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Judgment
Considering that the present batch of writ petitions entails an interwoven controversy and identical factual narratives, the petitions have been clubbed together with the consent of the learned counsel for the respective parties and are being adjudicated by way of this common judgment and S.B. Civil Writ Petition No. 4474/2019 titled Sushil Kumar Agarwal & Ors. v. State of Rajasthan & Ors. is taken as the lead petition. It is cautiously made clear that the ratio decidendi rendered herein shall apply mutatis mutandis to the connected batch of petitions.
The present batch of writ petitions has been filed invoking the extraordinary writ jurisdiction of this Court, praying for a direction upon the respondents to accord appointments to the petitioners on the purportedly vacant posts of Pharmacist pertaining to the recruitment year 2011, alongside all consequential benefits from the date of appointment of alleged lesser meritorious candidates, with the following prayers:
“(i)By an appropriate writ, order or direction, any order direct the respondents to give appointment to the petitioners on the vacant post for the year 2011 for the post of pharmacist with all consequential benefits and from the date of appointment of the lesser meritorious and appointed candidates and other similarly situated persons.
(ii)Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners.
(iii)Writ petition filed by the petitioners may kindly be allowed with costs.”
FACTUAL MATRIX OF THE LIS AT HAND:
Before adverting to the rival submissions and entering upon the realm of arguments advanced by the learned counsel for the respective parties, it is considered apposite to delineate the factual background and the circumstances, in a nutshell, which have culminated in the present adjudication.
The overarching factual matrix enveloping the lis reveals that the respondent-Department issued an advertisement dated 26.11.2011 for 1010 posts of Pharmacist. Subsequently, vide a corrigendum dated 30.12.2011, the notified vacancies qua the said post were increased to 1478.
It is pertinent to note that the petitioners earlier filed a writ petition bearing S.B.CWP No.9108/2016, which was adjudicated by the Co-ordinate Bench of this Court at Principal Seat, Jodhpur vide order dated 20.04.2017 (Annexure-11), whereby relying upon the ratio encapsulated vide order dated 12.04.2017 in S.B. CWP No.14654/2016 titled Mahipal Singh Bhati v. State of Rajasthan & Ors., the Court directed the respondents to calculate the vacant seats and give effect to the same in pursuant to the select list, if so finalized, in accordance with the law.
It is further pertinent to note that the matters of the similarly affected persons as that of the present petitioners have also traveled to the Hon’ble Supreme Court in the year 2018 by way of an SLP titled Lalit Pareek & Ors. v. State of Rajasthan & Ors. in SLP(C) Diary No. 9042/2018, wherein the Hon’ble Supreme Court directed the respondents to complete the recruitment process expeditiously.
Thereafter, upon alleged non-compliance of the order dated 12.04.2017, a contempt petition was filed by the petitioners before the Division Bench of this Court, which came to be withdrawn vide order dated 18.01.2019 with liberty to file substantive writ petitions qua the vacant posts of Pharmacist, if the need so arose. Thence, in light of the order dated 18.01.2019, the petitioners have invoked the extraordinary writ jurisdiction of this Court in the instant round of litigation.
SUBMISSIONS ADVANCED BY COUNSEL FOR THE PARTIES:
Learned counsel for the petitioners unanimously and unequivocally argued that the respondent-Department has illegally denied appointments despite the existence of vacancies. Relying upon information in the year 2019 obtained under the Right to Information Act, 2005, it was submitted that the Joint Director, Department of Medical & Health, Jaipur, Rajasthan admitted that 55 seats were lying vacant qua the said post, and approximately 30 individuals were selected for the post of Drug Controller Officer.
It was further submitted that pursuant to the order dated 15.01.2026 passed by the Co-ordinate Bench of this Court, the respondents were directed to file a specific affidavit on four factual aspects, qua which an additional affidavit has been brought on record stating that a total of 55 candidates either did not join the services or left the services after joining.
