State Of Rajasthan vs Dr Shri Krishan Joshi Son Of Shri ...
2022 Latest Caselaw 7773 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

          1. D.B. Civil Special Appeal (Writ) No. 81/2020
                                  In
              S.B. Civil Writ Petition No.5718/1998


1. State Of Rajasthan through the Deputy Secretary Admn.,
Government Secretariat, Jaipur.
2. The Secretary, Ayurved Department, Govt. of Rajasthan,
Jaipur.
3. The Director, Ayurved Department, Government of Rajasthan,
Ajmer.
                                            ----Appellant/Respondents.
                                   Versus
1. Dr Shri Krishan Joshi S/o Shri Kailash Chandra Joshi, Village
Gandala, Tehsil Behror, District Alwar.

2. Dr. Shri Mohan Sharma, S/o Shri Ram Narain Sharma,
Jawahar Bazar, Tonk, At present residing at Plot No.64, Gopi
Nagar, Sanganer, Jaipur.

                                    ----Non-Appellants/Petitioners.

3. Rajasthan Public Service Commission, Ajmer.

4. Dr. Surendra Kumar S/o Shri Raghuvir Singh Gothwal, Posted
under District Chief Medical and Health Alwar, District Alwar.

5. Dr. Babu Lal Meena, S/o Shri Tulsi Ram Meena, posted at
Bambori, District Bundi.

                              -----Respondents/Non-Appellants.


            2. D.B. Special Appeal Writ No. 130/2020
                                       In
              S.B. Civil Writ Petition No.5718/1998

Rajasthan Public Service Commission, Ajmer

                                                 ----Petitioner/Appellant

                                   Versus
1. Dr Shri Krishan Joshi S/o Shri Kailash Chandra Joshi, Village
Gandala, Tehsil Behror, District Alwar.



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2. Dr. Shri Mohan Sharma, S/o Shri Ram Narain Sharma,
Jawahar Bazar, Tonk, At present residing at Plot No.64, Gopi
Nagar, Sanganer, Jaipur.
                                             ----Respondent/Petitioner

3. State of Rajasthan through the Deputy Secretary Admn.,
Govt. Secretariat, Jaipur.

4. The Secretary, Ayurved Department, Govt. of Rajasthan,
Jaipur.

5. The Director, Ayurved Department, Government of Rajasthan,
Ajmer.

6. Dr. Surendra Kumar S/o Shri Raghuvir Singh Gothwal, Posted
under District Chief Medical and Health Alwar, District Alwar.

7. Dr. Babu Lal Meena, S/o Shri Tulsi Ram Meena, Posted at
Bambori, District Bundi.

                                          -----Proforma/Respondents.


For Appellant(s)          :    Mr. Chiranji Lal Saini, Additional
                               Advocate General with Ms. Srijana
                               Shresth Advocate.
                               Mr. M.F. Baig Advocate.
For Respondent(s)         :    Mr. R.N. Mathur, Senior Advocate with
                               Mr. Ashwinee Kumar Jaiman
                               Advocate.


 HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA
          HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
                                Judgment

REPORTABLE
13/12/2022

By the Court: (Per Manindra Mohan Shrivastava, J.)

1. These appeals are directed against the order dated

26.09.2019 passed by the learned Single Judge, whereby, the writ

petition filed by the respondents has been allowed directing the

appellants to consider the private respondents for appointment

under the select list of the year 1997 as published by the

(3 of 44) [SAW-81/2020]

Rajasthan Public Service Commission ('for short 'the RPSC') with

all consequential benefits of seniority though service was directed

to be treated as notional for all purposes as well as for notional

fixation of salary, actual benefit was only to be given from the

date of appointment.

2. The relevant factual matrix necessary for adjudication of

controversy involved in the appeals is that an advertisement was

issued by the RPSC on 05.08.1996 inviting applications for

appointment on the post of Homeopathic Chikitsak. The selection

process was eventually completed and select list was published on

03.10.1997 wherein, 27 candidates were placed in the main list,

including respondents No.4 & 5 herein (Respondents No.5 & 6 in

the writ petition), who were placed at Serial Nos. 25 & 26 in the

select list. One was selected for appointment against the post

reserved for Scheduled Caste whereas, the other was selected for

appointment against the reserve post of Scheduled Tribe category.

Further, a reserve list was also published on the same date which

contains 14 names including the name of Respondent No.1-writ

petitioner-Dr. S.K Joshi who was placed at S.No.1 and Respondent

No.2-writ petitioner-Dr. Shri Mohan Sharma who was placed at

S.No.3. The select list was operated by issuing appointment

orders. However, the respondents No.4 & 5 herein (Respondents

No.5 & 6 in the writ petition) did not join the services as direct

recruitees. As the reserve list was not operated, the two

petitioners who were not appointed against available vacancies

arising on account of non joining of selected candidates i.e.

respondents No.4 & 5 herein (Respondents No.5 & 6 in the writ

(4 of 44) [SAW-81/2020]

petition), representations having not been paid any heed, writ

petition came to be filed by the writ petitioners before this Court.

3. The writ petitioners laid their claim and sought relief of

direction to the Government to appoint them against unfilled

vacancies caused due to non joining of respondents No.4 & 5

herein (Respondents No.5 & 6 in the writ petition) on the ground

that respondents No. 4 & 5 herein (Respondents No.5 & 6 in the

writ petition) were initially appointed as Junior Homeopathic

Chikitsak and subsequently after the amendment in the Rules,

they were considered and screened for regular appointment as

Homeopathic Chikitsak, there was no occasion to include their

names in the main select list and in that event, the select list

ought to include the candidates in the order of merit, placed in the

reserve list. The main plea taken by the writ petitioners was that

the official respondents illegally excluded them from the process

of selection and according to their pleadings in the writ petition,

six more vacancies ought to be included in the 27 vacancies,

which were advertised for being filled up through the process of

recruitment.

The alternative plea of the writ petitioners was that in any

case as those selected candidates, did not join pursuant to offer of

appointment, the authorities were required to operate the reserve

list.

4. In the reply, one of the contention of the State as well as

RPSC was that there was no illegality in inclusion of the names of

respondents No.4 & 5 herein (Respondents No.5 & 6 in the writ

petition) in the select list because they were initially appointed as

Junior Homeopathic Chikitsak and not recruited as Homeopatic

Chikitsak and merely because their case for regularization was

(5 of 44) [SAW-81/2020]

pending, they could not be denied participation in the process of

selection by way of direct recruitment on the post of Ayurvedic

Chikitsak. The stand of the official respondents in the reply to the

writ petition was that reserve list was operative only for a limited

period and in view of the Rules governing process of recruitment

and appointment, writ petitioners could not seek issuance of a

direction for appointment and the writ petitioners were not

entitled to relief as prayed in the writ petition. On the aspect of

inclusion of vacancies, respondents denied existence of vacancies.

