दोस्तों मेने मेरे ब्लॉग के परिचय में मेरे राजस्थान न्यायिक सेवा में साक्षात्कार के बाद में रिजर्व्ड लिस्ट राजस्थान लोक सेवा आयोग अजमेर द्वारा जारी की गयी थी तथा नियुक्ति नहीं देने पर राजस्थान उच्च न्यायालय में संविधान के अनुच्छेद 226 के अंतर्गत रिट याचिका पेश की।हम यहाँ उस याचिका में माननीय जस्टिस बी एस चौहान द्वारा पारित निर्णय को पाठको की जानकारी हेतु दे रहे है। यह R L W 1998(2) Raj. Page 1345 पर रिपोर्टेड केस है।
Tarachand Bhati
Versus
State of Rajasthan& Others
S.B. Civil Write Petition No .4324 Of vc 1997 .
JUDGMENT B.S. Chauhan, J.
1. The instant writ petition has been filed for seeking direction to make appointment, in the cadre of Rajasthan Judicial Service on the basis of the selection in pursuance to the advertisement dated 1.7.1994, to the petitioners and other similarly situated persons if they are otherwise found suitable and eligible, with all consequential benefits and to issue direction to fill-up the vacancies from the Select List prepared in pursuance of the advertisement dated 1.7.1994 as existed on 8.12.1996.
2. The facts and circumstances giving rise to this case are that vide advertisement dated 1.7.1994 published on 15.7.1994 (Annexure. 3) applications were invited from eligible candidates to fill-up 113 posts of Munsif & Judicial Magistrates in Rajasthan. A large number or candidates as well as the present petitioners applied in response to the said advertisement and the Rajasthan Public Service Commission prepared a Select List of 113 successful candidates and, also, a Reserve List containing the names of 57 successful candidates and both the lists were for warded to the Rajasthan High Court to make recommendations to the State Government for making appointment for the purpose of filling-up 113 vacancies advertised on 1.7.1994. Some appointments were made. However, it appears that some persons did not join for one reason or the other and some vacancies remained unfilled. S.B. Civil Writ Petition No. 5934 of 1996,. Sri Swami v. State of Rajasthan and Ors. was filed before the Jaipur Bench of this Court, wherein interim order was passed on 5.12.1996 to fill-up the remaining vacancies and complete the selection for 113 posts advertised. The said interim order stood modified on 28.2.1997 to the extent that six posts remained vacant out of 113 posts as 107 persons had been appointed and direction was given that six persons may be appointed from the reserve list to fill-up the remaining vacancies and complete selection for 113 posts as is evident from the said order contained in Annexure. 10 to the petition. Ultimately, the said writ petition was disposed of vide judgment and order dated 18.9.1997 (Annexure. 11) in terms of the interim order passed earlier. The meaning in sum and substance of this judgment had been that the selection process for 113 posts should come to an and by making appointments from the reserve list strictly in accordance with merit for the remaining few vacancies. The aforesaid judgment attained finality as no appeal was filed against it. It appears that the said process is not yet complete and there are few vacancies as all the 113 posts have not yet been filled-up. Even in this petition, this Court, vide order dated 17.12.1997 has permitted the respondents to make appointments out of the waiting list which is operative under Rule 19 of the concern Rules.
3. In the instant petition Mr. Govind Mathur has submitted that the judgment and order dated 15.9.1997, contained in Annexure. 11, should be implemented completely and in addition to fill-up 113 posts, all the vacancies which existed on 8.12.1996, should be filled-up from the reserve list. According to petitioner, the Rajasthan Public Service Commission had forwarded the names of successful candidates to the High Court on that date and the vacancies existing on 8.12.1996 cannot be filled-up by fresh advertisement or by holding fresh selection as valid list or selected candidates was evidence with the appointing authority on that day and the vacancies arising only after December, 1996 can be filled-up by a fresh advertisement. Mr. Sangeet Lodha has opposed the second submission on the basis that no direction can be issued to fill-up any post over and above 113 advertised posts, as it would amount to filling-up unadvertised/future vacancies.
4. I have considered the rival submissions made by the learned Counsel for the parties and perused the record.
5. The respondents are under solemn duty to implement the said judgment dated 15.9.1997 as it attained the finality and has not been challenged in appeal by any party. The petitioners, should not have any grievance as even if the appointments are offered to the candidates whose names appear in the reserve list, unless a person below them in the select list is offered appointment. It is well settled law that writ under Article 226 of the Constitution is maintainable for enforcing the statutory right or when there is a complaint by the petitioner that there is a breach of statutory duty on the part of the respondent. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction (State of Kerala v. K.G. Madhavan Pillai ; State of Kerala v. Smt. A. Laxmikutty ; Mani Subrat Jain v. State of Haryana ; Calcutta Gas Company (Propriety) Limited v. State of West Bengal ; and Smt. Rampati v. State of U.P. and Ors. ). Mere inclusion of petitioners' names in the select list, does not confer any right of appointment to them. (Vide Shanker Sen Das v. Union of India. ; Asha Kaul v. State of Jammu & Kashmir ; Union of India v. S.S. Utpal ; Hanuman Prasad v. Union of India ; and Bihar Public Service Commission v. State of Bihar ).
