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Judgment
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.