It is next submitted that vide affidavit dated 27.02.2026 filed by the Director (Non-gazetted), Medical & Health Services and Family Welfare Department, Government of Rajasthan, in compliance with the order dated 15.01.2026 and 24.02.2026 passed by this Court, it was averred that approximately 23 persons have resigned during the pendency of the lis, thereby leaving 23 posts still vacant as on the date of filing such affidavit.
Per contra, learned counsel for the respondents vehemently opposed the present petitions and relying upon the additional affidavit dated 27.02.2026 filed by the Director (Non-gazetted), Medical & Health Services and Family Welfare Department, Government of Rajasthan, it was categorically submitted that against the 1478 advertised posts, as many as 1416 candidates were accorded appointments, and the remaining posts constituted backlog vacancies.
It was brought to the attention of this Court via Annexures-A & B annexed with the said affidavit that 23 candidates failed to join the post, and 32 candidates resigned post-joining. However, owing to a revised merit list stemming from the orders dated 05.03.2014 and 09.05.2014 passed by this Court (Annexures-C & D), 132 candidates were retained in service.
Learned counsel highlighted that vide a subsequent advertisement dated 26.02.2013 for 1209 posts of Pharmacist, the respondent-Department, acting on administrative prudence, kept 411 posts reserved. This embargo ceased to operate in light of the judgment in Mahipal Singh Bhati (supra) and the order dated 12.04.2017, which permitted the respondent-Department to proceed. To demonstrate the complete exhaustion of posts, a break-up of 1564 filled seats was placed on record in para 14 of the affidavit dated 27.02.2026 which is reproduced as under:-
| S.No. | Order Dated | No. of Posts |
|---|---|---|
| 1. | Order dt. 08.08.2013 | 1343 |
| 2. | Order dt. 13.09.2012 | 24 |
| 3. | Order dt. 27.11.2012 | 34 |
| 4. | Order dt. 19.12.2012 | 1 |
| 5. | Order dt. 05.07.2013 | 1 |
| 6. | Order dt. 08.08.2013 | 13 |
| 7. | Order dt. 24.02.2015 | 132 |
| 8. | Order dt. 27.05.216 | 3 |
| 9. | Order dt. 19.09.2016 | 12 |
| TOTAL | 1564 | |
It was stoutly contended that as per the settled position of law, candidates do not acquire an indefeasible right to appointment beyond the notified vacancies, and the Hon’ble High Court cannot issue such mandamus.
Moreover, it was submitted that third-party rights have accrued, fresh recruitments have been undertaken, and no vacancy exists as on date, and therefore, the present batch of writ petitions is liable to be dismissed at the threshold itself.
DISCUSSIONS AND ANALYSIS:
Having heard and considered the contentions advanced by the learned counsel representing the respective parties and upon a meticulous scanning of the material available on record, this Court proceeds to adjudicate the lis in question.
The nitty-gritty of the dispute at hand pertains to a recruitment exercise for the post of Pharmacist originating in the year 2011. Upon a perusal of the affidavit dated 27.02.2026 filed by the respondent-Director (Non-gazetted), Medical & Health Services and Family Welfare Department, Government of Rajasthan, it is unequivocally clear that 1564 seats qua the said post were duly filled and that the vacancies arising out of subsequent resignations or non-joining were already considered by the respondent-Department as also enumerated by the Division Bench of this Court at Principal Seat, Jodhpur, vide order dated 22.10.2021 passed in D.B. Writ Contempt No. 391/2020 titled Arun Choudhary v. Dr. K.K. Sharma & Ors.
This Court observes that the retention of 132 candidates owing to the revised merit list was kept intact by the respondent-Department. Withal, the 411 seats kept reserved qua the 2013 recruitment were also operated in light of the directions passed by the Coordinate Bench of this Court at the Principal Seat, Jodhpur, vide order dated 12.04.2017 in the case of Mahipal Singh Bhati (supra).
