Rajesh Choudhary S/o Ganga Ram Choudhary vs The State of Rajasthan

1) An advertisement was issued on 26/11/2011 inviting

applications from eligible candidates to fill up 1010 posts of

Pharmacists. A corrigendum was issued on 30/12/2011 notifying

that the number of vacancies to be filled up would be 1478.

2) The examination was conducted by the Rajasthan

University of Health Sciences. Result of the examination was

prepared on 29/06/2012 and notified on 21/07/2012. Based on

the merit list letters offering appointment to candidates were

issued. Litigation ensued. The model answer-key was questioned

with respect to some questions and a batch of writ petitions was

filed in this Court, lead matter being SBCWP No.311/2014 :

Umesh Singhal Vs. State of Rajasthan & Ors. Before the learned

Single Judge it was represented that out of 1478 posts letters

offering appointment were issued to 1402 candidates and thus 76

vacancies remained.

3) The writ petitions were disposed of on 05/03/2014 with

a direction to the respondents to consider the objections and such

answers which needed corrections be corrected and fresh merit

list be prepared. However, pertaining to the candidates to whom

letters offering appointment were issued and upon accepting the

same had joined and were working, in view of the law declared by

the Supreme Court in the decision reported as AIR 2013 SC

2652 : Rajesh Kumar & Ors. Vs. State of Bihar & Ors. a direction

was issued that these appointments would not be invalidated

merely because upon revaluation the appointed candidates were

awarded lesser marks and in the revised select list their names

were ousted. But, those candidates would be placed at the bottom

of the seniority list.

4) After revaluation was done and questions were

corrected revised merit list was notified. Another round of

litigation ensued. Finding that candidates who had obtained less

marks as per the revised merit list were retained in service, the

candidates who found themselves in the merit list at Sr.No.1478

and above questioned they not being offered appointment, and

needless to state the second round of litigation resulted in an

order being passed on to the effect that in view of the expressed

exception carved out for candidates who were offered

appointment pursuant to the original merit list prepared, no relief

could be granted to the writ petitioners only on the basis that in

the revised merit list candidates who had obtained less marks

than them were retained, notwithstanding that these candidates

had been awarded more marks when the original merit list was

prepared.

5) But, the respondents had proceeded to cancel letters

offering appointment to 132 candidates who on the basis of the

first merit list prepared were granted appointment and had

worked for two years. These candidates approached this Court at

the Principal Seat at Jodhpur. Vide decision dated 11/09/2015 a

learned Single Judge of this Court saved the appointment of the

said 132 candidates in view of the exception carved out in Umesh

Singhal''s case.

6) The position therefore which boils down is that at the

time when Umesh Singhal''s writ petition was decided on

05/03/2014 it was informed to the court that against the 1478

posts to be filled up letters offering appointment were issued to

1402 candidates and only 76 vacancies remain. Meaning thereby,

if all 1402 candidates to whom letters offering appointment were

issued pursuant to the first merit list prepared, had accepted and

joined, with reference to the revised merit position, only 62

candidates in order of merit from the second list i.e. the revised

list could be appointed.

7) The appellants in the above captioned appeals claimed

in writ petitions filed by them that 1770 posts were available when

the advertisement was issued and thus 1770 posts should be filled

up and not what were notified.

8) On 12/04/2017 in a writ petition filed at the Principal

Seat of this Court at Jodhpur being SBCWP No.14654/2016 :

Mahipal Singh Bhati Vs. State of Rajasthan & Ors. the learned

Single Judge directed that since recruitment in question pertained

to the recruitment year 2011, only those vacancies which were yet

to be filled up pertaining to said year had to be filled up.

Reference of vacancies for the year 2013 was noted and held by

the learned Single Judge as not available to be filled up for the

vacancy year 2011. The learned Single Judge went into the

controversy whether 411 posts out of 1209 advertised on

26/02/2013, for the year 2013 as a matter of fact related to the

vacancies for the year 2011, and held this not be so.

9) Orders impugned in the instant appeals have been

passed by the learned Single Judge in light of the decision dated

12/04/2017 directing that for the year 2011 only 1478 notified

vacancies have to be filled up and that the respondents would

carry out an exercise to determine as to how many candidates

offered appointment pursuant to the first merit list prepared had

accepted and joined. Said candidates would not be disturbed.

Their appointments would continue. Apart from 62 vacancies out

of 1478 for which no letters offering appointment were issued,

such additional vacancies which would be available on account of

either candidate not accepting letter of offer or having accepted

letter of offer had left service would be filled up.

10) Learned counsel for the appellants could not show any

material to us as to the exact number of vacancies available out of

1478 which were notified for the year 2011 which remain to be

filled up. Similarly, learned counsel for the respondents could also

not throw any light on said aspect.

11) As regards the issue raised by the appellants that

people lower in merit than them in the revised merit list have

been retained in service and thereby a vested right in the

appellants who are higher in merit in the second select list, has

been violated is concerned, in view of the decision in Umesh

Singhal''s case which is based on decision of the Supreme Court,

the argument is rejected. Thus, of the 1478 notified vacancies

such number have been occupied by candidates as per the merit

position in the first select list notified on 21/07/2012 is concerned,

the same cannot be upset. Such vacancies for said year which

remain unfilled as of today, be it because of letters offering

appointment not issued to all selected candidates when the merit

list was prepared or on account of some of the candidates not

accepting letter offering appointment or some having joined and

resigned thereafter would require to be filled up in view of the

various directions issued in judicial verdicts and as noted

hereinabove.

12) Declaring as above, we dispose of the appeals directing

the respondents to work out how many posts out of 1478 notified

for the year 2011 remain unfilled as of today and by unfilled we

mean those posts for which candidates who were offered

appointment did not join or after joining resigned or left service.

All of them would be treated as vacant posts. The exercise shall

be completed within six weeks from today. Thereafter, the

mandamus issued by the learned Single Judge in Umesh Singhal''s

case shall be complied with.