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Judgment
Arun Bhansali, J
S.B. Civil Writ Petition No. 8845/2021
This writ petition has been filed by the petitioners aggrieved against the denial of appointment to the post of Senior Teacher (Maths) in TSP area on account of non-operation of reserve merit list dated 28.5.2020 (Annex.6) pursuant to the advertisement dated 29.3.2018 (Annex.1). Further direction has been sought to operate the reserve list prepared on 28.5.2020 (Annex.6) for appointment on the vacant post of Senior Teacher (Maths) for TSP area.
It is inter alia indicated in the writ petition that vide advertisement dated 29.3.2018 pertaining to the post of Senior Teacher (Sanskrit Education) in subject Maths, 10 posts for subject Maths in TSP area were advertised. Out of 10 posts, 5 were General, one was reserved for General Female, 3 for S.C., one for S.C. Female with horizontal reservation for 1-LD/CP and one for Ex-Serviceman. The petitioners being eligible applied for the same and after undergoing recruitment process, provisional list of candidates for eligibility checking was published on 22.11.2019 (Annex.3), wherein roll numbers of petitioners appeared. The petitioners were called for counselling by communication dated 23.1.2020.
The RPSC Published the final list for all subjects on 28.5.2020 (Annex.5) and on the same date i.e. 28.5.2020 reserve list (Annex.6) was also published, wherein, for TSP area, the petitioner – Nishant Gamot was placed at merit no.5, Bhupesh Patidar at merit no.1 and Bharat Kumar Meena at merit no.3.
By Circular dated 30.7.2020, those included in the final list were called for document verification and for subject Maths, 26.8.2020 was fixed. Out of the 10 candidates for subject Maths TSP, called for document verification, 7 candidates did not appear for document verification. On 15.9.2020, by issuing a Circular, those who remained absent during previous counselling were given last chance and for subject Maths, 24.9.2020 was fixed. However, again the said 7 candidates did not appear for document verification.
On 19.10.2020 (Annex.10), despite the fact that 7 candidates did not appear for document verification on two occasions, the said 7 candidates were issued appointment orders, wherein, they were granted time to join till 2.11.2020, failing which, it was indicated that the appointment/posting orders would stand cancelled. However, the 7 candidates did not join. On 11.11.2020 (Annex.11), the respondents passed order regarding said 7 candidates that their appointments have been cancelled.
On 24.11.2020 (Annex.12), the respondents sent an information to the RPSC indicating that as 7 candidates have not joined pursuant to their selection, names of candidates from reserve list be sent.
It is indicated in the petition that despite the requisition made by the Department, the RPSC did not operate the reserve list for TSP area, however, for non-TSP area, in similar circumstances, the reserve lists were operated. The petitioners made representations before the Department as well as before the RPSC, however, the same were not responded.
Based on the above submissions, the prayers, as indicated hereinbefore, were made.
Reply to the writ petition has been filed by respondent – Department inter alia indicating that on part of the Department, the RPSC was informed about non-joining of 7 candidates and they were required to send names from the reserve list, however, the same were awaited.
The RPSC filed its response inter alia indicating that as per the Circular dated 19.7.2001 issued by the Government of Rajasthan, the RPSC is empowered to operate or give effect to the reserve list within a period of six months from the date of forwarding of the main list by the Department, however, as in the present case the recommendation was sent on 1.6.2020 by the RPSC, the period of six months came to an end on 30.11.2020. The communication sent by the Department dated 24.11.2020 (Annex.12) was received by the RPSC on 25.11.2020. Whereafter, there was only one working day left i.e. 26.11.2020 as from 27.11.2020 to 30.11.2020 the office of the RPSC was closed due to holidays and as by then, six months had passed, the names from the reserve list could not be sent. The Circular dated 19.7.2001 and communication in this regard sent on 8.9.2021 have been filed as Annex.R.3/1 and R.3/2, respectively.