6. It is, also, settled proposition of low that even if the name of a candidate appears in the select list and the vacancies are available and there is no financial constraint in making appointment, such candidate cannot ask the Court to issue direction to the concerned Authority to fill-up the vacancies unless he pleads and proves mala fide on the part of the said authority. (Vide Union of India v. Tejram Parasram Bombheta, ). Similarly, in Government of Orissa v. Harprasad Das, , the Apex Court has observed as under:
Whether to fill-up a post or not, is a policy decision and unless it is shown to be arbitrary, it is not open to the Tribunal to interfere with such decision of the Government and direct it to make further appointments. The Tribunal, in directing the government to make further appointments on the efficiency ground of public administration, went beyond its jurisdiction. Petitioners have not place any material on record substantiate that the action of the respondent is arbitrary.
7. In a writ petition, the petitioners are bound to plead and prove their case by adducing evidence to substantiate their averments. (Vide Bharat Singh v. State of Haryana and Ors. ). No such factual foundation has been laid by the petitioners before this Court.
8. The second submission made by Mr. Mathur is that the respondents are bound to fill-up the vacancies which existed on 8.12.1996 even if the same were beyond was 113 advertised vacancies. To fortify this submission Mr. Mathur submitted that the respondents failed to advertise the vacancies which came into existence after the advertisement dated 1.7.1994 and the process of filling-up the further vacancies has not yet started; the select list is still in force as per the law applicable in the instant case and, therefore, there can be no justification for not filling-up these vacancies from the select list.
9. Vacancies existing on 8.12.1996 cannot be filled up by fresh advertisement/selection and must be offered to reserved list candidates. I am afraid, this submission has no substance. Accepting the argument of Mr. Mathur would amount to filling-up the future vacancies and depriving the persons from being considered for appointment who became eligible for the post after 1.7.1994 and such a direction, if issued, would be violative of mandate of Article 16 of the Constitution. The Supreme Court quashed the appointments made from the reserve list over and above the vacancies advertised in Gujarat State Deputy Executive Engineer's Association v. State of Gujarat, 1992 Suppl. (2) SCC 591. In Surinder Singh v. State of Punjab, , the Apex Court observed that the waiting list cannot be used as a perennial source of recruitment filling up the vacancies not advertised. Even if the vacancies had not been worked-out properly, the Court cannot issue direction to fill-up vacancies over and above the number of posts advertised for the reason that candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative. "It is neither permissible nor desirable to fill up the posts over and above the number of posts advertised as it would amount to "improper exercise of power" and only in a rare and exceptional circumstance and in emergent situation, this Rule can be deviated from and it can be done only after adopting policy decision based on some rational as the authority cannot fill up more posts than advertised as a matter of course.
10. Similarly, in Prem Singh v. Haryana State Electricity Board, , the Apex Court observed as under:
...The selection process by way of requisition and advertisement can be stated from clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments then the number of posts advertised.... The State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf.
11. Same view had been taken by the Hon'ble Apex Court in Union of India and Ors. v. Ishwar Singh Khatri and Ors. 1992 Suppl. (3) SCC 84, wherein it was held that selected candidates have right to appointment only against "vacancies notified" and that too during the life of the select list as the panel of selected candidates cannot be valid for indefinite period. Moreover, impanelled candidates "in any event cannot have a right against future vacancies." In State of Bihar v. Secretariat, Assistant S.E. Union, 1986 and Ors. , the Apex Court held that a person who is selected does not, on account of being empanelled along, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service Rules says to the contrary." In the said case as the selection process was completed in five years after the publication of the advertisement, the contention was raised that the empanelled candidates deserved to be appointed over and above the vacancies notified. The Hon'ble Supreme Court rejected the contention by observing that callousness of Competent Authority in not completing the selection process and issuing any fresh advertisement in between, may not be justified but offering the posts in such a manner would adversely prejudice the cause of those candidates who achieved eligibility in the meantime.
12. There is no factual foundation for this proposition made by Mr. Mathur. No policy decision has ever been taken by the competent authority to the extent of filling up posts over and above the 113 posts advertised. Therefore, it is not permissible to fill up any vacancy over and above 113 vacancies advertised on 1.7.1994 as it would be violative of the mandate of Article 16 of the Constitution, Particularly, it would be depriving the right as well as the legitimate exception of those who became eligible subsequent to the advertisement dated 1.7.1994.
