats which remained unfilled, after publication of the provisional select list on 28.02.2019 has been given. The said detail is reproduced hereunder : "IMAG" 8. Having considered the vacancy position as reflected in the affidavit above referred and the submissions made by rival counsel, the following order was passed on 03.03.2020 : "1. The said detail is reproduced hereunder : "IMAG" 8. Having considered the vacancy position as reflected in the affidavit above referred and the submissions made by rival counsel, the following order was passed on 03.03.2020 : "1. The affidavit filed by the respondent - State, clearly shows that as of today many seats out of the advertised vacancies are lying unfilled; to mention a few : - 506 posts are lying unfilled in non-TSP area Level-II (Subject English); 59 posts are in TSP area in Level-II (Subject English); 50 posts in TSP area Level-II (Subject Hindi). There are many other seats which have remained unfilled. 2. Mr. Vyas, learned Additional Advocate General, responding to petitioners' contentions that all these vacant posts are required to be filled, as no fresh vacancies have been advertised, submits that reserve list has been operated and now new exercise cannot be done. Said stand of learned Additional Advocate General seems to be in light of para No.5 of the reply. Heavy reliance has been made on the decision dated 25.02.2019, taken in a meeting under the aegis of Principal Secretary, School Education and Language, filed as Annexure-1 with the reply. 3. Upon considering the submission of Mr. Vyas an impression can be gathered that the respondents have taken the decision not to fill up the vacant posts, being wary of future complications that already selected/appointed candidates may claim their rights of appropriate posting. Mr. Vyas apprehends that if further appointments are given, candidates having less marks and lower in the merit will be given appointment/posting in the Districts, for which the selected candidates had given option, but could not be accommodated as per their prevailing merit positions. 4. In prima facie opinion of this Court, such stand of the learned AAG and taken in the reply is contrary to the minutes of meeting dated 25.02.2019. 5. A careful reading of the minutes aforesaid on the contrary suggests otherwise. It will not be out of place to reproduce relevant extract of the resolution adopted by the Committee in its meeting dated 25.02.2019 : "IMAG 1" 6. According to the record available last (Third) reshuffled list was issued on 21.12.2018. There is nothing on record to evince that any attempt was made to reshuffle the list or operate the reserve list after 25.02.2019. 7. According to the record available last (Third) reshuffled list was issued on 21.12.2018. There is nothing on record to evince that any attempt was made to reshuffle the list or operate the reserve list after 25.02.2019. 7. If the affidavit dated 02.03.2020 filed by the respondents, pursuant to the order dated 22.01.2020, showing the unfilled posts out of the posts advertised, is taken into consideration, in light of the minutes of meeting dated 25.02.2019, this Court feels that what has been submitted by learned Additional Advocate General is not in conformity with the State's viewpoint in relation to the posts lying unfilled and reshuffling or operating the reserve list. 8. That apart, about 1000 posts are admittedly lying unfilled. On the one hand, unemployed youth are waiting for employment and on the other hand various schools run by the State Government are starving for teachers - the ultimate sufferer are, young children whose rights of education are being impaired if not infringed. 9. This Court deems it appropriate to first acquaint with the stand of the appointing authority i.e. Panchayati Raj Department, as to whether they intend to give appointment on the unfilled posts or not. 10. Let an affidavit of some responsible Officer (not below the rank of Joint Secretary) of Panchayati Raj Department be filed indicating as to whether the Panchayati Raj Department intends to fill up the posts lying unfilled. If the answer is negative, the affidavit shall contain brief reasons for such stand. 11. List these matters on 18.03.2020." 9. An additional affidavit has now been filed by the respondents on 08.07.2020, in pursuance of the above referred order dated 03.03.2020, indicating therein that the State has taken an in-principle decision not to fill-up the remaining posts in a meeting held under the Chairmanship of Joint Secretary, Panchayati Raj Department on 23.06.2020. It will not be out of place to reproduce relevant extract of the minutes of the meeting dated 23.06.2020, particularly paras No.1 & 2 thereof : "IMAG 2" 10. Learned counsel for the petitioners argued that indisputably 2331 posts for Non-TSP area and 509 posts in TSP area - total 2840 posts, as mentioned in the minutes of above referred meeting and affidavit dated 03.03.2020 have remained unfilled. 11. Learned counsel for the petitioners argued that indisputably 2331 posts for Non-TSP area and 509 posts in TSP area - total 2840 posts, as mentioned in the minutes of above referred meeting and affidavit dated 03.03.2020 have remained unfilled. 11. It was argued by the petitioners that the respondents have proceeded erroneously inasmuch as while issuing first provisional select list, they had called all the candidates (as per their merit) for documents verification and then, the provisional select list was issued after excluding the candidates whose documents were not found in order and/or the candidates, who did not turn up for document verification. 