Further submissions have been made that qua non-TSP area, the recommendations were made in parts and from the last recommendation six months had not expired and, therefore, the names from the reserve list were sent, which is in consonance with the relevant circular and as such, the petitioners are not entitled to raise any grievance based on the said aspect.
Learned counsel for the petitioners made vehement submissions that action of the Department and that of the RPSC is ex facie illegal and the same has resulted in depriving eligible meritorious candidates from getting appointment. Submissions have been made that out of 10 posts advertised by the RPSC, from the final select list of 10 candidates, 7 candidates did not turn up for document verification on 26.8.2020, the date fixed for the purpose. They were given one last opportunity and were called for document verification on 24.9.2020 and despite the fact that they did not turn up, they were issued orders of appointment on 19.10.2020, the said 7 candidates even on appointments being issued, did not join till the last date i.e. 2.11.2020 and only then their appointments were cancelled on 11.11.2020 and thereafter requisition was sent to the RPSC on 24.11.2020 to send the names from the reserve list.
It is submitted that the action of the respondents in issuing the orders of appointment on 19.10.2020 to those, who had not appeared despite giving of last chance for document verification on 24.9.2020, was ex facie illegal as immediately on the candidates not appearing for document verification despite giving of last chance, their appointments should have been cancelled and requisition should have been sent to the RPSC for sending names from the reserve list, however, the Department failed and cancelled the selection on 11.11.2020 and, thereafter also after 13 days, sent the requisition to RPSC on 24.11.2020. The RPSC despite receiving the requisition within time, only on account of the fact that action was not taken by it in time, is now seeking to hide behind the plea that the reserve list has expired, which cannot be permitted.
Submissions have been made that as the petitioners are meritorious candidates and were at merit no.1, 3 and 5 in the reserve list and 7 posts remained vacant, there was no reason for the respondents to deny them appointment. It is submitted that for the wrong / illegal action of the Department in delaying the cancellation of defaulting candidates and sending the requisition to the RPSC, cannot take away the rights of the petitioners. Further, once the RPSC received the requisition in time, despite knowing fully well that list would expire on 30.11.2020, not taking any action by it on the said requisition, also cannot be used against the petitioners for depriving them appointments.
Reliance has been placed on judgments in State of Jammu & Kashmir & Ors. v. Sat Pal : (2013) 11 SCC 737, Ravindra Purohit v. State of Rajasthan & Ors.: S.B. Civil Writ Petition No.1781/2015, decided on 4.8.2015 at Jaipur Bench and Purushottam v. Chairman M.S.E.B. & Anr.: (1999) 6 SCC 49.
Learned counsel for the respondent – State made submissions that as the Public Interest Litigation (‘PIL’) seeking appointment on the vacant posts in Sanskrit Education was pending consideration before the Division Bench, the respondents were forced to make attempts ensuring that those issued appointments join on the posts, therefore, besides giving one more opportunity for document verification, despite not appearing for document verification, they were issued orders of appointment, however, as soon as the candidates did not join within time prescribed in the orders of appointment, their appointments have been cancelled and requisition was sent to the RPSC, which was within six months from the date of recommendation i.e. 1.6.2020, however, the RPSC did not sent the names from the reserve list.
Further submissions have been made that after the said recruitment of 2018, another recruitment has been initiated by advertisement dated 18.5.2022, wherein, 5 posts for subject Maths were advertised and the said recruitment has also concluded, wherein also, two candidates have joined and further requisition has been sent to the Education Department for filling up the vacant posts. It is submitted that as the Recruitment, 2018, is long over, the petition be dismissed.
Learned counsel for the respondent – RPSC made submissions that the requisition from the Department dated 24.11.2020 was received on 25.11.2020 and from 27.11.2020 till 30.11.2020 there were holidays, therefore, the RPSC had only one day i.e. 26.11.2020, within which, the names from the reserve list could not be sent to the Department and as in terms of the proviso to Rule 26 of the Rules of 2015, the reserve list had expired, the names could not be sent.
