Satya Kant Bhati vs State and Another

R.S. Verma, J.—Two principal contentions have been raised in the writ petition. First contention is based on Proviso to Rule 21 of the Rajasthan Services of Engineers [Building & Road Branch), Rule, 1954. The Rule 21 reads as follows:

Rule 21. Recommendation of the commissions--The commissions shall prepare a list of candidates, whom they consider suitable for appointment to the Services, arranged in order of preference and forward the same to Government:

Provided that the commission may to the extent of 50% of the advertised vacancies keep names of suitable candidates on the keep names of suitable candidates on the reserve list. The names of such candidates may, on requisition, be recommended in the order of merit to the Govt. within six months from the date on which the original list is forwarded by the commission to the Government.

It is urged on the basis of the proviso aforesaid that it was obligatory for the commission to keep names of suitable candidates to the extent of 60% on the reserve list. I do not agree with the submission, because in the main provision, the expression used is "The Commission shall prepare a list," while in the proviso, the expression used is keep names of suitable candidates on the reserve list." The difference in the phraseology in the main provision and the proviso goes to show that proviso was neither meant to be obligatory nor mandatory but left the discretion with the commission to prepare the reserve list.

Shri Lodha, in this regard submits that commission itself had prepared reserve list of certain candidates and therefore it should be assumed or presumed that commission itself has been treating the proviso as mandatory, Suffice it to say, that proviso gives discretion to the Commission to keep names of suitable candidates on the reserve list up to the extent of 50%. Merely because commission has prepared a reserve list, it cannot be said that the provision is mandatory. This contention has therefore no force and deserves to be rejected.

Moreover, a reserve list can be sent by the commission to the Government only within a period of six months from the date of which original list was forwarded by the commission to the Government. Shri Lodha, frankly admits that period of six months has elapsed since the original list was forwarded by the commission to the Government. In view of this fact also this limb of the contention does not survive.

However, a challenge has been raised regarding .determination of vacancies and it has been urged that vacancies were not properly determined. This is a matter to be examined. That writ petition is admitted. .

Issue notices to the respondents.