Anand Sharma S/O Shri Madan Lal ... vs State Of Rajasthan
2021 Latest Caselaw 6953 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 7206/2021
1.     Anand Sharma S/o Shri Madan Lal Sharma, Aged About
       34 Years, R/o 5-C 15, R.C. Vyas Colony, Bhilwara District
       Bhilwara, Rajasthan 311001.
2.     Kalyan Singh S/o Shri Bheem Singh, Aged About 32
       Years, R/o 96, Surya Colony, Nayagaon, District Pali,
       Rajasthan 306401.
3.     Goteram Meena S/o Shri Rajaram Meena, Aged About 27
       Years,    R/o    Village      Dimokhari,          Post    Langra    Tehsil
       Mandrayal, District Karauli, Rajasthan 322249.
4.     Subhash Chandra Saini S/o Shri Santosh Kumar Saini,
       Aged About 29 Years, R/o Dhani Chanakawali, Waya-
       Kanwat Tehsil Shri Madhopur, Thoi, Rampura, District
       Sikar, Rajasthan 332719.
                                                                  ----Petitioners
                                   Versus
1.     State Of Rajasthan, Through The Principal Secretary,
       Medical And Health Services (Group-Iii), Government Of
       Rajasthan, Secretariat Jaipur.
2.     The Mission Director, National Health Mission Medical And
       Health Department, Swasthya Bhawan, C-Scheme, Tilak
       Marg, Jaipur.
3.     The Director, Rajasthan State Institute Of Health And
       Family Welfare (Sihfw), Jhalana Institutional Area, Jaipur,
       Rajasthan.
                                                                ----Respondents

For Petitioner(s) : Mr. Nikhil Simlote with Mr. Vikram Pratap Singh For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order

26/11/2021

In this writ petition, the petitioners have prayed for quashing

the order dated 10.12.2020 whereby, the representation filed by

(2 of 11) [CW-7206/2021]

the petitioner No.2 has been dismissed with a further prayer that

the respondent No.2 may be directed to issue appointment orders

in favour of the petitioners and other candidates who are qualified

and are in waiting list for appointment on the post of Nurse Grade-

II with all consequential benefits from the date other similarly

situated candidates have been given appointment in pursuance of

order dated 11.06.2020.

The facts in brief as stated in the writ petition are that vide

advertisement No.2038 dated 28.01.2016, applications were

invited for appointment on various posts including the posts of

General Nursing and Midwifery (for brevity "GNM")/Nurse Grade-II

under the National Health Mission. The petitioners applied in

pursuance thereof and appeared in the examination. The result of

the examination was declared on 06.02.2019, final select list was

published on 24.12.2019 and the selected candidates were

extended appointment immediately thereafter. It is averred that

the respondents vide letter dated 20.05.2020 notified total 389

vacancies which remained unfilled on account of successful

candidates not attended the counselling and vide order dated

11.06.2020, 360 candidates were given appointment. It is stated

that even after appointment of 360 candidates, about 29

vacancies are still available. It is stated that on an earlier

occasion, a Writ Petition No.10295/2020 was filed by the

petitioner No.2, Kalyan Singh seeking his appointment against the

vacant posts of GNM/Nurse Grade-II out of the waiting list. The

aforesaid writ petition came to be disposed of by a Coordinate

Bench of this Court vide order 14.09.2020 with liberty to the

petitioners therein to submit a representation before the

concerned authority to decide the same in accordance with law.

(3 of 11) [CW-7206/2021]

Thereafter, a representation was submitted by the petitioner Nos.1

& 2 and vide order impugned dated 10.12.2020, the

representation submitted by the petitioner No.2, Kalyan Singh has

been dismissed.

The only contention made by the learned counsel for the

petitioner is that since the vacancies still exist for appointment on

the post of GNM/Nurse Grade-II in pursuance of advertisement

dated 28.01.2016, the respondents may be directed to give

appointment to the petitioners against such vacancies. Learned

counsel has relied upon a judgment of Division Bench of this Court

dated 03.11.2017 rendered in case of Rajesh Choudhary & Ors.

versus The State of Rajasthan & Anr., DB Special Appeal

Writ No.1178/2017 and other connected matters in support of

his submissions.

Heard learned counsel for the petitioners and perused the

record.