5. The learned Single Judge by impugned order considered two

aspects. As far as determination of vacancies is concerned,

learned Single Judge held that as the State Government had

requisitioned for 27 posts only, therefore, the writ petitioners'

claim that number of posts ought to have been treated as 33

instead of 27, was rejected.

6. Insofar as second aspect requiring determination as to

whether writ petitioners had a legal right for claiming appointment

on the post of Homeopathic Chikitsak on account of failure of

respondents No.4 & 5 herein (Respondents No.5 & 6 in the writ

petition) to join under an offer of appointment, relying upon the

several decisions, learned Single Judge concluded that the waiting

list was required to be operated after offer of appointment had

been given to respondents No.4 & 5 herein (Respondents No.5 & 6

in the writ petition) on 22.04.1998. Learned Single Judge held

that upon post having lying vacant on account of non joining of

Scheduled Caste and Scheduled Tribe candidates namely

respondents No. 4 & 5 herein (Respondents No.5 & 6 in the writ

petition), who could not have been included at the first instance in

the offer of appointment as they were already screened for the

(6 of 44) [SAW-81/2020]

purposes of regularization which resulted in their regularization in

the year 1989 also, the two vacancies were required to be filled up

from the reserved list by following the normal procedure as there

was no other Scheduled Caste and Scheduled Tribe candidates

available to fill up those two vacancies which remained unfilled.

7. The learned Single Judge also held that the writ petitioners

had a legal right for claiming appointment on the unfilled

vacancies of Homeopathic Chikitsak even after laps of many years

due to pendency of the writ petition, relying upon the Supreme

Court decision in the case of Purushottam Versus Chairman,

MSEB & Another (1999) 2 Supreme Court Cases (L & S)

1050.

8. Learned State counsel assailing legality and validity of the

order passed by the learned Single Judge would firstly argue that

the selection pertain to year 1997 and even though writ petition

was filed in the year 1998, as by that time, the waiting list had

already expired by operation of law in view of the provisions

contained in the Rajasthan Ayurvedic, Unani, Homeopathy

and Naturopathy Service Rules, 1973 (for short 'the Rules of

1973'), no relief could be granted after more than 20 years of

filing of the writ petition against the vacancies which all were filled

up in subsequent years, as has been stated in the affidavit filed

before the Court at later stage, but before the order passed by the

learned Single Judge.

9. The next submission of learned counsel for the State as well

as counsel for the RPSC would be that the finding of the learned

Single Judge that select list will operate only after the posts were

filled up by offering appointment to candidates placed in the main

list is against the statutory provisions and scheme of validity of

(7 of 44) [SAW-81/2020]

reserve list as contained in Rule 20 of the Rules of 1973. They

would submit that the reserve list remained operative only for a

period of six months from the date on which the original list was

forwarded by the Commission to the appointing authority. As the

select list was admittedly sent for recommendation to the State

Government on 16.10.1997 and six months period expired on

15.04.1998, therefore, the writ petitioners had no claim for

operating the reserve list and for that reason, the names were not

called by the State Government from the reserve list even though

two vacancies remained unfilled. Only on the basis of inclusion in

the select list or reserve list, writ petitioners could not claim

appointment. In support of their submissions, learned counsel for

the State and RPSC have relied upon the decisions of the Hon'ble

Supreme Court in the cases of Shri Sanjoy Bhattacharjee

Versus Union of India & Others, (1997) 4 Supreme Court

Cases 283, Raj Rishi Mehra & Others Versus State of Punjab

and Another, (2013) 12 Supreme Court Cases 243, Gujarat

State Dy. Executive Engineers' Association Versus State of

Gujarat and Others, 1994 Supp (2) Supreme Court Cases

591, M.P. Electricity Board The Chief Enginer, M.P. EB and

Another Versus Virendra Kumar Sharma, (2002) 9 Supreme

Court Cases 650, State of UP & Others Versus Harish

Chandra & Others, (1996) 9 Supreme Court Cases 309 &

State of Bihar and Others Versus Md. Kalimuddin and

Others, (1996) 2 Supreme Court Cases 7 and the decision of

the Bombay High Court in the case of Maharashtra Public

Service Commission Versus Pankaj Kumar C. Dabhire and

Others, Writ Petition No.5621 of 2015 & other connected

Petition, decided on 03.07.2018 and the decision of the Division

(8 of 44) [SAW-81/2020]

Bench of this Court in the case of Dr. Rakesh Meena Versus

Rajasthan Public Service Commission & Others, D.B. Special

Appeal Writ No.1572/2017, decided on 03.04.2018.

10. Per contra, learned Senior Counsel appearing for the

respondents successful writ petitioners would contend that the

principles on which learned Single Judge granted relief to the

respondents are based on well settled legal position adumbrated

in catana of decisions relied upon by the learned Single Judge.

Learned Senior Counsel for the respondents would submit that

even according to the appellant-State and RPSC, the select list

was sent with recommendation to the State Government on

16.10.1997, but it could not operate between the period from

05.01.1998 to 20.04.1998 on account of interim order of stay

passed by this Court on 05.01.1998 in S.B. Civil Writ Petition

No.6702/1997 filed by one Dr. Kamal Narayan Gupta challenging

the appointment made under the advertisement. That writ petition

was finally dismissed only on 20.04.1998. Thus, in any case, the

entire period from 05.01.1998 to 20.04.1998 could not be

included for the purposes of reckoning the period of six months.

The respondents No.4 & 5 herein (Respondents No.5 & 6 in the

writ petition) were offered appointment on 22.04.1998, but they

failed to join and, therefore, only from that point of time, the

select list would operate after offer had been given to respondents

No. 4 & 5 herein (Respondents No.5 & 6 in the writ petition) on

22.04.1998. Therefore, it is contended, the select list remained

operative and valid but the State on an erroneous assumption that

select list had expired, acted illegally in not requiring the RPSC to

sent names from the reserve list. It was because of this inaction

on the part of the State, the writ petitioners (respondents No.4 &

(9 of 44) [SAW-81/2020]

5 herein) were rightly held to be entitled to appointment by

operating the reserve list. He would further submit that the writ

petitioners approached this Court promptly when the reserve list

was in force and valid and delay in decision of the writ petition

could not be attributed to the writ petitioners, nor could they be

denied relief on the ground of delay in decision in the present

case. In addition to the decisions which were relied upon by the

learned Single Judge to grant relief, learned Senior Counsel

appearing for the respondents-writ petitioners has placed reliance

upon the decision of the Hon'ble Supreme Court in the cases of

State of Rajasthan and Another Versus Sarita Choudhary

and Another (Petition for Special Leave to Appeal (C)

No.10754/2016), decided on 04.07.2016, State of Jammu

and Kashmir and Others Versus Sat Pal, (2013) 11 Supreme

Court Cases 737 and the decision of the Division Bench of this

Court at Principal Seat, Jodhpur in the cases of State of

Rajasthan & Another Versus Sarita Choudhary & Another,

D.B. Civil Special Appeal (W) No.29/2016, decided on

22.01.2016, Rajasthan Public Service Commission therough

its Secretary, RPSC Jaipur Road, Ajmer Versus Kaushal

Kumar Gupta & Another, D.B. Special Appeal Writ

No.311/2017, decided on 18.04.2017 and the decision of the

Division Bench of this Court, Jaipur in the cases of Rajasthan

Public Service Commission, Ajmer Versus Alka Agarwal &

Others, D.B. Special Appeal Writ No.988/2016, decided on

02.11.2017, Rajasthan Public Service Commission, Ajmer

Versus Yashwant Kumar & Others, (2011) 2 RLW (Raj.)