13. Thus, in view of the above, the petition is disposed of finally with a direction to the respondents to fill-up the vacancy/vacancies if there is any, to complete the selection for 113 posts as advertised on 1.7.1994 by offering appointment to the candidates whose names appear in the reserve list, strictly in accordance with merit and it should be done expeditiously, preferably within two months from today and close the selection process. In the facts and circumstances of the case, the parties are left to bear their own cost.
Tarachand Bhati
Versus
State of Rajasthan& Others
S.B. Civil Write Petition No .4324 Of vc 1997 .
JUDGMENT B.S. Chauhan, J.
1. The instant writ petition has been filed for seeking direction to make appointment, in the cadre of Rajasthan Judicial Service on the basis of the selection in pursuance to the advertisement dated 1.7.1994, to the petitioners and other similarly situated persons if they are otherwise found suitable and eligible, with all consequential benefits and to issue direction to fill-up the vacancies from the Select List prepared in pursuance of the advertisement dated 1.7.1994 as existed on 8.12.1996.
2. The facts and circumstances giving rise to this case are that vide advertisement dated 1.7.1994 published on 15.7.1994 (Annexure. 3) applications were invited from eligible candidates to fill-up 113 posts of Munsif & Judicial Magistrates in Rajasthan. A large number or candidates as well as the present petitioners applied in response to the said advertisement and the Rajasthan Public Service Commission prepared a Select List of 113 successful candidates and, also, a Reserve List containing the names of 57 successful candidates and both the lists were for warded to the Rajasthan High Court to make recommendations to the State Government for making appointment for the purpose of filling-up 113 vacancies advertised on 1.7.1994. Some appointments were made. However, it appears that some persons did not join for one reason or the other and some vacancies remained unfilled. S.B. Civil Writ Petition No. 5934 of 1996,. Sri Swami v. State of Rajasthan and Ors. was filed before the Jaipur Bench of this Court, wherein interim order was passed on 5.12.1996 to fill-up the remaining vacancies and complete the selection for 113 posts advertised. The said interim order stood modified on 28.2.1997 to the extent that six posts remained vacant out of 113 posts as 107 persons had been appointed and direction was given that six persons may be appointed from the reserve list to fill-up the remaining vacancies and complete selection for 113 posts as is evident from the said order contained in Annexure. 10 to the petition. Ultimately, the said writ petition was disposed of vide judgment and order dated 18.9.1997 (Annexure. 11) in terms of the interim order passed earlier. The meaning in sum and substance of this judgment had been that the selection process for 113 posts should come to an and by making appointments from the reserve list strictly in accordance with merit for the remaining few vacancies. The aforesaid judgment attained finality as no appeal was filed against it. It appears that the said process is not yet complete and there are few vacancies as all the 113 posts have not yet been filled-up. Even in this petition, this Court, vide order dated 17.12.1997 has permitted the respondents to make appointments out of the waiting list which is operative under Rule 19 of the concern Rules.
3. In the instant petition Mr. Govind Mathur has submitted that the judgment and order dated 15.9.1997, contained in Annexure. 11, should be implemented completely and in addition to fill-up 113 posts, all the vacancies which existed on 8.12.1996, should be filled-up from the reserve list. According to petitioner, the Rajasthan Public Service Commission had forwarded the names of successful candidates to the High Court on that date and the vacancies existing on 8.12.1996 cannot be filled-up by fresh advertisement or by holding fresh selection as valid list or selected candidates was evidence with the appointing authority on that day and the vacancies arising only after December, 1996 can be filled-up by a fresh advertisement. Mr. Sangeet Lodha has opposed the second submission on the basis that no direction can be issued to fill-up any post over and above 113 advertised posts, as it would amount to filling-up unadvertised/future vacancies.
4. I have considered the rival submissions made by the learned Counsel for the parties and perused the record.
5. The respondents are under solemn duty to implement the said judgment dated 15.9.1997 as it attained the finality and has not been challenged in appeal by any party. The petitioners, should not have any grievance as even if the appointments are offered to the candidates whose names appear in the reserve list, unless a person below them in the select list is offered appointment. It is well settled law that writ under Article 226 of the Constitution is maintainable for enforcing the statutory right or when there is a complaint by the petitioner that there is a breach of statutory duty on the part of the respondent. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction (State of Kerala v. K.G. Madhavan Pillai ; State of Kerala v. Smt. A. Laxmikutty ; Mani Subrat Jain v. State of Haryana ; Calcutta Gas Company (Propriety) Limited v. State of West Bengal ; and Smt. Rampati v. State of U.P. and Ors. ). Mere inclusion of petitioners' names in the select list, does not confer any right of appointment to them. (Vide Shanker Sen Das v. Union of India. ; Asha Kaul v. State of Jammu & Kashmir ; Union of India v. S.S. Utpal ; Hanuman Prasad v. Union of India ; and Bihar Public Service Commission v. State of Bihar ).