Submissions have been made that the stipulation made in the Circular of State Government dated 19.1.2001 is very clear that mere receiving of the requisition within prescribed period, is not sufficient and if the Commission is unable for any reason to forward the names from the reserve list to the concerned Department within prescribed period of six months, the Commission has been debarred from recommending any names from the reserve list and as such, the names could not be sent.
Further submissions have been made that the plea raised regarding recommending names of non-TSP area after expiry of six months, has no substance as the period of six months is required to be calculated from the last recommendation made and as in those cases, the recommendations were made in part, from the last recommendation, names from reserve list were recommended and, therefore, on that count the plea raised has no substance. It was prayed that the writ petition be dismissed.
Learned counsel for the petitioner in rejoinder made submission that merely because a subsequent recruitment has taken place by itself cannot take away the rights of the petitioners as has been laid down in the case of Ravindra Purohit (supra). Further submissions have been made that the respondents have been functioning in a totally arbitrary manner, inasmuch as, despite the fact that 7 posts pursuant to the Recruitment, 2018, were vacant, in the advertisement dated 18.5.2022 only 5 posts were advertised and that also in the category of 3 unreserved and 2 S.T. and even today as per the respondents’ own assertion, out of said 5 posts, 3 posts are lying vacant.
It was submitted that how the 7 vacant posts from advertisement, 2018, came to be reduced to 5 posts in advertisement, 2022, has not been explained and as admittedly posts are lying vacant with the respondents in petitioners’ category., they are entitled to be accorded appointment.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A perusal of the sequence of events as noticed hereinbefore clearly reveals the arbitrary and illogical functioning on part of the respondent – Department, rather the functioning has been wholly contrary to the settled practice. When after publication of the final list and the RPSC recommended the names on 1.6.2020 for 10 posts, after gap of about 3 months on 26.8.2020, the document verification of the candidates was done and 7 recommended candidates remained absent, the Department ordinarily should have cancelled their selection on 26.8.2020 itself, however, after a gap of 20 days, on 15.9.2020 again the absent candidates were called for document verification on 24.9.2020. On the said date also, the said 7 candidates did not turn up and most surprisingly and in outright arbitrary and illegal manner, the Department issued orders of appointment even in absence of document verification by the 7 candidates, again after a lapse of 25 days on 19.10.2020, to the candidates including the absentees at the document verification and they were given time to join till 2.11.2020. When on 2.11.2020 also, the said 7 candidates did not join, after 9 days their appointments were cancelled and thereafter also, after a lapse of 13 days from 24.11.2020 the requisition was sent to the RPSC for sending recommendations against the post of non-joiners from the reserve list. No explanation worth the name has been given by the respondents as to why this extraordinary procedure in issuing orders of appointment to candidates, who had not appeared for document verification despite giving two chances, has been adopted by the respondents.
The attempt made to claim that on account of pending PIL regarding vacant posts in Sanskrit Education, the same was done, on its face is a lame excuse as the pendency of the PIL cannot be a ground in indulging in absolute illegal practice.
As a result of wasting of time, at least from 24.9.2020 till 24.11.2020 i.e. two full months when the requisition was sent to the RPSC, the petitioners who had no role and/or inkling of the wrong doing on part of the Department, are sought to be deprived of seeking/getting appointment.
Even when the requisition was sent on 24.11.2020 and the same was admittedly received by the RPSC on 25.11.2020 and the officers of the RPSC were well aware of the fact that list would expire on 30.11.2020 and that there are holidays from 27.11.2020 to 30.11.2020, the RPSC also chose to sit tight over the matter, when on 26.11.2020 it could have sent the recommendation to the Government from the reserve list, oblivious of the fact that they were depriving meritorious candidates from getting appointment.