1383, State of Rajasthan and Others Versus Ghanshyam

Khatik & Others, D.B. Special Appeal Writ No.1074/2018 &

(10 of 44) [SAW-81/2020]

Connected appeals, decided on 23.01.2019 & State of

Rajasthan and Another Versus Hukmi Chand and Another

D.B. Special Appeal (Writ) No.1141/2015 and other

connected appeals, decided on 02.06.2016 and the decision of

the Single Bench of this Court at Principal, Jodhpur in the cases of

Kaushal Kumar Gupta Versus State of Rajasthan and

Others, 2017 (2) WLC 559 & Sarita Chaudhary Versus State

of Rajasthan & Others, 2016 (2) RLW 1615 (Raj.) and the

decision of the Single Bench of this Court, Jaipur in the cases of

Alka Agarwal Versus State of Rajasthan & Others, Civil Writ

Petition No.13084 of 2011, decided on 17.03.2016, Vijay

Choudhary & Another Versus State and Others and

connected petitions, S.B. Civil Writ Petition No.8650/07,

decided on 22.05.2008, Ghanshyam Khatik Versus State of

Rajasthan and Another and other connected petitions, S.B.

Civil Writ Petition No.10730/2017, decided on 10.05.2018 &

Ravindra Purohit and Others Versus State of Rajasthan and

Others, S.B. Civil Writ Petition No.1781 & 2940 of 2015,

decided on 04.08.2015,

11. We have heard learned counsel for the parties and perused

the records and given our anxious consideration to various factual

and legal submissions advanced before us.

12. The facts, which are not in dispute and are admitted on

record, are that the recruitment was made for the purposes of

filling up 27 posts of Homeopathic Chikitsak which is admittedly

governed by the Rules of 1973. It is also not in dispute that in the

main list, respondents No.4 & 5 herein (Respondents No.5 & 6 in

the writ petition) were included as Scheduled Caste and Scheduled

Tribe candidates against reserved post in their respective category

(11 of 44) [SAW-81/2020]

at S.Nos. 25 & 26. It is also not in dispute between the parties

that in the reserve list (waiting list), the Respondent No.1-writ

petitioner-Dr. S.K Joshi was placed at S.No.1 and Respondent

No.2-writ petitioner-Dr. Shri Mohan Sharma was placed at S.No.3.

The candidate placed at S.No.2 did not approach the Court and

has not laid any claim by filing any petition. It is also not in

dispute that both the writ petitioners belong to general category.

13. Another set of undisputed facts relevant for decision of the

present case are that the RPSC forwarded the main list along with

the recommendations to the Sate Government on 16.10.1997. It

is also not in dispute that the respondents No.4 & 5 herein

(Respondents No.5 & 6 in the writ petition) namely Dr. Surendra

Kumar and Dr. Babu Lal Meena were offered appointment vide

appointment order dated 22.04.1998, but they did not submit any

joining pursuant to order of appointment.

14. It is not necessary for us to dwell into controversy as to

whether the names of the respondents No.4 & 5 herein

(Respondents No.5 & 6 in the writ petition) were liable to be

excluded from the main select list for the reason that while

continuing as Junior Homeopathic Chikitsak, they were screened

for regularization and ultimately regularized because even if it is

assumed that they were entitled to participate in the process of

selection and entitled to be included in the select list for the

purposes of direct recruitment on the post of Homeopathic

Chikitsak, the fact remains that they did not join pursuant to offer

of appointment dated 22.04.1998 against the Scheduled Caste

and Scheduled Tribe category respectively.

(12 of 44) [SAW-81/2020]

15. One of the main contention as advanced by the learned

counsel for the State as well as counsel for the RPSC in their

respective appeals is that the learned Single Judge ought not to

have granted any relief after about 20 years of filing of the writ

petition, particularly when all the backlog vacancies including the

vacancy in question in the present case, were already filled up.

16. As to whether two vacancies against which respondents No.4

& 5 herein (Respondents No.5 & 6 in the writ petition) were

offered appointment on 22.04.1998, upon which they did not join,

is concerned, in the additional affidavit filed by the State on

03.10.2016, in compliance of the order dated 20.09.2016 of the

learned Single Judge, it has been stated that though respondents

No.4 & 5 herein (Respondents No.5 & 6 in the writ petition) did

not join pursuant to appointment order dated 22.04.1998,

remaining backlog vacancies were also filled up and no backlog on

the post of Homeopathic Chikitsak is vacant. A letter dated

04.07.2016 to this effect has also been placed on record.

However, there is nothing on record placed by the State that on

the date of filing of the writ petition, vacancies were not available.

The writ petition was filed by the writ petitioners on 03.11.1998.

Therefore, at least, it can be said that on the date on which the

writ petition was filed, the vacancies were available. Out of 27

posts for which recruitment had taken place, two vacancies

remained unfilled on account of non joining of respondents No.4 &

5 herein (Respondents No.5 & 6 in the writ petition).

17. As to whether the writ petitioners had a legal right for

claiming appointment on the post of Homeopathic Chikitsak after

lapse of so many years due to pendency of the writ petition,

(13 of 44) [SAW-81/2020]

learned Single Judge relied upon the decision of the Hon'ble

Supreme Court in the Case of Purushottam Versus Chairman,

MSEB & Another (Supra) wherein, it was held as under:-

"4. In view of the rival submission that question that arises for consideration is whether a duly-selected person for being appointed and illegally kept out of employment on account of untenable decision on the part of the employer, can be denied the said appointment on the ground that the panel has expired in the meantime. We find sufficient force in the contention of Mr. Deshpande appearing for the appellant inasmuch as there is no dispute that the appellant was duly selected and was entitled to be appointed to the post but for the illegal decision of the screening committee which decision in the meantime has been reversed by the High Court and that decision of the High Court has reached its finality. The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant's right to be appointed to the post has been illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the Maharashtra State Electricity Board to appoint the appellant to the post for which he was duly selected within two months from today. We make it clear that appointment would be prospective in nature."

