Vinay Kumar Meena and Others vs Rajasthan Public Service Commission and Others

M.N. Bhandari, J.—With the consent of parties, writ petitions have been heard finally.

By these writ petitions, a challenge is made for filling of the post of Assistant Professor (General Medicine) in excess to the vacancies advertised.

Learned counsel for petitioners submits that RPSC issued an advertisement on 26th November, 2010 for the various posts which includes the post of Assistant Professor (General Medicine). In all, 25 posts were advertised. 14 posts were shown for open category, whereas 3 posts each for SC and ST candidates. 5 posts were kept for OBC. The corrigendum thereafter was issued on 10th October, 2011 wherein total posts were shown to be 35 and out of which 16 posts were kept for open category, whereas six posts for SC and seven posts for ST. Six posts were kept for OBC and two for disabled category. After selection, when appointments were made, it was found to be in excess to the post advertised by the respondents for open category. The action of the respondents to give appointment to nineteen candidates against sixteen vacancies advertised for open category is illegal. It is also stated that subsequent corrigendum issued by the respondents on 1st February, 2012 was not published. The said corrigendum should not have been acted upon by the respondents, rather no reason exists to alter bifurcation of the vacancies among different categories after the corrigendum dated 10th October, 2011. In view of above, prayer made in the writ petitions be granted and accordingly the petitioners finding place in wait list be given appointment against the post meant for SC and ST candidates as per the advertisement dated 10th October, 2011. A reference of judgment of Apex Court in the case of State of Orissa and Another Vs. Rajkishore Nanda and Others etc. etc., has been given apart from judgment of the Apex Court in the case of Mukul Saikia and Others Vs. State of Assam and Others, .

Learned counsel appearing for the respondents have opposed the petitions. It is submitted that advertisement for selection to the post of Assistant Professor in different discipline was issued on 26th November, 2010. The first corrigendum was issued thereupon on 3rd May, 2011 followed by next corrigendum on 10th October, 2011 referred by the petitioners. The last corrigendum was issued on 1st February, 2012. The corrigendums were issued from time to time in view of letters sent by the Government. The last communication in this regard was received on 9th November, 2011. Therein, government had given bifurcation of 35 posts after finding that no backlog vacancy for ST and ST exists thus 5 posts each come to SC and ST and 6 for OBC. The last corrigendum was issued and was not only flashed through electronic media by giving it in ETV but was available on the website of the RPSC. It is incorrect to say that alternation in the post was without due publication.

Learned counsel for the respondents further submit that even as per terms of the advertisement, they were having right to alter the vacancies. Thus, all the candidates were knowing that there could be variation in the vacancies, which can be increased or decreased. It is lastly contended that appointments have not been made in excess to the post advertised by the respondents. Thus judgments (supra), referred by the petitioners do not apply to the facts of this case.

I have considered the rival submissions made by the parties and perused the record.

The facts given above need not to be reiterated other than that there was variation in the vacancies then what was advertised at the first instance. Initially only twenty five posts of Assistant Professor (General Medicine) were advertised in which three posts each were kept for SC and ST category. It was then increased to 35 posts with variation of post for open category and other categories. The final corrigendum was issued on 1st February, 2012 and flashed through electronic media i.e. on ETV and was available on the website of the RPSC. Out of 35 posts, 19 were kept for open category and 5 each for SC and ST category. 6 vacancies were kept for OBC. The appointments have been made as per the last corrigendum issued by the RPSC. It is not that while issuing appointment order, it has been given in excess to the post so advertised by the RPSC. In the light of the aforesaid, judgments (supra), referred by the petitioners, do not apply to the facts of this case. In those judgments, appointments were given in excess to the post advertised by the respondents. Therein, it was held to be illegal as it will take away right of those who may be aspirant for the future vacancies. The case in hand is not such where respondents have made selection followed by appointment in excess to the post so advertised.

The other issue is as to whether respondents could have varied the post without its publication. I find that last corrigendum was issued on 1st February, 2012 varying the post and it was available on the website of the RPSC and otherwise flashed on the ETV. It is not that without making it to the notice of the candidates or public that alteration of the post was made. It is true that last corrigendum was not published in the newspaper but merely for that reason, action of the RPSC would not become illegal so as of the State Government.

It is lastly contended that no justification exists to vary the post. I find that the State Government has determined the post and finally bifurcation of the post among different categories was made vide their letter dated 9th November, 2011. A copy of it has been placed before this court during the course of arguments. The said letter is quoted hereunder for ready reference:

The letter gives justification for bifurcation of 35 posts between open category and other categories. Out of 35 posts, 19 have been given to the open category and 5 each to the SC and ST category. It is looking to the fact that no backlog vacancy exists thus 5 posts each are given to SC and ST categories. Looking to the reasons given above, I do not find that variation in the post among various categories was without any basis.

In the light of discussion made above, I do not find any merit in the writ petitions. They are accordingly dismissed along with stay applications.