6. It is, also, settled proposition of low that even if the name of a candidate appears in the select list and the vacancies are available and there is no financial constraint in making appointment, such candidate cannot ask the Court to issue direction to the concerned Authority to fill-up the vacancies unless he pleads and proves mala fide on the part of the said authority. (Vide Union of India v. Tejram Parasram Bombheta, ). Similarly, in Government of Orissa v. Harprasad Das, , the Apex Court has observed as under:
Whether to fill-up a post or not, is a policy decision and unless it is shown to be arbitrary, it is not open to the Tribunal to interfere with such decision of the Government and direct it to make further appointments. The Tribunal, in directing the government to make further appointments on the efficiency ground of public administration, went beyond its jurisdiction. Petitioners have not place any material on record substantiate that the action of the respondent is arbitrary.
7. In a writ petition, the petitioners are bound to plead and prove their case by adducing evidence to substantiate their averments. (Vide Bharat Singh v. State of Haryana and Ors. ). No such factual foundation has been laid by the petitioners before this Court.
8. The second submission made by Mr. Mathur is that the respondents are bound to fill-up the vacancies which existed on 8.12.1996 even if the same were beyond was 113 advertised vacancies. To fortify this submission Mr. Mathur submitted that the respondents failed to advertise the vacancies which came into existence after the advertisement dated 1.7.1994 and the process of filling-up the further vacancies has not yet started; the select list is still in force as per the law applicable in the instant case and, therefore, there can be no justification for not filling-up these vacancies from the select list.
9. Vacancies existing on 8.12.1996 cannot be filled up by fresh advertisement/selection and must be offered to reserved list candidates. I am afraid, this submission has no substance. Accepting the argument of Mr. Mathur would amount to filling-up the future vacancies and depriving the persons from being considered for appointment who became eligible for the post after 1.7.1994 and such a direction, if issued, would be violative of mandate of Article 16 of the Constitution. The Supreme Court quashed the appointments made from the reserve list over and above the vacancies advertised in Gujarat State Deputy Executive Engineer's Association v. State of Gujarat, 1992 Suppl. (2) SCC 591. In Surinder Singh v. State of Punjab, , the Apex Court observed that the waiting list cannot be used as a perennial source of recruitment filling up the vacancies not advertised. Even if the vacancies had not been worked-out properly, the Court cannot issue direction to fill-up vacancies over and above the number of posts advertised for the reason that candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative. "It is neither permissible nor desirable to fill up the posts over and above the number of posts advertised as it would amount to "improper exercise of power" and only in a rare and exceptional circumstance and in emergent situation, this Rule can be deviated from and it can be done only after adopting policy decision based on some rational as the authority cannot fill up more posts than advertised as a matter of course.
10. Similarly, in Prem Singh v. Haryana State Electricity Board, , the Apex Court observed as under:
...The selection process by way of requisition and advertisement can be stated from clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments then the number of posts advertised.... The State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf.
11. Same view had been taken by the Hon'ble Apex Court in Union of India and Ors. v. Ishwar Singh Khatri and Ors. 1992 Suppl. (3) SCC 84, wherein it was held that selected candidates have right to appointment only against "vacancies notified" and that too during the life of the select list as the panel of selected candidates cannot be valid for indefinite period. Moreover, impanelled candidates "in any event cannot have a right against future vacancies." In State of Bihar v. Secretariat, Assistant S.E. Union, 1986 and Ors. , the Apex Court held that a person who is selected does not, on account of being empanelled along, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service Rules says to the contrary." In the said case as the selection process was completed in five years after the publication of the advertisement, the contention was raised that the empanelled candidates deserved to be appointed over and above the vacancies notified. The Hon'ble Supreme Court rejected the contention by observing that callousness of Competent Authority in not completing the selection process and issuing any fresh advertisement in between, may not be justified but offering the posts in such a manner would adversely prejudice the cause of those candidates who achieved eligibility in the meantime.
12. There is no factual foundation for this proposition made by Mr. Mathur. No policy decision has ever been taken by the competent authority to the extent of filling up posts over and above the 113 posts advertised. Therefore, it is not permissible to fill up any vacancy over and above 113 vacancies advertised on 1.7.1994 as it would be violative of the mandate of Article 16 of the Constitution, Particularly, it would be depriving the right as well as the legitimate exception of those who became eligible subsequent to the advertisement dated 1.7.1994.
13. Thus, in view of the above, the petition is disposed of finally with a direction to the respondents to fill-up the vacancy/vacancies if there is any, to complete the selection for 113 posts as advertised on 1.7.1994 by offering appointment to the candidates whose names appear in the reserve list, strictly in accordance with merit and it should be done expeditiously, preferably within two months from today and close the selection process. In the facts and circumstances of the case, the parties are left to bear their own cost.
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