Indisputably, the appointments against the vacancies

advertised on 28.01.2016, out of the final select list dated

24.12.2019, were given by the respondents in December, 2019

and January, 2020. The reserve/waiting list was published by the

respondents vide letter 06.03.2020. Thereafter, vide letter dated

20.05.2020, 389 vacancies were notified to be available for

appointment from the reserve list. As per order dated 11.06.2020,

360 vacancies were filled in from the candidates in the reserve

list. The order dated 10.12.2020 rejecting the representation

submitted by the petitioner No.2 reveals that as per Circular dated

19.07.2001 issued by the Department of Personnel and the

Rajasthan Public Commission (Ministerial and Subordinate

Services) Rules and Regulations, 1999, the reserved list can be

(4 of 11) [CW-7206/2021]

operated within six months from the date of issuance of main

result. Rule 27 of Rules and Regulations of 1999 reads as under:-

             "27.         Recommendations                          of             the
      Commission/Appointing                     Authority.              -         The

Commission/Appointing Authority shall prepare a list of the candidates whom they consider suitable for appointment to the posts concerned, arranged in the order of merit.

             Provided       that      the      Commission/Appointing
      Authority      may,    to    the      extent      of    50%           of    the
      advertised      vacancies         keep       names           of   suitable

candidates on the reserve list. The list shall be valid upto 6 months from the date of the recommendations of the original list."

This Court has, in case of Gokul Chand Sharma versus

State of Rajasthan, MANU/RH/1327/2014, held as under:-

"7. Admittedly, in the present case the select list was forwarded by the Commission to the Appointing Authority on 31.08.1998 and six months counting there-from would expire on 28.02.1999. The respondents are therefore justified in contending that the life of the select list expired on that date.

Contention that there was no conscious decision to operate the reserve list not to fill up one post of APP Gr.II and therefore the appointing authority be directed to requisition the name of the petitioner from the reserve list with further direction to appoint him, cannot be appreciated. The cited judgment of this court in Ghanshyam Singh Rathore, supra, arose out of different facts situation altogether. The judgment of the Supreme Court in Sheo Shyam and Others also is distinguishable as in that case there was no statutory rule governing the field. Besides, in

(5 of 11) [CW-7206/2021]

between, the appointment orders passed of the batch was stayed by the High Court which stay order remained operative for about seven months. The Division Bench judgment of this court in Brijendra Singh also arose out of the facts in which life of the waiting list was interrupted by the interim order, and the select list was to remain operative till 31.03.1998. The government in between imposed ban on appointment by order dated 27.01.1998 which was lifted on 24.02.1998 to make appointments of teachers in rural areas up to 31.05.1998. Some of the appointed candidates did not join. If the select list was operated immediately, the persons in the waiting list would have secured appointment. That number could have been reached by appointing persons immediately below in the select list. The Division Bench found that as per the interpretation of Rule 22 of the Rules of 1962, which is analogous to Rule 22 in the present case, the appointment of the petitioner would be permissible in view of proviso to Rule 22.

8. In Moola Ram, supra, also post had become available within validity period of reserve-list after the Appointing Authority originally appointed 15 candidates of general category and the petitioner, who was at serial No. 16 in general category. One of the candidates was found guilty of misconduct by producing forged certificates in support of his candidature and thus rendered himself ineligible to be appointed. In that case too, the select list was to expire on 31.03.1998 however during currency of period the Government imposed ban on fresh recruitment on 27.01.1998 and therefore issued a circular on 24.08.1998 followed by letter of Director Secondary Education dated 05.03.1998 for granting relaxation from the ban for making fresh recruitment in the rural areas to 31.05.1998. It was held that the

(6 of 11) [CW-7206/2021]

desire of the paramount State Government for offering appointment from amongst selected candidates in the order of merit until 31.05.1998 is also manifest, which by necessary implications means that the State Government has not decided to keep the rural vacancies unfilled if the selected candidates are available. Such are not the facts of the present case. The other cited judgments are also distinguishable on facts.

9. In Bihar State Electricity Board vs. Suresh Prasad & Ors., supra, it was held by the Supreme Court that even if a selected candidate does not joint in the absence of statutory rules to the contrary, the employer is not bound to fill up the vacancy from the candidate next below in the select list. Considering the question of right of waiting list candidate, it was held by the Supreme Court that in the absence of statutory rules to the contrary, the employer is not bound to prepare a waiting list in addition to the panel and to appoint the candidates from the waiting list in case the candidate on the panel do not join.

