Narendra Sharma and Others vs State of Rajasthan and Others

M.N. Bhandari, J.—1. An advertisement was issued on 14.12.2011 inviting applications for appointment to the posts of Physical Training Instructor Gr II and Gr III. The candidates were permitted to apply for both the posts i.e. PTI Gr II and PTI Gr III and, accordingly, a common selection test was conducted by the Rajasthan Public Service Commission (for short ''the Commission''). The select list was, however, issued separately. The names of many candidates were found in the merit list of both the posts. The candidates whose names were included in the select list for the post of PTI Gr II and PTI Gr III, opted for the post of PTI Gr II being higher post. Resultantly, many posts of PTI Gr III could not be filled from and amongst those candidates who opted for the post of PTI Gr II.

The grievance of the petitioners is against the government in not filling the left out posts of PTI Gr III in order of merit since selected candidates did not join the post. The prayer is made to allow the petitions with a direction to the respondents to fill the left out vacancies from and amongst the candidates in wait/reserve list.

Mr. S.K. Gupta, Additional Advocate General, appearing for the State Government, submits that the writ petitions are not maintainable as they were filed after expiry of life time of the panel. Reference of rule 20 of the Rajasthan Education Subordinate Service Rules, 1971 has been given where life time of the panel is of six months. The period has already expired thus petitioners are not entitled for appointment.

He further submits that a direction to apply wait list cannot be given in all circumstances. It can be when a candidate offered appointment did not join the post. The reference of the judgment of this court in the case of "Smt. Kalpana Sharma & ors versus The Government of Rajasthan & ors", SB Civil Writ Petition No. 13292/2014, decided on 1.5.2015 at Jaipur Bench has been given. It is submitted that the wait list can be operated at the discretion of the government hence, for the aforesaid reason also, petitioners are not entitled for appointment.

It is lastly contended that after recruitment in question, further selection on the posts in question has already been made thus those left out vacancies in the present selection must have been merged in the subsequent selection. For the aforesaid reason also, petitioners are not entitled to the relief sought for.

I have considered rival submissions of the parties and perused the record.

It is not in dispute that a common selection for the posts of PTI Gr II and PTI Gr III has been made by the non-petitioners. It is for the reason that candidates were allowed to apply for both the posts. The consequence of the aforesaid was that after appearing in the common selection test, when the result was declared, many candidates could find place in the select list of both the posts. The non-petitioners offered appointment but the candidates selected for both the posts, opted for the post of PTI Gr II thus did not join the post of PTI Gr III. The prayer is to fill the posts of PTI Gr III remained vacant due to non-joining of selected candidates.

Learned Additional Advocate General has raised three objections. The first is that writ petitions are not maintainable having been filed after life time of the panel. Reference of rule 20 of the Rules of 1971 has been given.

I find that final select list was issued on 26.8.2013 and some of the writ petitions were filed before expiry of life time of the panel. Even if the list earlier issued is taken into consideration, it was on 28.6.2013 and if the date of institution of some of the writ petitions is considered, it was within life time of the panel. It is settled law that writ petition cannot be thrown if filed within life time of the panel. The issue does not come to an end here because a further revised result for the same selection was issued on 16.12.2014 thus life time of the panel is to be counted from the date of the last select list. If it is taken into consideration, the first argument raised by learned Additional Advocate General cannot accepted as the writ petitions were filed within the life time of the list. It is settled law that a petition filed during life time of the panel would be maintainable even if during pendency of the writ petition, life time of the panel expires.

The second objection raised by learned Additional Advocate General is regarding utilisation of wait list. It is stated that wait list can be utilised only at the discretion of the government, that too, when candidate, offered appointment, did not join the post.

The aforesaid argument has also been considered. It is a peculiar case where selection against two posts of PTI Gr II and PTI Gr III was common but result was declared separately. The names of many selected candidates exist in both the select lists. As a consequence of it, offer of appointment goes for both the posts to one and the same candidate also, who was declared successful for both the posts. In that situation and as stated, candidates selected for both the posts, opted for the post of PTI Gr II and did not join the post of PTI Gr III. In those circumstances, the candidate next in the merit for the post of PTI Gr III, gets entitlement for appointment. It was expected of the State Government to prepare the list of PTI Gr III after taking option from the candidates who have been selected for both the posts and, whoever opted for the post of PTI Gr II, then after removing his name for the post of PTI Gr III, to prepare list to the size of the posts.

In any case, the government was expected to offer appointment to the next meritorious candidate against those posts, where the candidate common in both the lists, did not join the post of PTI Gr III. Accordingly, I do not find any illegality if a direction is given to offer appointment to the next meritorious candidate against left out posts in peculiar facts of the case.

It is clarified that left out posts should not mean the posts which occurred from a candidate who initially joined the post of PTI Gr III and thereafter resigned or left the services for some reason but would be considered against those posts on which a selected candidate did not join. The wait list candidate get right of appointment against the post when a candidate did not join. It does not remain to be at the discretion of the government.

The last objection is in reference to subsequent selection initiated by the non-petitioners. The subsequent selection has no effect on the prayer made by the petitioners and even to the grievance raised herein. It is not only for the reason that till 16.12.2014 non-petitioners had issued select list after its revision thus finality to the selection in question was not made till 16.12.2014, rather, even on 14.12.2014 revision of result was provisional thus finality to the list would be made in future. For the next selection, advertisement was issued in September, 2013 thus it was for the posts occurred after the selection initiated in the year 2011 i.e. selection in question. The subsequent selection is thus for the vacancies after the advertisement dated 14.12.2011. Hence, subsequent selection cannot have effect on the claim made by the petitioners herein.

It is not a case of the State Government that the posts which could not be filled pursuant to the selection of the year 2011 were added in the subsequent selection though theory of merger was argued but cannot be accepted.

In view of above, none of the objections raised by learned Additional Advocate General can be accepted in the facts and circumstances of the case and in view of the discussion made above.

As an outcome, all the writ petitions are allowed with direction to the respondents to fill those posts of PTI Gr III, which are not occupied by the candidates found place in the select list to the post of PTI Gr II also. The direction would be completed within a period of three months from the date of receipt of copy of this order. The appointment on the left out posts, as explained in the judgment, would be made strictly in order of merit and considering different categories for which recruitment has been made. Since all the petitioners were lower in merit to the candidates given appointment, they will have no other claim which includes seniority etc from the date of appointment of meritorious candidates.