18. Learned Single Judge also relied upon Division Bench

Judgment of this Court in the case of Kudrat Ali Versus

Municipal Council, Bhilwara & Ors., 2007 (1) WLC 90, which

(14 of 44) [SAW-81/2020]

dealt with similar contingency as to whether relief could be

granted after long time due to delay in decision of the case. In the

aforesaid decision, it was held as below:-

"9. These facts, which have not been noticed by the learned Single Judge, clearly go to show that the finding that the writ petition has been filed 15 years of publication of seniority list suffers from gross laches was unfounded. Perhaps 15 years period was also taken into consideration by including the period during which the petition had remained pending hearing before this court. The writ petition was decided in the year 2000 but the same has been filed in 1992 and the delay of 15 years has been taken into consideration with reference to the date when the matter was being heard and decided. Apparently, 8 years' period during which petition could not be heard by this court, could not be part of laches, if any, attributed to the petitioner-appellant."

19. Relying upon the aforesaid two decisions, learned Single

Judge has held that the writ petitioners' right for claiming relief

still continues and merely because of the pendency of the writ

petition for long period, the writ petitioners could not be denied

relief if they are otherwise found entitled to the same.

20. In our considered opinion, the view taken by the learned

Single Judge does not warrant dismissal only on that ground and,

therefore, the contention of the learned counsel for the respective

appellant-State and RPSC that the learned Single Judge erred in

granting relief ignoring delay in decision of the writ petition, has to

be rejected as writ petitioners cannot be made to suffer for delay

in the decision of the writ petition as it is none of their fault.

21. In the case of Purushottam Versus Chairman, MSEB &

Another (Supra), their Lordships in the Supreme Court have

(15 of 44) [SAW-81/2020]

authoritatively pronounced that if the writ petitioners are

otherwise found entitled to appointment and the action of the

Appointing Authority in not operating waiting list is found to be

illegal, the writ petitioners could not be denied equitable relief

provided their exists vacancies on the date of order passed by the

Court. Therefore, one of the principal objection to the

maintainability of the writ petition, based on delay, is liable to be

rejected and is accordingly rejected.

22. The seminal issue requiring consideration in the present case

is whether on the date, when appointment order was issued to

respondents No.4 & 5 herein (Respondents No.5 & 6 in the writ

petition) i.e. 22.04.1998, the reserve list was alive and in force for

being operated and if so, whether inaction on the part of the State

in not operating reserve list, was illegal and arbitrary.

23. Recruitment to the post born in the cadre of Homeopathic

Chikitsak is governed by the Rules called Rajasthan Ayurvedic,

Unani, Homeopathy and Naturopathy Service Rules, 1973.

Part (IV) contained provision regarding procedure for direct

recruitment. Importantly, Rule 20 provides for recommendation of

the RPSC, which is reproduced herein below:-

"20. Recommendation of the Commission for the Appointing Authority- The Commission shall prepare a list of the candidates whom it considers suitable for appointment to the posts concerned, arranged in the order of merit. The Commission shall forwarded the list to the Appointing Authority.

Provided that the Commission may to the extent of 50% of the advertised vacancies keep name of suitable candidates on the reserve list. The Commission may on requisition, recommend the names of such candidates in

(16 of 44) [SAW-81/2020]

the order of merit to the Appointing Authority within six months from the date on which the original list is forwarded by the Commission to the Appointing Authority.

Provided further that for the posts of Ayurved Chikitsadhikari, Homeopathy Chikitsadhikari, Unini Chikitsadhikari, the Appointing Authority shall prepare a list of the candidates whom it considers suitable for appointment to the posts concerned, arranged in the order of merit. The Appointing Authority shall forward the list to the Government. The Appointing Authority may to the extent 50% of the advertised vacancies keep name of suitable candidates on the reserve list."

The aforesaid Rule is in two parts, the first part envisages

preparation of a list of the candidates by the Commission, who

may be considered suitable for appointment to the posts

concerned, arranged in the order of merit. It further obliges the

Commission to forward the list to the Appointing Authority.

The other part of the Rules provides that the Commission

may to the extent of 50% of the advertised vacancies keep name

of suitable candidates on the reserve list. It further provides that

the Commission may on requisition, recommend the names of

such candidates in the order of merit to the Appointing Authority

within six months from the date on which the original list is

forwarded by the Commission to the Appointing Authority. If the

second part of the Rule is read as it is, upon literal construction, it

may indicate that the reserve list may be forwarded by the

Commission upon requisition to the Government within outer limit

of six months from the date on which the original list was

forwarded to the Appointing Authority.

24. However, similar Rules applicable and governing recruitment

to other services under the State of Rajasthan have received

(17 of 44) [SAW-81/2020]

consideration of this Court in plethora of decisions, which we shall

refer to herein below.

25. A learned Single Judge of this Court in the case of Sarita

Chaudhary Versus State of Rajasthan & Others (Supra), was

examining grievance ventilated on account of inaction in operating

the reserve list against vacancy on account of non joining of a

selected candidate, who was placed in the main select list. The

Rule applicable in the aforesaid case contained similar provision

with regard to preparation and operation of main select list as well

as reserve list. Para materia provisions relating to preparation and

operation of select list and reserve list came up for consideration.

Learned Single Judge referred to Supreme Court decisions in the

case of State of Jammu and Kashmir and Others Versus Sat

Pal (Supra) as also Gujarat State Dy. Executive Engineers'

Association Versus State of Gujarat and Others (Supra) and

two other judgments of this Court in the cases of Ghanshyam

Versus State of Rajasthan & Others, 2009 (3) WLC (Raj.)

196 and Dr. Rakesh Mani Versus State of Rajasthan, 1990

(2) WLN 414, It was held that a waiting list would start to

operate only after the posts for which recruitment is conducted,

have been filled and a waiting list would commence to operate,

when offers of appointment have been issued to those emerging

on the top of the merit list. It was further held that the existence

of a waiting list, allows room to the Appointing Authority to fill up

vacancies which arise during the subsistence of the waiting list.

Writ Appeal preferred against the order of the learned Single

Judge was affirmed by the Division Bench of this Court at Principal

Seat, Jodhpur vide its order dated 21.01.2016 in D.B. Civil

(18 of 44) [SAW-81/2020]

Special Appeal (Writ) No.29/2016, State of Rajasthan &

Another Versus Sarita Choudhary & Another. The Division

Bench of this Court referring to para materia rule in that case held

that the Commission while making a recommendation for

appointment is required to prepare a reserve list of suitable

candidates to the extent of 50% of the advertised vacancies and

further that the names of the candidates placed in the reserve list

on requisition be recommended in the order of merit to the

Government within six months from the date on which the original

list is forwarded. Having referred to the scheme of the Rule, it was

noted that the last date for joining service by the selected

incumbents was 21.03.2014 and, therefore, State Government

should have made a requisition as per proviso to Rule 25 of the

Rajasthan Technical Education (Engineering) Service Rules, 2010

applicable in that case to operate the reserve list. Having

appreciated that admittedly no such requisition was made by the

State on the basis of a circular and that the circular being only an

administrative instruction, which could not prevail over a statutory

provision, it was held that the State should have made a

requisition to the Commission to recommend names of the

persons placed in the reserve list and as the learned Single Judge

had allowed the writ petition by taking notice of the statutory

scheme contained in Rule applicable in that case, appeal was

dismissed.