This Court finds that neither did any vacancy exist qua the post in question on the cut-off date in 2017, nor does any vacancy qua the said post subsist as on date.
Albeit the petitioners claim entitlement to the said post, this Court is of the considered view that the merit of the petitioners does not fall within the 1564 filled seats as of the cut-off date.
This Court is further of the view that as per the settled proposition of law, vacancies arising out of subsequent resignations cannot be considered as vacant posts for the purpose of operating older lists; rather, the same constitute future vacancies which are supposed to be filled by way of the backlog vacancies in the subsequent recruitment.
It is a well-settled position of law that inclusion in a select list does not confer any indefeasible right to appointment. The Hon'ble Supreme Court in the recently enunciated dictum of Shailendra Kumar Patel v. State of Chattisgarh & Ors., 2026 INSC 902, categorically held that the mere inclusion of a candidate's name in the selection list does not create a vested right to appointment. The relevant extracts of the said dictum are reproduced as under:-
"43.It is settled law that a recommended candidate does not have an indefeasible right to appointment and the Appointing Authority retains certain discretion in the matter of appointments. The mere inclusion of a candidate's name in a select list or in a recommendation by the selection body/Commission does not create a vested right to appointment. Selection undoubtedly confers upon the candidate a right to fair, non-arbitrary and equitable consideration for appointment, but it does not by itself crystallise into an absolute right to be appointed to the post.
44.The Constitution Bench of this Court in Shankarsan Dash (supra), while considering the rights of candidates whose names had been included in a select list, authoritatively held as follows:
“7.It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165], Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759], or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899].”
The principle enunciated in Shankarsan Dash (supra) that the State is not bound to fill up any or all vacancies, has consistently been reiterated in subsequent decisions of this Court.
In Commissioner of Police v. Umesh Kumar (supra) this Court reaffirmed that inclusion in a select list does not confer a vested right to appointment. More recently, the Constitution Bench in Tej Prakash Pathak (supra), observed:
“64.Thus, in light of the decision in Shankarsan Das (supra), a candidate placed in the select list gets no indefeasible right to be appointed even if vacancies are available. Similar was the view taken by this Court in Subash Chander Marwaha (supra) where against 15 vacancies only top 7 from the select list were appointed. But there is a caveat. The State or its instrumentality cannot arbitrarily deny appointment to a selected candidate. Therefore, when a challenge is laid to State's action in respect of denying appointment to a selected candidate, the burden is on the State to justify its decision for not making appointment from the Select List.”
45.Therefore, from the above discussion it becomes clear that while appointment pursuant to the Commission's selection would be the norm, the Appointing Authority retains ultimate discretion as to whether to make an appointment, even if the selection process is entirely lawful. The Commission's recommendation does not create any vested right in the recommended candidates to claim appointment. However, in a society based on the rule of law, discretion of the Appointing Authority cannot be absolute or arbitrary; it must be informed by valid and germane reasons and based on the relevant statutory rules."
(emphasis supplied)
In light of the ratio laid by the Hon'ble Supreme Court in Shailendra Kumar Patel (supra), this Court is of the considered view that a recruitment process cannot be kept never-ending, especially when further recruitment, notably in the year 2023, have already taken place and third-party rights have crystallized qua the said post. The jurisprudence laid down by the Hon’ble Supreme Court strictly precludes such unending streams of litigation over a decade-old recruitment process.
CONCLUSION:
In the conspectus of the aforesaid facts, observations, and the legal position as discussed above, this Court is of the view that the petitioners are not entitled to the relief sought for by way of the present batch of writ petitions, and therefore, no adjudication qua the same is warranted by this Court exercising its extraordinary writ jurisdiction as enshrined under Article 226 of the Constitution of India.
Consequently, being devoid of any merits, the present batch of writ petitions stands dismissed.
Pending applications, including stay applications, if any, shall stand disposed of accordingly. No order as to costs.
A copy of the present judgment be placed in each connected petition.