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Rajasthan High Court · body

2023 DIGILAW 981 (RAJ)

Bhanwari v. State of Rajasthan

2023-05-01

DINESH MEHTA

body2023
ORDER : 1. By way of the instant writ petition, the petitioner has impugned the action of the respondents, as they did not call the petitioner for document verification and consequently, did not offer her appointment, though one post was vacant. 2. The facts pertinent for the present purposes are that the petitioner vied for the post of Jail Warder pursuant to recruitment notification dated 29.10.2015. The petitioner being an OBC-non creamy layer candidate staked her claim against 16 posts of Jodhpur Division out of which 12 were earmarked for General female candidates and 4 for OBC Female candidate. 3. The petitioner cleared the written examination so also physical standard and efficiency test. 4. When the result was declared and provisional list of finally selected candidates eligible to be called for document verification was issued, out of 12 post of General Female, the respondents gave appointment only to 11 candidates and one seat was kept reserved for one Punni Devi purportedly for giving effect to the order passed by a co-ordinate Bench of this Court in a writ petition filed by her (SBCWP No. 6130/2018). 5. Three candidates namely Sumta, Kundani and Bhanwari (the petitioner) were shown in the Waiting List at number 1, 2 and 3 respectively. 6. Mr. Rajpurohit, learned counsel for the petitioner informed the Court that one female out of the selected candidates namely, Maina Devi (out of General Female category) did not turn up for document verification for which one seat for (General) became vacant, against which Sumta (WL-1) was appointed whereas candidature of one candidate of OBC category was rejected against which, one Kundani (WL-2) was given appointment in the OBC category. 7. Learned counsel argued that the respondents gave appointment qua 11 posts of General Female only and did not fill up the post that was kept vacant for Punni Devi. 8. He argued that while passing the order dated 05.02.2018, the High Court had not issued any direction to keep any seat reserved, however, one seat in (General Female category) was kept vacant and the same was left vacant for no reason. 9. It was submitted that Punni Devi's representation was rejected on 04.06.2018 and thus, the seat (General Female category) that was kept vacant was clearly available for allocation/ appointment. 9. It was submitted that Punni Devi's representation was rejected on 04.06.2018 and thus, the seat (General Female category) that was kept vacant was clearly available for allocation/ appointment. He argued that the waiting list/reserved list was operated by the respondents in October, 2018, after rejection of the representation of Punni Devi, hence the respondents ought to have given appointment on 2 seats (General Female category) and hence, the petitioner, who was at S. No. 3 in the waiting list, ought to have been given appointment against the OBC Female seat, which had gone to Kundani. 10. Mr. Bissa, learned counsel for the respondents, on the other hand, submitted that the seat which was kept vacant was only for concerned candidate, namely, Punni Devi and since, the recruitment process of 2018 has begun, the respondents could not offer appointment to the petitioner as the life of the waiting list is only for a period of six months. 11. Heard learned counsel for the parties and perused the material available on record. 12. It is not in dispute that at the time of declaration of results, Sumta, Kundani and the petitioner-Bhanwari stood at No. 1, 2 and 3 respectively in the waiting list. 13. It is evident from perusal of the result (Annex.6) that one seat in (General Female category) was not filled pending disposal of Punni Devi's representation in pursuance of the order dated 02.05.2018, passed in SBCWP No. 6130/2018. 14. It is also not in dispute that the representation filed by Punni Devi had been rejected by the respondents on 04.06.2018. 15. Such being the position, on 18.10.2018, at the time of operating waiting list, the respondents were having the seat which was reserved for Punni Devi available for appointment. As such on 18.10.2018, 2 clear vacancies in General Female category and one in OBC Category were available for appointment. 16. The petitioner has come with a specific assertion that one post that was kept vacant for Punni Devi remained vacant and the respondents did not call the petitioner for further selection process on 18.10.2018, though representation of Punni Devi stood rejected on 04.06.2018. 17. In response to the petitioner's assertion the respondents have taken a plea that said one post was kept vacant for Punni Devi alone. Said reasoning is also reflected in communication dated 07.01.2019, whereby representation filed by the petitioner had been rejected. 18. 17. In response to the petitioner's assertion the respondents have taken a plea that said one post was kept vacant for Punni Devi alone. Said reasoning is also reflected in communication dated 07.01.2019, whereby representation filed by the petitioner had been rejected. 18. Such plea of the respondents is baseless and untenable. On rejection of representation of Punni Devi, it was incumbent upon the respondents to have included this seat (General) in the available seats for which candidates from waiting list were called for medical examination and document verification. 19. The respondents were, therefore, supposed to give two appointments in General Female category which would have gone to Sumta and Kundani and the petitioner being OBC Female candidate standing at waiting list number 3rd was thereafter to be given appointment as OBC candidate. 20. This Court neither finds any substance in the argument of Mr. Bissa that the waiting list could survive only for a period of six months nor does it find merit in the contention that since the advertisement has been issued on 20.07.2018, the petitioner could not be given appointment. The reasons for holding such opinion is not far to seek. 21. It is to be noted that the advertisement for fresh recruitment came to be issued on 20.07.2018. Undeniably, after issuance of such advertisement, the respondents have offered appointment to Sumta and Kundani on 18.10.2018. According to this Court, on 18.10.2018 itself, the petitioner ought to have been invited for further process of selection. 22. It was clearly a fault of the respondents, for which the petitioner cannot be deprived of her rights. 23. Present case is not one of operating the Waiting List. It is a case where the respondents have not taken into account the post that was kept vacant and which later became available on 04.06.2018 (consequent to rejection of Punni Devi's representation). Had the respondents borne in mind that the seat of Punni Devi had become available/vacant, perhaps petitioner being 3rd in Waiting List would have been called for document verification on 18.10.2018 itself. The petitioner cannot be denied her due right simply because the respondents were negligent. 24. The argument of Mr. Bissa that no appointment can be given to the petitioner as fresh recruitment notification dated 20.07.2018 has been issued is also not tenable. The petitioner cannot be denied her due right simply because the respondents were negligent. 24. The argument of Mr. Bissa that no appointment can be given to the petitioner as fresh recruitment notification dated 20.07.2018 has been issued is also not tenable. The principle that Waiting List/Reserve List cannot be operated after beginning of fresh selection process is based on the hypothesis that the post(s) which remained vacant has/have been included in the subsequent recruitment process. At least in the present case, it lies ill in the mouth of the respondents to contend so. Because after issuance of the advertisement dated 20.07.2018, they have issued letter/order dated 18.10.2018 and called as many as 12 candidates (out of which 2 were Female candidates) for further selection process. As such the seats that have been notified by the advertisement dated 20.07.2018 cannot presumably include the post that have remained vacant out of the recruitment of 2015. 25. The present writ petition is, therefore, allowed. 26. The respondents are directed to invite the petitioner for further process, against the seat of OBC. If the petitioner is found eligible as (OBC-non creamy layer) and otherwise suitable, she shall be offered appointment. 27. For the purpose aforesaid, the respondents shall change the category of Kundani from OBC Female to General Female. 28. The needful be done within a period of 12 weeks from today. 29. In case found eligible, the petitioner shall be given appointment notionally with effect from 18.10.2018. She shall be entitled for actual benefits on her joining or 01.08.2023, whichever is earlier. 30. The stay petition and other applications stand disposed of.