Devkinandan Mishra vs State Of Raj And Ors
2021 Latest Caselaw 7079 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 12908/2010
Devkinandan Mishra S/o Shri Suresh Chandra Mishra, aged
about 38 years Shyam Villa, Near Govt. Girls Senior Higher
Secondary Higher Secondary School, Bandikui District - Dausa.
                                                                    ----Petitioner
                                    Versus
1.      State Of Rajasthan Through Its Principal Secretary,
        Department Of Ayurved And Indian Medicines, Govt. Of
        Rajasthan , Secretariat, Jaipur.
2.      Rajasthan     Public      Service        Commission        Through      Its
        Secretary, Ajmer.
3.      Shri Yugal Kishore Arya S/o Shri Radhey Shyam Arya,
        Ayurved Chikitsa Adhikari, Village Behrawand Khurd,
        District Sawai Madhopur Presently Working On Deputation
        At Ayurved Chikitsa Adhikari At M.M.M. Govt. Ayurved
        College, Udaipur.
4.      Shri Paras Ram Yogi S/o Shri Laxmi Narayan Yogi, Village
        Salempur, Post Lalpur Upri, Tehsil Gangapur City District
        Sawai Madhopur Presently Working As Ayurved Chikitsa
        Adhikari    At   Govt.       Ayurved        Hospital      Tasol,   District
        Rajsamanad.
                                                                 ----Respondents

For Petitioner(s) : Mr. R.C. Joshi with Mr. Banwari Lal Sharma For Respondent(s) : Mr. Hari Kishan Saini, Dy.G.C.

Mr. Mirza Faisal Baig Mr. Anubhav Agarwal for Ms. Anita Agarwal

HON'BLE MS. JUSTICE REKHA BORANA Order 01/12/2021

This present petition has been filed by the petitioner with the

following reliefs:

"(i) By issue of appropriate writ, order or direction the impugned select list dated 28.11.1995 and waiting list dated 28.11.1995 issued by Respondent RPSC for making selection on the post

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of Ayurvedic Chikitsak, in pursuance of advertisement dated 15.3.1995 which has been provided to petitioner vide letter dated 23.3.2010 and 7.5.2010 may kindly be quashed and set aside.

(ii) By issue of appropriate writ, order or direction the respondent RPSC may be directed to hold a competitive examination for making selection to the post of Ayurvedic Chikitsak in pursuance of advertisement dated 15.3.1995 and further not to keep more than 15% marks for interviews while making the selection to the post of Ayurvedic Chikitsak.

Or in alternate

(iii) By issue of appropriate writ, order or direction the respondent RPSC may be directed to adjust the petitioner against the post of Ayurvedic Chikitsak against the vacancies which were advertised vide advertisement dated 15.3.1995 and to give all consequential benefits specially against the vacancy got vacant due to resignation of one Shri Kamlesh Kumar Sharma who was placed at no.1 in the select list."

Before proceeding with the matter it is relevant to take note

of the fact that this is the second round of litigation by the

petitioner. Earlier S.B. Civil Writ Petition No.1017/1996;

Devki Nandan Mishra Vs. State of Rajasthan & Anr. was filed

by the petitioner challenging the same selection process. Said writ

petition alongwith other connected writ petitions was dismissed on

merits vide order dated 11.02.1998 passed by the learned Single

Judge in which it was held as under:

"The another allegations made in these petition regarding the procedure in conducting the examination, this prayer was also considered in the case of Madhya Pradesh Public Service Commission vs. Navneet Kumar Potdar AIR 1995 SC 77 wherein it has been held ram that the commission/Board/authority which has to make selection is bound to adopt fair a procedure but what is the procedure is the discretion of the authority and court cannot sit in a appeal against that procedure adopted by the authority. Holding written tests etc. may be desirable or necessary but it is to be

(3 of 5) [CW-12908/2010]

examined by the commission itself but the process of short listing should be fair one. What should be the procedure of short listing has to be of discretion of the authority making selection. In view of the avermetns made above the petition does not succeed. However Mr. Kumawat undertakes that the commission will consider all the suggestions made by Shri Joshi and Mr. Gupta for making selection in future."