26. In yet another decision in the case of Alka Agarwal Versus

State of Rajasthan & Others (Supra), a learned Single Judge

of this Court relied upon the judgment of the Hon'ble Supreme

(19 of 44) [SAW-81/2020]

Court in the case of State of Jammu and Kashmir and Others

Versus Sat Pal and many other decisions.

On facts that was a case where out of 26 selected

candidates, who were offered appointment, 8 candidates did not

join the service and though the State had requisitioned to RPSC to

forward names of selected candidates from the reserve/waiting

list, the Commission declined to forward names from the reserve

list on the ground that the period of validity of six months of the

reserve list had already expired.

Apparently, in that case also, the Rules governing operation

of the reserve list were para materia.

The State went up in appeal before the Division Bench

though unsuccessfully. Vide order dated 02.11.2017, State's

appeal against the order of the learned Single Judge in case of

Rajasthan Public Service Commission, Ajmer Versus Alka

Agarwal & Others (Supra) was dismissed. The Division Bench

held as below:-

"4. The learned Single Judge has noted various judgments pronounced on the subject and in particular a decision of the Supreme Court reported as (2013) 11 SCC 737 State of Jammu & Kashmir & Ors. Vs. Sat Pal. The Supreme Court categorically held that a waiting list commences to operate after the vacancies for which the recruitment process has been conducted have not been filled up. The Supreme Court noted that one Trilok Nath who was offered appointment on 22.04.2008 did not join. The Supreme Court held that validity of the waiting list period would, therefore, commences from 22.04.2008."

27. It is relevant to mention here that State's appeal against the

Division Bench judgment of this Court at Principal Seat, Jodhpur in

(20 of 44) [SAW-81/2020]

the case of State of Rajasthan & Another Versus Sarita

Choudhary & Another (Supra), was dismissed by the Hon'ble

Supreme Court on 04.07.2016 holding thus:-

"We see no reason to interfere with the impugned order. The special leave petition is dismissed."

28. Relying upon the decision of the Hon'ble Supreme Court in

the case of State of Jammu and Kashmir and Others Versus

Sat Pal (Supra) and Division Bench of this court in the cases of

State of Rajasthan & Another Versus Sarita Choudhary &

Another (Supra) and Rajasthan Public Service Commission,

Ajmer Versus Alka Agarwal & Others (Supra), another

decision of a learned Single Judge of this Court in the case of

Ghanshyam Khatik Versus State of Rajasthan and Another

and other connected batch of petitions (Supra), reiterated

the legal position with regard to the operation of the select list on

the issue as what is the crucial date for reckoning the life of six

months of the reserve list, in the recruitment process. The writ

petitions were allowed with a direction to operate the list.

The order of the learned Single Judge was again assailed in

Writ Appeal by the State, though unsuccessfully. Vide its order

dated 23.01.2019, the Division Bench again reiterated the view

taken earlier by the Single Bench of this Court in the case of

Sarita Chaudhary Versus State of Rajasthan & Others

(Supra) and appeals were disposed off affirming the view taken

by the learned Single Judge. Learned Single Judge of this Court in

the case of Kaushal Kumar Gupta Versus State of Rajasthan

and Others (Supra) having recorded a finding of fact that the

(21 of 44) [SAW-81/2020]

vacancy was available, allowed the petition relying upon the

decision of the Hon'ble Supreme Court in the case of State of

Jammu and Kashmir and Others Versus Sat Pal (Supra) &

the decision of the Single Bench of this Court at Principal Seat,

Jodhpur in the case of Sarita Chaudhary Versus State of

Rajasthan & Others (Supra). Though, RPSC filed appeal against

the said order, the same was disposed off by the Division Bench.

29. In yet another judgment of this Court in the case of

Ravindra Purohit and Others Versus State of Rajasthan and

Others (Supra), relying upon the judgment of the Hon'ble

Supreme Court in the case of State of Jammu and Kashmir and

Others Versus Sat Pal (Supra) and dealing with para materia

rule providing for preparation and operation of the reserve list,

held in favour of the writ petitioners that the State acted illegally

and arbitrarily in not operating the reserve list even though

selected candidates did not join and on account of such non

joining, occasion arose for operating the waiting list, which was in

force and valid on account of non joining of the selected

candidates.

30. From survey of various decisions of this Court, it is vividly

clear that relying upon the Hon'ble Supreme Court decision in the

case of State of Jammu and Kashmir and Others Versus Sat

Pal (Supra), consistent view has been taken by the Co-ordinate

Division Benches of this Court in the cases of State of Rajasthan

and Another Versus Sarita Choudhary and Another (Supra),

Rajasthan Public Service Commission, Ajmer Versus Alka

Agarwal & Others (Supra) and State of Rajasthan & Others

(22 of 44) [SAW-81/2020]

Versus Ghanshyam Khatik & Others (Supra), interpreting

para materia provision relating to preparation and operation of the

reserve list that the reserve list would commence to operate when

the selected candidates in the main list though offered

appointment do not join while the reserve list and vacancy

remains unfilled.

31. Learned counsels for the State as well as RPSC, however,

relied upon various judgments to resist the claim of the writ

petitioners. In the case of Shri Sanjoy Bhattacharjee Versus

Union of India & Others (Supra), on facts, it was found that

the petitioner therein had sought relief for appointment on the

basis that his name was included in the select list, his ranking on

merit was 779 whereas, only 480 vacancies were notified. When

the government proceeded to issue notification for fresh

recruitment, writ petition was filed seeking a direction to operate

the merit list prepared earlier. Obviously in that case, the

petitioner was placed in the merit list at S.No.779 whereas, only

480 vacancies were notified which were filled up and then fresh

process of recruitment was initiated by issuing advertisement. In

that context, the order of the Tribunal dismissing the petition

holding that mere placing a candidate in the select list does not

confer on him any right to appointment was upheld by the Hon'ble

Supreme Court. It was clearly observed therein that selection was

made only for filling up 480 vacancies and after exhaustion

thereof, selection has to be made for the subsequent vacancies

from the open market and, therefore, no direction could be

granted to operate the earlier select list and merely because the

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petitioner therein was put in the waiting list, he does not get any

vested right to appointment.