10. In fact, none of the judgments, which have been cited on behalf of the petitioner, arose out of the facts where the appointment was ordered to be given to the wait listed candidate and non-joining of the candidate appointed from the main list after expiry of validity of the period of reserve list. In the present case, the last candidate Manoj Kumar Sharma, in whose vacancy the petitioner is claiming appointment, was himself offered appointment much after expiry of the period of six months, whereafter the waiting list ceased to be alive. The waiting list ceased to be alive on 28.02.1999 and his appointment order was issued on 10.05.1999 i.e. two-and-half month thereafter. I therefore do not find any merit in this writ petition. It is accordingly dismissed."

(7 of 11) [CW-7206/2021]

The Hon'ble Apex Court of India has, in case of Union of

India & Ors. versus B. Valluvan & Ors., (2006) 8 SCC 686,

held that:-

"In fact, the High Court, despite noticing the argument advanced on behalf of Union of India that the 1st Respondent had no legal right to be appointed, proceeded to opine that the panel prepared for filling up of future vacancies should be given effect to. The review of the High Court was not only contrary to the circular letter issued by Union of India, but also contrary to the general principles of law. The life of a panel ordinarily is one year. The same can be extended only by the State and that too if the statutory rule permits it to do it. The High Court ordinarily would not extend the life of a panel. Once a panel stands exhausted upon filling up of all the posts, the question of enforcing a future panel would not arise. It was for the State to accept the said recommendations of the Selection Committee or reject the same. As has been noticed hereinbefore, all notified vacancies as also the vacancy which arose in 2000 had also been filled up. As the future vacancy had already been filled up in the year 2000, the question of referring back to the panel prepared in the year 1999 did not arise. The impugned judgment, therefore, cannot be sustained."

The Hon'ble Apex Court of India has, in case of State of U.P.

& Ors. versus Harish Chandra & Ors., AIR 1996 SC 2173,

held as under:-

"10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous.

Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ

(8 of 11) [CW-7206/2021]

Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory rule contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the date of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of

(9 of 11) [CW-7206/2021]

the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.87 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or not."

This Court has, in case of State of Nand Ram versus State

of Rajasthan & Ors., 2004 (1) WLC 795, held as under:-

"(25). In the present case, the select list was prepared on 25.1.1997 and proviso (ii) of Rule 274 (1) of the Rules of 1996 clearly provides that the life of select list would be one year and thus, the life of select list had expired on 25.1.1998 and when the life of select list had already expired, therefore, the petitioner had no right whatsoever to seek appointment on the basis of waiting list and apart from this, the petitioner made representation through Annex. 3 on 1.6.1998 and at that time, the period of select list had already expired."

Thus, from the conspectus of the aforesaid judgments, it is

clear that once the shelf life of the reserve list comes to an end,

no appointment can be extended from the waiting/reserve list.

(10 of 11) [CW-7206/2021]

Learned counsel for the petitioner could not cite any contrary view

clothing this Court with a jurisdiction to direct the respondents to

operate the reserve/waiting once its life has come to an end as

per the statutory provision. In the present case, the reserve list

was published on 06.03.2020 and the candidates out of this list

were extended appointment on 11.06.2020. Thereafter, the

petitioners could not point out that any appointment has been

made from the reserve list. The writ petition has been filed after

the expiry of period of six months from the date of issuance of the

reserve list or even after last candidate was extended appointment

from the reserve list. In these circumstances, the respondents

cannot be directed by this Court to operate the reserve list and

extend appointment from it.

Even otherwise also, as per contents of Ground I of the writ

petition, out of total vacant 389 seats of GNM/Nurse Grade-II, 382

seats have already been filled in which leaves only 7 vacancies. As

per the document verification plan for waiting candidates placed

on record alongwith the letter dated 06.03.2020 (Annexure-3),

the last candidate offered appointment has secured 91.578 %

whereas, there are more than seven candidates in between the

petitioners and last candidate offered appointment. In these

circumstances also, even if remaining seven vacancies are to be

filled in, the petitioners do not have any right against the same.

Although, the petitioners have claimed benefit extended to

the similarly situated candidates; but, they have failed to show

form the material on record that any person similarly situated has

been extended appointment. Undeniably, no person less

meritorious than the petitioners has been given appointment in

(11 of 11) [CW-7206/2021]

the selection process ensuing from the advertisement dated

28.01.2016.

The reliance placed by the learned counsel for the petitioners

on the judgment in case of Rajesh Choudhary & Ors. (supra) is

wholly misconceived. That case did not involve the question of

operation of the waiting list after its expiry.

The upshot of the aforesaid discussion is that the writ

petition is devoid of merit and is dismissed accordingly.

(MAHENDAR KUMAR GOYAL),J Manish/74

Powered by TCPDF (www.tcpdf.org)