Against the said order of learned Single Judge, the

petitioners had preferred an appeal being D.B. Special Appeal

(Writ) No.781/1998; Devki Nandan Mishra Vs. State of

Rajasthan & Anr.. The said appeal was dismissed as withdrawn

with liberty to the petitioner to file a fresh petition.

It has been averred by the counsel for the petitioner that in

pursuance to the directions issued by the Division Bench vide

order dated 26.11.2009, the present writ petition has been filed. A

perusal of order dated 26.11.2009 shows that the same was not

decided on merits and the order of the learned Single Judge was

not set aside in the said order. Permission was sought by the

counsel for the petitioner to withdraw the appeal, which was

granted by the Division Bench. No finding on the merits of the

appeal was recorded which means that the judgment dated

11.02.1998 passed by the learned Single Judge had become final

by all means.

In the above-mentioned facts and circumstances present

petition based on the same grounds and for the same reliefs as

prayed for in S.B. Civil Writ Petition No.1017/1996 cannot be

entertained at this stage. Only prayer No.3 as prayed by the

petitioner is taken into consideration vide which he has prayed

that he may be adjusted against the post which got vacant due to

resignation of one Shri Kamlesh Kumar Sharma who was placed at

serial No.1 in the select list. It has been averred by counsel for the

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petitioner that Shri Kamlesh Kumar Sharma who was at serial

No.1 in the select list had later on quit the job since he was

appointed on the post of Assistant Professor in National Institute

of Ayurveda (BAMS), Jaipur, vide appointment order dated

19.02.1998 and therefore the petitioner should be adjusted on the

seat which became vacant.

The said prayer of the petitioner can also not be granted

because of the following reasons:

(i) The recruitment in question relates to the year 1995 and the

present petition is filed in the year 2010 which cannot be

entertained after a delay of about 15 years.

(ii) In terms of Rule 20 of the Rajasthan Ayurvedic, Unani,

Homoeopathy and Naturopathy Service Rules, 1973 the

reserve/waiting list remains live only for a period of six months

from the date on which the original list is forwarded by the

Commission to the Appointing Authority. Therefore, too, it cannot

be assumed at this stage that the reserve/waiting list of the

recruitment of the year 1995 would be in operation till date.

(iii) It is not a case where a person who found place in the select

list had not joined and therefore the seat had become vacant.

Here is the case where the person from the select list had joined

and resigned after a period of 3 years. The seat which had become

vacant because of these developments cannot be termed to be a

seat vacant qua the vacancies of the year 1995.

(iv) As informed by the counsel for the respondents, after the

recruitment process of 1995, recruitment process for the

subsequent years have been held by the Department taking into

consideration all the vacant posts which existed at that point of

time and have been filled thereupon. The fact is evident even from

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the submissions of the petitioner wherein he stated that he had

been later on selected in the year 2015.

Counsel for the respondents relied upon a judgments passed

by this Court in S.B. Civil Writ Petition No.1727/2015 Dr.

Rakesh Meena Vs. The RPSC & Ors. decided on 28.06.2017

wherein after considering all the earlier relevant judgment passed

by the Hon'ble Apex Court as well as this Court, it has been held

as under:

"In Sanjay Bhattacharya vs. Union of India & Ors, 1997 (s) SCT 339, it has been held that merely because name of the petitioner had surfaced in the Reserve/Waiting List, it does not confer any right of appointment in him.

Since no in defesible right has accrued to the petitioner, because his name had surfaced in the Reserve/Waiting List, the State Government cannot be denied their right to scout for the best talent or human resource, which is now available after lapse of four years.

Thus, no fault can be found with the action of the respondent RPSC not to operate Reserve/Waiting List, after specified period as it is always better that the individual good should make way for larger good of the society and citizens must now get better homeopath after issuance of fresh advertisement. Since the petitioner is not having any indefesible or vested right to insist that the State must fill the vacancy from Reserve/Waiting List, which was prepared four years ago, on 14.12.2012, there is no merit in the present petition, and the same is dismissed."

In view of the above judgment and the observations

aforementioned, the present writ petition calls for no interference

by this Court and the same is dismissed.

Stay petition and all pending applications also stand disposed

of.

(REKHA BORANA),J

RAJAT KUMAR /117

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