32. In the case of Raj Rishi Mehra & Others Versus State of

Punjab and Another (Supra), the factual background in which

the petitioners therein claimed appointment was that the

petitioners therein had claimed appointment on the basis of

inclusion of their names in the select list against the posts which

became available due to the resignation of two of the appointees

and the unfilled posts of reserved categories. Peculiar facts of that

case were that the petitioners therein, who belonged to general

category, applied for recruitment against the general category

posts. In the select list prepared by the Commission, the names of

those petitioners were shown at S. Nos.49, 50, 51, 53 & 54.

However, their names were not included in the register meant for

appointment of the selected candidates because 47 candidates,

who were placed above them were appointed against the

advertised posts of general category. From the reserved

categories, only 27 candidates were selected and they were

appointed against the posts earmarked for their respective

categories. Out of two candidates were at S.No.31 and other at

S.No.48, one candidate at S.No.31 in general category post did

not join and in her place, another candidate, who was at S.No.48

was appointed, another candidate was at S.No.32, who was

appointed against a general category post, joined the service but

resigned. The posts vacated by them were not filled and were

included in the advertisement issued.

                             (24 of 44)                                       [SAW-81/2020]


      In   the   meanwhile,          the     petitioners           therein    submitted

representation to the Government for de-reservation of the

reserved category posts for facilitating their appointment, which

was accepted and order was issued for de-reservation of 5 posts.

A communication was sent to the High Court for appointment of

those petitioners against the vacant posts, but the High Court did

not agree.

At this juncture, judicial intervention was sought for issuance

of mandamus to the High Court for appointment against

vacancies. The request of the State Government was, however,

turned down by the High Court that the posts have been

advertised.

In this background, the petitioners' claim of having an

indefeasible right of appointment was turned down by the Hon'ble

Supreme Court applying well settled principles that mere inclusion

in the waiting list does not confer any right and that a waiting list

prepared in an examination conducted by the Commission does

not furnish a perennial source of recruitment and further that it is

operative only for the contingency that if any of the selected

candidates does not join then the person from the waiting list may

be pushed up and be appointed in the vacancy so caused or if

there is some extreme exigency, the Government may, as a

matter of policy decision, pick up persons in order of merit from

the waiting list. A broad legal proposition that the waiting list in

one examination would not operate as an infinite stock for

appointments in future was propounded as a settled legal position

that vacancies cannot be filled up over and above the number of

vacancies advertised.

(25 of 44) [SAW-81/2020]

The aforesaid decision, therefore, does not come to the aid

of the respondents.

33. In the case of Gujarat State Dy. Executive Engineers'

Association Versus State of Gujarat and Others (Supra),

principles applicable in the matter of validity, operation and expiry

of waiting list came up for consideration by the Hon'ble Supreme

Court on the factual premise that the main select list under went

revision in compliance of the order of the Court in a petition filed

by one candidate, whose claim for non inclusion in the list was

held illegal. As a result of revision of the main list, the candidate

who was excluded was included and was eventually appointed

under the orders of the Court. A consequent revision of the

waiting list also took place. At that stage, those who were included

in the waiting list started claiming that they should also be

considered for appointment against available vacancies. Their

lordships in the Hon'ble Supreme Court laid down broad

proposition with regard to validity, operation and expiry of the wait

list as also the limited right of a selected candidate placed not in

the main select list, but in the waiting list as below:-

8. Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination

(26 of 44) [SAW-81/2020]

for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent, authority prepares a waiting list then it is in respect of those ten seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.

9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick

(27 of 44) [SAW-81/2020]

up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list, in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service."

34. It is clear that while examining the legal position, it was

clearly observed that if the selected candidates do not join for one

or the other reason or the next selection or examination is not

held soon, a candidate in the waiting list in the order of merit has

a right to claim that he may be appointed if one or the other

selected candidate does not join and under the scheme of the

Rules, the waiting list remains operative. Therefore, the limited

right of a candidate in the contingency when against the

advertised vacancies, candidates placed in the main merit list,

though offered appointment, have not joined, was recognized.

35. In the case of M.P. Electricity Board The Chief Engineer,

M.P. EB and Another Versus Virendra Kumar Sharma

(Supra) also, broad principles with regard to operation of waiting

list were considered in the light of the scheme of appointment that

(28 of 44) [SAW-81/2020]

as per the scheme applicable in that case that the panel was to

remain valid/current for a particular period and after that period,

the list would lapse and fresh panel has to be prepared. On facts,

it was not a case that the claim was founded on the basis that

even though the wait list remained valid and operative and the

candidate in the merit list did not join, waiting list candidate had

no right to claim appointment.

36. In the case of State of UP & Others Versus Harish

Chandra & Others (Supra), the Hon'ble Supreme Court held

that under the Constitution, a mandamus can be issued by the

Court when the petitioner therein establishes that he has a legal

right to the performance of legal duty by the party against whom

the mandamus is sought and the said right was subsisting on the

date of the petition. It was held that no mandamus can be issued

to direct the Government to refrain from enforcing the provision of

law or to do something which is contrary to law. On facts, it was

found that direction to recruit the respondents, who were included

in the select list which no longer survived when the petition was

filed, no direction could be issued because there was no subsisting

right on the day the petitioner therein approached the High Court.

Again on the issue of right of the party to seek mandamus,

depending upon the peculiar facts of that case that on the day

when the petition was filed, there was no subsisting right on

account of expiry of the select penal, relief was denied.

37. In the Case of State of Bihar and Others Versus Md.

Kalimuddin and Others (Supra), the facts were that even

though list was operative, a decision was taken by the State not to

(29 of 44) [SAW-81/2020]

operate the list and it was held that such a decision could not be

condemned as arbitrary, irrational or mala-fide. Having upheld the

decision of the Government, claim based only on being included in

the select list, was repelled.

Similar is the view taken by the Bombay High Court in the

case of Maharashtra Public Service Commission Versus

Pankaj Kumar C. Dabhire and Others (Supra), on which

reliance has been placed by the learned counsel for the

respondents.

38. In the case of Poonam Versus State of U.P. and Others,

(2016) 2 Supreme Court Cases 779, principle of ratio

decidendi was explained by the Hon'ble Supreme Court thus:-

"39. In this regard, we may refer to the rule stated by Lord Halsbury in Quinn v. Leathem, 1901 AC 495:

"...every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found."

40. A three-Judge Bench in Union of India and others v.

Dhanwanti Devi, (1996) 6 SCC 44 while discussing about the precedent under Article 141 of the Constitution, held that:-(SCC p.p. 51-52, paras 9-10)

"9. Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that in the case of Union of India Versus Hari Krishan Khosla, 1993 Supp. (2) SCC 149 is not a binding precedent nor does it operate as ratio decidendi to be followed

(30 of 44) [SAW-81/2020]

as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates--(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of

(31 of 44) [SAW-81/2020]

the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.

10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents."