12. According to the learned counsel for the petitioners, the respondents ought to have first verified the documents and thereafter issued list of suitable candidates, which is the mandate of Rule 277A of the Rajasthan Panchayati Raj Rules, 1996. 13. According to the learned counsel for the petitioners, Rule 277A of the Rules of 1996 required the publication of list of suitable candidates and not meritorious candidates. He emphasised that until and unless the documents and other credentials have been verified, it cannot be said that the persons mentioned in the list are suitable for appointment. 14. According to the learned counsel for the petitioners, if the respondents wished to proceed strictly in accordance with the Rules and law, they were supposed to issue select list of only those candidates, whose credentials/documents were found in order. 15. He argued that at least five months' time has lapsed in issuing purported first select list and the third select list and reserve list, for no fault of the petitioners. He was at pains to point out that after issuing the select list dated 28.02.2019, the respondents have treated their job/responsibility to be over and have brought an end to the selection process, for no justifiable reason. 16. It was also submitted that the rules require issuance of waiting list, which should be issued along with the publication of select list of all the posts advertised. It was contended that the waiting list, which has been issued by the respondents along with first list, cannot be said to be a waiting list and the same cannot be legally issued unless the final select list has been issued. 17. It was contended that the waiting list, which has been issued by the respondents along with first list, cannot be said to be a waiting list and the same cannot be legally issued unless the final select list has been issued. 17. It was argued by the learned counsel for the petitioners that as per the mandate of the rules, the respondents were required to issue the list of selected candidates qua the total posts advertised with respect to each of the subjects, while also issuing subject-wise categorywise reserve list of candidates. 18. According to the learned counsel, the respondents were required to call the persons from the reserve list and in case the reserve list of 50% of candidates was exhausted and still posts remained unfilled, they were required to call for the list of further candidates from the subsequent merit list. 19. Learned counsel for the petitioners vehemently argued that in a case like the present one, where large number of posts have been advertised for different subjects, it is a usual phenomenon that number of candidates apply for more than one subjects, while giving their subject choice. Many candidates get selected in more than one subject. 20. It was shown from the record that number of candidates did not join, though their names were reflected in select lists of more than one subject. In this regard, Court's attention was invited towards page No.19 of SB Civil Writ Petition No.2247/2019 to satisfy that names of the candidates mentioned in the memo of writ petition have been reflected in the subsequent list issued by the respondents, though they had already given their joining for different subject(s). 21. Learned counsel for the petitioners argued that admittedly 2840 posts have remained unfilled and thousands of candidates, who have appeared in the selection process in question are waiting in queue in the hope of appointment, but the respondents have stopped the process without any reason. 22. It was argued that the posts are still lying unfilled and neither any conscious decision was taken to not to fill the remaining posts out of the posts, which were advertised by the respondents nor has any subsequent process for recruitment initiated. 23. Learned counsel for the petitioners placed reliance upon the judgment dated 09.01.2020 in the case of Mohd. Aslam Vs. State of Rajasthan & Ors. : SB Civil Writ Petition No.11505/2019. 24. Mr. 23. Learned counsel for the petitioners placed reliance upon the judgment dated 09.01.2020 in the case of Mohd. Aslam Vs. State of Rajasthan & Ors. : SB Civil Writ Petition No.11505/2019. 24. Mr. Kailash Choudhary, learned counsel for the respondents at the outset submitted that proper facts could not be brought to the notice of this Court on 03.03.2020, for which the Court had only considered para No.3.2 of the minutes of the meeting dated 25.02.2019 and recorded that the reply of the respondents was contrary to the minutes of the meeting. 25. He invited Court's attention towards Para No.3.1 of the minutes of the meeting and submitted that the respondents have decided not to fill up the remaining posts, which is clear from the minutes which indicate that the exercise of reshuffling and including new names would be undertaken once only. 26. In response to Court's concern that what was the reason and justification behind the decision to undertake reshuffling exercise only once, it was argued that if this exercise were to be undertaken again and again, the post(s)/place of posting which remained unfilled on account of non-joining of the selected candidates would naturally be available to be offered to those newly included candidates, who though were standing lower in merit, would be given such posting, whereas the same was earlier refused or was not available, when persons higher in merit opted for such place. 27. Learned counsel for the respondents, vehemently argued that the petitioners have failed to show any vested right, which is a sina-qua non for claiming a mandamus. Another submission was forcefully made that petitioners cannot claim any right to be appointed. 