On the one hand, the State has sought to make submissions that on account of PIL being pending before this Court they were making attempts that the selected candidates join, on the other hand, once on 2.11.2020 the last date of joining by the candidates expired, still the Department took 22 days in sending the requisition to RPSC after cancelling the appointments on 11.11.2020, which clearly shows that the purported plea of making of attempts to appoint teachers is only a ruse and has no substance.
The respondent – Department has also failed to clarify as to how when 7 posts remained vacant on account of non-joining pursuant to Recruitment, 2018, in Recruitment, 2022, the posts were reduced to 5 and therein also, only two candidates have joined, leading to resultant position that at least two posts pertaining to Recruitment, 2018, which were not re-advertised in 2022, remained vacant and even pursuant to Recruitment, 2022 also, 3 posts are lying vacant with the respondents and in all 5 posts are lying vacant with the respondents.
Qua the plea raised by the RPSC that despite receipt of requisition from the Department on account of provisions of Rule 26 of the Rules of 2015 and Circular dated 19.7.2001, they could not / cannot make the recommendation, the issue has been exhaustively dealt with by a Coordinate Bench of this Court in the case of Ravindra Purohit (supra), wherein, referring to judgment of Hon’ble Supreme Court in the case of Purushottam (supra), it came to the following conclusion:-
“Aside of the aforesaid, I am of the considered opinion that in terms of the State Government's circular dated 19.07.2001, it was incumbent upon the State Government to push up those in the waiting list during the period of its currency in the event of those in the select list being offered appointment not joining. The reason lies in the fact that by making an offer of appointment to those in the select list, the State Government had taken a conscious decision to make appointments to the number of post advertised and there was no subsequent contra decision not to fill up posts rendered vacant by the non-joining of those in the select list. The State Government failed to act in terms of its own circular dated 19.07.2001 and acted arbitrarily in not operating the waiting list despite vacancies obtaining. I am also of the considered view that circular dated 19.07.2001 to the extent that it provides that once a fresh process of recruitment has commenced, the previous selection process would lapse and remaining vacancies would have to be filled only through the fresh recruitment cannot stand in view of (i) the right of the candidates in the wait list to be pushed up and offered appointment when selected candidates did not join as referred to hereinabove and
(ii) the right of consideration of candidates in the wait list, when those in the select list offered appointment have not joined within the currency of the waiting list which has been recognized by the Hon'ble Supreme Court.
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The question which thus arises for consideration of this Court is as to whether the State Government should in the circumstances be allowed to take advantage of its own wrong and whether the non-interference of this Court, in the facts situation obtaining, would fly in the face of its equitable extraordinary jurisdiction and its duty to interfere ex debito justitiae. I am of the considered view that the rights of the petitioners at serial No.1 in the waiting list of general category and SC category respectively for consideration for appointment in the circumstances detailed hereinabove cannot be destroyed on the assumption that their cause of action arising from the arbitrary inaction of the State Government evaporated with the lapsing of the waiting list. Accepting a contention to the contrary would entail equating the cause of action with the period of waiting list and would be quite untenable as the two are clearly distinct concepts and ideas in law. A cause of action once triggered in law has its own dynamics and proceedings based thereon would be required to be evaluated, aside of their merit, on the issue on laches where the jurisdiction of the constitutional court is invoked under Article 226 of the Constitution of India.
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In my considered opinion, the case law on limiting the rights of those in the wait lists developed with the object of preventing waiting lists becoming a perennial source of recruitment even in respect of vacancies of subsequent years. The object of the Court has never been to stymie the rights of those in the wait list for consideration for appointment on vacancies which were advertised more so when the selected candidates despite offers made by the appointing authority refused to join their posts during the validity of the wait list. It is well settled that those in the waiting list are also selected candidates though lower in the order of merit vis a vis those in the select list. In Gujarat State Dy. Executive Engineers' Association Vs. State of Gujarat & Ors. [1994 Supp (2) SCC 591] the Hon'ble Apex Court held that waiting list as much list of selected candidates as the main select list. Further as held by the Hon'ble Apex Court in Asha Kaul (Mrs.) (Supra) those selected after due process cannot be abandoned by the appointing authority on its whims and caprice without any good reason being proffered. I am of the considered view that non-appointment of the petitioners in the waiting list—at No.1 of their respective categories, without good reason despite vacancies obtaining to the post in issue is thus palpably arbitrary and contrary to Article 14 of the Constitution of India.