In another decision in the case of Uttaranchal Road

Transport Corporation and Others Versus Mansaram

Nainwal, (2006) 6 Supreme Court Cases 366 also, it was held

by the Hon'ble Supreme Court as below:-

"13. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on earlier decision of the Court held that reinstatement was mandated. Reliance on the decision without looking into the factual background of the case before it is clearly

(32 of 44) [SAW-81/2020]

impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well- settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647 and Union of India v. Dhanwanti Devi, (1996) 6 SCC 44). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem 1901 AC 495, Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides."

In one of the recent decision in the case of Dr. N.

Karthikeyan and Others Versus State of Tamil Nadu and

(33 of 44) [SAW-81/2020]

Others, AIR 2022 SC 1543, the principles laid down earlier with

regard to ratio decidendi and as succinctly explained from time to

time were summarized thus:-

"30. As to what is ratio decidendi has been succinctly explained by this Court in the case of Regional Manager and Another v. Pawan Kumar Dubey, (1976) 3 SCC 334 as under:

"7..........Indeed, we do not think that the principles of law declared and applied so often have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts."

31. It would also be relevant to refer to the following observations of this Court in the case of Union of India and Others v. Dhanwanti Devi and Others, (1996) 6 SCC 44:

"9...........It is not everything said by a judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the

(34 of 44) [SAW-81/2020]

well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no

(35 of 44) [SAW-81/2020]

matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi."

39. The ratio decidendi of various judgments, which have been

cited by the learned counsel for the State and RPSC does not

support the case of the respondents to the extent that even if wait

list remains valid and operative when candidate offered

appointment in the main list has not joined, relief cannot be

granted by applying the principle that a candidate included in the

wait list has no legally enforceable right. At least in one of the

circumstances, as has been considered in various judgments,

which we have referred to hereinabove, relied upon by both the

parties where a selected candidate in the main merit list though

offered appointment does not join and the wait list remains valid

and operative, the State would be under an obligation to operate

the wait list unless the State, on facts, comes out with a decision

not to operate wait list and that decision could not be condemned

as arbitrary, irrational or mala-fide.

40. Heavy reliance have been placed on a Division Bench

judgment of this Court in the case of Dr. Rakesh Meena Versus

Rajasthan Public Service Commission & Others (Supra),

wherein, this Court considered the statutory scheme of validity,

operation and expiry of the reserve list and held that after six

months, the list itself would come to an end.

It is relevant to note that all the decisions rendered by

Division Benches of this Court prior to judgment in the case of Dr.

(36 of 44) [SAW-81/2020]

Rakesh Meena Versus Rajasthan Public Service Commission

& Others (Supra), dealt with para materia provision irrespective

of different services under the State. All those rules relating to

preparation, operation and expiry of reserve list are para materia.

On the exact language of the rule with regard to preparation and

operation of the reserve list as in the case of Dr. Rakesh Meena

Versus Rajasthan Public Service Commission & Others

(Supra), the Division Bench judgments of this Court in the cases

of State of Rajasthan & Another Versus Sarita Choudhary &

Another (Supra) & Rajasthan Public Service Commission,

Ajmer Versus Alka Agarwal & Others (Supra) rendered prior

to judgment in Dr. Rakesh Meena Versus Rajasthan Public

Service Commission & Others (Supra) categorically held that

the wait list would commence to operate when the offer of

appointment is given to the selected candidates in the main list

and in eventuality when they do not join. The aforesaid two

decisions were not brought to the notice of the Division Bench of

this Court in the case of Dr. Rakesh Meena Versus Rajasthan

Public Service Commission & Others (Supra) which judgment

was rendered on 03.04.2018. With respect, we have to hold that

the said judgment could not be cited as binding precedent.

In the case of State of U.P. and Another Versus

Synthetics and Chemicals Ltd and Another, (1991) 4

Supreme Court Cases 139, it was held by the Hon'ble Supreme

Court as under:-

"40. 'Incuria' literally means 'carelessness'. In practice per incurium appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of

(37 of 44) [SAW-81/2020]

stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd. (1944 1 KB

718). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, (1962) 2 SCR 558 this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury Laws of England incorprating one of the exceptions when the decision of an Appellate Court is not binding.

In another judgment of the Hon'ble Supreme Court in the

case of Hyder Consulting (UK) Limited Versus Governor,

State of Orissa through Chief Engineer, (2015) 2 Supreme

Court Cases 189, principle of per-incuriam was explained as

below:-

"46. Before I consider the correctness of the aforementioned decisions, it would be necessary to elaborate upon the concept of "per incuriam". The Latin expression "per incuriam" literally means "through inadvertence". A decision can be said to be given per incuriam when the Court of record has acted in ignorance of any previous decision of its own, or a subordinate court has acted in ignorance of a decision of the Court of record. As regards the judgments of this Court rendered per incuriam, it cannot be said that this Court has "declared the law" on a given subject matter, if the relevant law was not duly considered by this Court in its decision. In this regard, I refer to State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, wherein R.M. Sahai, J. in his concurring opinion stated as follows: (SCC p.162, para 40)

"40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per

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ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'."

47. Therefore, I am of the considered view that a prior decision of this Court on identical facts and law binds the Court on the same points of law in a later case. In exceptional circumstances, where owing to obvious inadvertence or oversight, a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. The said principle was also noticed in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC

356."

41. In view of the aforesaid consideration, we have to hold that,

in the present case, under the scheme of Rule 20 of the Rules of

1973, as explained and interpreted in various Division Bench

judgments of this Court, the waiting list would commence to

operate when the candidates placed in the main merit list were

offered appointment and they did not join.

42. There is yet another peculiar feature of the present case

which has impact on the operation of the reserve list. It is not in

dispute that when the RPSC forwarded the main list along with

recommendations to the State Government on 16.10.1997, a writ

petition came to be filed before this Court by one of the aggrieved

candidate Dr. Kamal Narayan Gupta in (S.B. Civil Writ Petition

No.6702/1997) challenging the process of appointment wherein,

an interim order was passed staying the process of selection/

appointment on 05.01.1998. The interim order continued until the

writ petition itself was dismissed on 20.04.1998. Apparently, the

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wait list could not remain operative between the period from

05.01.1998 to 20.04.1998. The respondents themselves treated

the list as operative even after 20.04.1998 because appointment

order of the two selected candidates in the merit list namely;

respondents No.4 & 5 herein (Respondents No.5 & 6 in the writ

petition) was issued on 22.04.1998. That appointment order has

been filed by the respondents themselves along with an additional

affidavit. As entire period from 05.01.1998 to 20.04.1998 had to

be excluded for the purposes of reckoning the validity/currency of

the wait list, the order of appointment of respondents No.4 & 5

herein (Respondents No.5 & 6 in the writ petition) having been

issued on 22.04.1998 in view of the decision of the Division Bench

of this Court in the cases of State of Rajasthan & Another

Versus Sarita Choudhary & Another (Supra), Rajasthan

Public Service Commission, Ajmer Versus Alka Agarwal &

Others (Supra) & State of Rajasthan and Others Versus

Ghanshyam Khatik & Others (Supra), the wait list would

commence to operate only from 22.04.1998 and would remain

valid for next six months as per Rule 20 of the Rules of 1973 that

means till 22.10.1998.