28. In support of the contentions aforesaid, learned counsel cited judgments of Hon'ble Supreme Court in the case of Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College, (1962) Supp2 SCR 144 ; State of Haryana Vs. Subash Chander Marwaha & Ors, (1974) 3 SCC 220 ; Shankarsan Dash Vs. UOI, (1991) 3 SCC 47 ; Batiarani Gramiya Bank Vs. Pallab Kumar & Ors, (2004) 9 SCC 100 ; Subha B. Nair & Ors. Vs. State of Kerala & Ors, (2008) 7 SCC 210 ; Manoj Manu & Anr. Vs. UOI & Ors, (2013) 12 SCC 171 ; and Kulwinder Pal Singh & Anr. Vs. State of Punjab & Ors, (2016) 6 SCC 532 . 29. Pallab Kumar & Ors, (2004) 9 SCC 100 ; Subha B. Nair & Ors. Vs. State of Kerala & Ors, (2008) 7 SCC 210 ; Manoj Manu & Anr. Vs. UOI & Ors, (2013) 12 SCC 171 ; and Kulwinder Pal Singh & Anr. Vs. State of Punjab & Ors, (2016) 6 SCC 532 . 29. In rejoinder, learned counsel for the petitioners relied upon a judgment of this Court rendered in the case of Shiv Kumar Vyas Vs. State of Rajasthan & Ors : SB Civil Writ Petition No.2116/2013, decided on 14.05.2013 and submitted that in almost identical circumstances, in the recruitment process of 2012 of the same Department, this Court has issued directions to the respondents to fill the unfilled posts and operate the reserve list. 30. It was argued by Mr. Jangid that a perusal of the minutes of the meeting dated 23.06.2020 filed along with the additional affidavit dated 08.07.2020, particularly para No.2 shows otherwise - these posts have been kept alive and included in the total 41,000 posts, which have been projected rather propagated by the State Government to be filled in the Budget Year 2020-2021. 31. Having heard learned counsel for the parties and perused the material available on record, this Court has no hesitation in holding that the respondents have failed to proceed in accordance with the rules. They have also failed to observe reasonableness and diligence required of them. 32. It may be true, that after issuance of reshuffled list, when the new incumbent were called for document verification, those candidates, who have already joined, were not invited, but nevertheless their names have been shown in the reserve list published on 28.02.2019. 33. It is to be noticed that on 28.02.2019, when the select list and reserve/waiting list were issued, respondents in their meeting dated 25.02.2019 had not taken any decision as to whether the reserve list would be operated or not. After issuance of select list and reserve list on 28.02.2019, the respondents just went in hibernation. 34. 33. It is to be noticed that on 28.02.2019, when the select list and reserve/waiting list were issued, respondents in their meeting dated 25.02.2019 had not taken any decision as to whether the reserve list would be operated or not. After issuance of select list and reserve list on 28.02.2019, the respondents just went in hibernation. 34. After the direction dated 03.03.2020, the State Government in its meeting dated 23.06.2020 has purportedly decided to not to fill the remaining seats by simply observing that it would not be conducive to carry on the process, as it would give rise to contentious issues and heart burning to the already selected candidates about place of posting, as noticed in Para No.3.1 of the minutes of the meeting. 35. In considered opinion of the Court, the decision taken in the meeting dated 23.06.2020 is not in conformity with the rules on the one hand and it is arbitrary and violative of Article 14 and 16 of the Constitution of India on the other. 36. The first judgment of Mr. Chaudhary, learned counsel for the respondents, in case of Dr. Rai Shivendra Bahadur (supra) is distinguishable on facts in as much as the Hon'ble Supreme Court has held that the petitioner has to show his persisting or vested right to seek Mandamus. In the present case, the petitioners whose names have been mentioned in waiting list/reserve list definitely have a right to be considered for appointment, particularly when the posts remained unfilled. 37. The remaining judgments cited by Mr. Chaudhary are to the effect that it is the discretion of the State Government to fill or not to fill the unfilled posts. So far as the proposition laid down in the judgments cited by Mr. Chaudhary are concerned, there cannot be any quarrel, but then, in the present case the State has failed to demonstrate that there was any conscious decision on the part of the State, not to fill the remaining unfilled 2840 posts of different subjects. So called decision taken in the meeting dated 23.06.2020 is also nothing short of excuse to cover up their inaction of not operating the waiting list. 38. Admittedly third list was issued on 28.02.2019 and on the same day reserve list was issued. No justification worth the name has been given for not calling the candidates from the reserve list, though 2840 posts remained vacant. 38. Admittedly third list was issued on 28.02.2019 and on the same day reserve list was issued. No justification worth the name has been given for not calling the candidates from the reserve list, though 2840 posts remained vacant. The decision now taken in the meeting dated 23.06.2020 is firstly arbitrary and contrary to mandate of rules and cannot be accepted as a conscious and valid decision of the State to not to fill up the seats which remained unfilled. 39. On the contrary, the facts are revealing. The State on the contrary has merged these posts in the total vacant posts, to be filled in future, as is evident from the minutes of meeting dated 23.06.2020. 40. Given the fact that a large number of seats were lying vacant, the respondents were not justified in taking the decision that they would not proceed in furtherance of the recruitment and not call for the candidates from the reserve list on the pretext of administrative difficulties. 