More pointedly, on the issue of appointment of a candidate in the waiting list to a vacant post in the recruitment process to which the waiting list related, the Hon'ble Supreme Court in the case of State of Jammu and Kashmir & Ors. Vs. Sat Pal [(2013) 11 SCC 737] held that even though the waiting list issued in respect of recruitment to the post of Junior Engineer (Civil) Grade-II had expired in May, 2008, yet Sat Pal who had first claimed a right of appointment to the post in issue as highest in the waiting list in the S.C. category in SWP No.1156/2009, was entitled to appointment as to deny appointment would be “a denial of a legitimate claim of an innocent citizen.” It was consequently directed that the respondent-Sat Pal be appointed to the post of Junior Engineer (Civil) Grade-II.
It cannot also be denied that it is the duty of the Courts to do justice and for the purpose where warranted invoke equity. Invoking equity, the Hon'ble Supreme Court in the case of RBF RIG Corporation, Mumbai Vs. Commissioner of Customs (Imports), Mumbai [(2011) 3 SCC 573] held that the guiding principle in the adjudication of all cases before the Court is the promotion of justice and the prevention of injustice. A similar view has been taken by the Hon'ble Supreme Court in Food Corporation of India & Anr. Vs. Seil Ltd. & Ors. [(2008) 3 SCC 440].
The State Government cannot be allowed in its naked arbitrariness to decide as to when or when not to operate a waiting list. In the instant case, the waiting list was operated in respect of the same advertisement in the case of a Lecturer in the subject of Physics. That aspect of the matter was suppressed by the State Government in its reply to the writ petition and has only been brought to the notice of this Court by the counsel for the petitioner and remained unrebutted.
Consequently, both the writ petitions are allowed. The respondents are directed to send a requisition to the RPSC for appointment of the petitioners to the post of Lecturer Civil Engineer in general category and S.C. category respectively within a period of ten days from the receipt of a certified copy of this order. On receipt of the requisition, RPSC is directed to make recommendation in term of the merit position of the petitioners in the waiting list in their respective category within a period of ten days following. On receipt of recommendation and on verification necessary as per the practice of the State Government and on the petitioners then being found eligible, they be considered for appointment on the post of Lecturer Civil Engineer within fifteen days thereafter.”
In view of the law laid down above and in the fact situation, as in the present case the petitioners have been deprived of their right to a fair consideration on account of wholly arbitrary and illegal action of the Department on account of delay in sending its requisition to RPSC only on account of its illegal and arbitrary action in offering appointment to those, who did not participate in document verification, and the RPSC on account of its inaction, despite being fully alive to the fact of the reserve list getting expired, failed to make the recommendations within time, the writ petition is allowed.
The RPSC is directed to make recommendation in terms of the merit position of the petitioners in waiting / reserve list in their respective categories pursuant to the requisition sent by the Department dated 24.11.2020 within a period of 10 days from the date of this order.
On receipt of recommendation and on verification necessary as per the practice of the State Government and on the petitioners being found eligible, they be considered for appointment on the post of Senior Teacher (Maths) within a period of 15 days thereafter.
The petitioners would be entitled to all consequential benefits similar to those appointed pursuant to the Recruitment, 2018, however, they would be entitled to monetary benefits from the date they join, in case they are found eligible.
S.B. Civil Writ Petition No. 1701/2023
In view of the order passed in S.B. Civil Writ Petition No. 8845/2021, the present writ petition has been rendered infructous.
The same is, therefore, dismissed as having become infructuous.