43. The State has failed to come out with any reason whatsoever

as to why it did not requisition the waiting list from RPSC during

this period of six months. It is not the case of the State that the

State had taken a conscious policy decision on relevant

considerations not to operate the wait list. In the absence thereof,

the inaction on the part of the State in operating the wait list for

six months commence form 22.04.1998 would be illegal and

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arbitrary and in such cases, if wait list candidate approaches the

Court of law, provided on the date of filing of the writ petition, the

right was subsisting on account of currency and validity of the

waiting list, relief could be granted in view of decision of the

Hon'ble Supreme Court in the case of Purushottam Versus

Chairman, MSEB & Another (Supra), which has been referred

to hereinabove wherein, the Hon'ble Supreme Court held that the

right of the candidate to be appointed against the post to which he

has been selected, cannot be taken away on the pretext that the

said panel has in the meantime expired and the post has already

been filled up by somebody else. In those cases where the right to

be appointed on the post has been illegally taken away by the

employer like in a case where even though vacancies remain

unfilled on account of non joining of the selected candidates in the

main list and the waiting list remains operative, the candidate in

the wait list has a right to be considered for appointment. That is

what has been observed by the Hon'ble Supreme Court in the case

of State of UP & Others Versus Harish Chandra & Others

(Supra).

44. One of the serious issue raised by the State & RPSC to

challenge the order of the learned Single Judge is that in any case,

the writ petition was filed by the respondents when the merit list

had already expired and was no longer subsisting, therefore, relief

could not be granted. It has been argued before us that even if it

is held that the merit list would commence to operate on

22.04.1998 when respondents No.4 & 5 herein (Respondents No.5

& 6 in the writ petition) were offered appointment, but they did

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not join, the period of six months would expire on 22.10.1998. It

is not a case where the petition was filed while the list was

subsisting and to say that the writ petitioners had a subsisting

right of being considered for appointment against the vacancies

which remained unfilled on account of non joining of respondents

No.4 & 5 herein (Respondents No.5 & 6 in the writ petition), only

on this ground, the writ petition ought to be dismissed. In support

of this contention, learned counsel for the State and RPSC has

placed reliance upon the decision of the Hon'ble Supreme Court in

the cases of State of Bihar and Others Versus Amrendra

Kumar Mishra, (2006) 12 Supreme Court Cases 561 & State

of Orissa & Another Versus Rajkishore Nanda & Others, AIR

2010 Supreme Court 2100, which were relied upon by the

Division Bench of this Court in the Case of Dr. Rakesh Meena

Versus Rajasthan Public Service Commission & Others

(Supra), as far as this issue is concerned. Our attention has also

be invited to similar observations made by the Hon'ble Supreme

Court in the case of State of UP & Others Versus Harish

Chandra & Others (Supra).

45. The legal position in this regard has been considered by the

Hon'ble Supreme Court in the case of State of UP & Others

Versus Harish Chandra & Others (Supra), It was held as

below:-

"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 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

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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 so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law........

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 4.4.1987 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."

46. The aforesaid view was reiterated by the Hon'ble Supreme

Court in the case of State of Bihar and Others Versus

Amrendra Kumar Mishra (Supra), relying upon the

observations made in the case of State of UP & Others Versus

Harish Chandra & Others (Supra) .

Again in the case of State of Orissa & Another Versus

Rajkishore Nanda & Others (Supra), where on facts, it was

found that the person had approached the Court after expiry of

the select list, it was held as below:-

"15. Select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.

It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the Select List. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the Court at a belated stage. (Vide J. Ashok Kumar v. State of Andhra Pradesh & Ors., (1996) 3 JT (SC) 225; State of Bihar & Ors. v. Md. Kalimuddin & Ors.,

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AIR 1996 SC 1145: (1196 AIR SCW 691); State of U.P. & Ors. v. Harish Chandra & Ors., AIR 1996 SC 2173: (1996 AIR SCW 2785); Sushma Suri v. Government of National Capital Territory of Delhi & Anr., (1999) 1 SCC 330; State of U.P. & Ors. v. Ram Swarup Saroj, (2000) 3 SCC 699: (AIR 2000 SC 1097: 2000 AIR SCW 779); K. Thulaseedharan v. Kerala State Public Service Commission, Trivendrum & Ors., (2007) 6 SCC 190: (AIR 2007 SC (Supp) 253: 2007 AIR SCW 3211); Deepa Keyes v. Kerala State Electricity Board & Anr., (2007) 6 SCC 194: (2007 AIR SCW 7311); and Subha B. Nair & Ors. (AIR 2008 SC 2760: 2008 AIR SCW 4591) (supra).

47. The aforesaid settled legal position, therefore, has to be

applied in the facts of the present case to find out whether, even

though the reserve list would commence to operate only after

22.04.1998, the writ petitioners approached the Court by filing

petition before the expiry of the waiting list/reserve list. The

records of the case, however, show that the writ petition was filed

by the respondents/writ petitioners after expiry of the reserve list.

We have already held herein, on facts, that the reserve list/waiting

list attained its natural demise on 22.10.1998. The writ petitioners

failed to approach this Court and filed petition while their right to

seek appointment was subsisting. The writ petitions were filed

after validity of the wait list expired. Therefore, even though on

other contentions raised by the learned counsel for the

respondents-writ petitioners with which we have agreed to, they

having failed to file writ petition during the subsistence and

validity of the wait list/reserve list, only on this count, the writ

petitions were liable to be dismissed. As held by the Hon'ble

Supreme Court, under the Constitution, a mandamus can be

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issued by the Court when the petitioner therein establishes that he

has a legal right to the performance of legal duty by the party

against whom the mandamus is sought and the said right was

subsisting on the date of the petition. As on facts, the writ

petitioners did not have subsisting right on the date they had

approached this Court, no mandamus could be issued to direct the

Government to refrain from enforcing the provision of law or to do

something which is contrary to law.

48. In the result, the appeals filed by the State of Rajasthan and

RPSC against the judgment of the learned Single Judge are

allowed. The order passed by the learned Single Judge is set aside

and the writ petitions filed by respondents-writ petitioners, Dr Shri

Krishan Joshi and Dr. Shri Mohan Sharma are dismissed.

49. No order as to costs.

(ANOOP KUMAR DHAND),J (MANINDRA MOHAN SHRIVASTAVA),J

Sanjay Kumawat-1-2

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