41. Admittedly, no process for recruitment has so far been taken up, much less issuance of advertisement. Hence, there is no impediment in operating the waiting list. 42. The respondents have abruptly aborted the selection process without any reasonable basis. 43. In the opinion of the Court, being wary of the procedural hurdle or apprehending difficulty in implementation, so also under the apprehension of dispute in relation to place of posting by the candidates already selected, cannot be a reason to deprive the candidates from the waiting list of their fundamental right of consideration/appointment on the basis of their merit for the vacant seats. 44. It will not be out of context to take a look at the relevant Rule namely 277A. Relevant part thereof viz Clause (vi) & (vii) is being reproduced hereunder : "(vi) the Authorized Agency shall prepare category wise select list of the candidates declared successful on the basis of criteria of selection laid down by the State Government from time to time: Provided that the Authorized Agency may, to the extent of fifty percent of the finally intimated vacancies, keep names of suitable candidates on the reserve list. The Authorized Agency may on requisition recommend the name of such candidate in the order of merit to the Zila Parishad concerned, within six month from the date on which original list was forwarded by the Authorized Agency; (vii) the Authorized Agency shall prepare district wise list of the selected candidates, out of list prepared under clause (vi), according to the preference given by them in the application form; and (viii) the Authorized Agency shall send the list of selected candidates prepared under clause (vii) to the Zila Parishad concerned, with their application forms, for appointment." 45. A purposive reading of clause (vi) of Rule 277A of the Rules of 1996 clearly suggest that the authorised agency is supposed to prepare select list of the candidates declared successful on the basis of criterion of selection. A perusal of proviso to clause (vi) and clause (vii) shows that the authorised agency is supposed to keep names of suitable candidates to the extent of 50% of the finally intimated vacancies on the reserve list. A purposive reading of Rule 277A of the Rules of 1996 clearly suggests that the authorised agency is required to send select list of successful candidates. In the facts of the present case, when no written examination or interview were held and the criteria for selection is only based on the weightage percentage of marks in RTET/REET and Graduation, the first list dated 03.09.2018 was simply a merit list showing the top candidates from each of the category - subject-wise. The list of 28.02.2019 (the third list) is not a select list in strict sense, as it did not contain names of equal number of candidates to the posts that were notified to be filled through the subject advertisement. As a matter of fact the so called reserve list cannot be said to be a reserve list, as the process of selection was not over. 46. Unless the State, by a conscious and informed decision, decides to abolish the posts and reduces the 'finally intimated vacancy' the process of selection cannot be aborted. The decision of the State Government taken in the meeting dated 23.06.2020, cannot be taken to be a decision to reduce the 'intimated vacancy'. 47. The embargo of operating the waiting list beyond six months doses not apply in the present case, for the reasons stated hereinabove. The decision of the State Government taken in the meeting dated 23.06.2020, cannot be taken to be a decision to reduce the 'intimated vacancy'. 47. The embargo of operating the waiting list beyond six months doses not apply in the present case, for the reasons stated hereinabove. That apart, petitioners have approached the Court, even prior to issuance of the select list and reserve list dated 28.02.2019. 48. That apart, upon perusal of the additional affidavit dated 08.07.2020, this Court clearly finds that the seats are still lying vacant and the respondents have included them in the posts to be filled in Budget Year 2020-2021. 49. Admittedly, 2840 posts are lying vacant, pursuant to the advertisement dated 31.07.2018. The petitioners and other candidates who have taken part in the process, are awaiting fingers crossed in a hope and trust that remaining seats will be filled and at least 2840 of those in the waiting list will be accommodated. These candidates who could legitimately be appointed will have to wait for the next advertisement (which has not been issued for last 2 years) and by that time many of them would be over aged on the one hand and on the other hand, will have to compete with the fresh candidates who have become eligible after the last advertisement - the candidate who are in waiting list will have to wait till eternity. 50. The irony is that on the one hand thousands of youths are waiting for employment and on the other, the schools in which the posts are lying vacant, are struggling to impart education. The ultimate sufferer are children - the future of this nation. Impugned action of the respondents have not only impaired the future of the present generation but has also retarded if not ruined the future of next generation. 51. As an upshot of discussions aforesaid, these writ petitions are allowed. The respondents are directed to fill the remaining post of each subject, while operating categorywise reserve list. It will be required of the respondents to ignore those candidates, who have already joined, pursuant to the advertisement in question and those who have not turned up either for documents verification or for joining. 52. Stay applications are also disposed of.