State Of Rajasthan vs Gajendra Upadhyay
2022 Latest Caselaw 1224 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                   D.B. Spl. Appl. Writ No. 87/2021

1.     State Of Rajasthan, Through The Secretary, Education
       Department,          Government            Of     Rajasthan,         Secretariat,
       Jaipur, Rajasthan.
2.     The    Secretary,          Department           Of     Sanskrit       Education,
       Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
3.     The Director, Sanskrit Education Jaipur, District Jaipur,
       Rajasthan.
                                                                        ----Appellants
                                       Versus
1.     Gajendra Upadhyay S/o Prabha Shankar Upadhyay, Aged
       About 43 Years, R/o Village Post Anjana, Tehsil Garhi,
       District Banswara, Rajasthan.
2.     Vimal Kumar Upadhyay S/o Shambhu Lal Upadhyay, Aged
       About 41 Years, R/o Village Semaliya, Post Badgaon,
       Tehsil District Banswara, Rajasthan.
                                                                      ----Respondents
                                  Connected With
                  D.B. Spl. Appl. Writ No. 349/2020
1.     The State Of Rajasthan, Through Principal Secretary Rural
       Development              And        Panchayati           Raj         Department,
       Government Of Rajasthan Secretariat, Jaipur.
2.     Principal Secretary, Education Department (Elementary)
       Government Of Rajasthan Secretariat, Jaipur.
3.     The Director/commissioner, Sanskrit Education Rajasthan,
       Jaipur.
                                                                        ----Appellants
                                       Versus
Mohd. Aslam S/o Shri Mohd. Ganni, Aged About 28 Years, R/o
Ward   No.4      Near      Karni      Temple,       Tarnagar        District,    Churu,
Rajasthan.
                                                                      ----Respondent
                   D.B. Spl. Appl. Writ No. 63/2021
1.     The    State        Of      Rajasthan,          Through        Its     Secretary,
       Department            Of       Sanskrit         Education,           Government
       Secretariat, Rajasthan, Jaipur.

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2.       The Director, Sanskrit Educaiton, Shiksha Sankul, J.l.n.
         Marg, Jaipur (Rajasthan)
3.       The Joint Director, Sanskrit Education, Shiksha Sankul,
         J.L.N. Marg, Jaipur (Rajasthan)
                                                                         ----Appellants
                                          Versus
Natvar Lal Choubisa S/o Bhagvan Lal Choubisa, Aged About 42
Years,       R/o     VPO     Basunder          Chhoti,        Tehsil    Aspur,   District
Dungarpur, Rajasthan.
                                                                        ----Respondent


For Appellant(s)                :     Mr. Salman Agha for
                                      Mr. Anil Kumar Gaur, AAG.
For Respondent(s)               :     Mr. Sushil Bishnoi.
                                      Mr. Mahaveer Singh.



               HON'BLE MR. JUSTICE SANDEEP MEHTA
                   HON'BLE MR. JUSTICE SAMEER JAIN

                                    JUDGMENT

Judgment pronounced on                        :::             27/01/2022
Judgment reserved on                          :::             08/12/2021


BY THE COURT : (PER HON'BLE MEHTA, J.)

1. These three intra Court appeals have been preferred by the

State of Rajasthan challenging the orders dated 09.01.2020,

11.11.2020 and 02.07.2020 passed by learned Single Bench in

S.B. Civil Writ Petition Nos.11505/2019, 11917/2019 and

2015/2020 respectively.

The controversy arises out of a recruitment process

conducted by the State for the posts of Teacher Grade III (Level-

II) in the subjects of Mathematics Science/ English for the Non-

TSP areas. A recruitment notification dated 06.02.2018 was issued

inviting applications from the eligible candidates for the purpose of

recruitment on 428 posts throughout the State of Rajasthan in

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accordance with Rajasthan Sanskrit Education State and

Subordinate Services (School Branch) Rules, 2015 (hereinafter

referred to as 'the Rules of 2015'). The advertisement stipulated

that the selection would be made on merit based on the marks

obtained in RTET/REET and the marks obtained in Graduation,

subject to securing passing marks in RTET/REET. The ratio of

marks for preparing the merit list was distributed as 70% of

marks obtained in RTET/REET and 30% of those secured in

Graduation. After issuance of the notification, the applications

were received and the merit list was prepared on the basis of

criteria of selection. The first select list was issued for a total of

428 posts as per the merit of the candidates in their respective

categories. Simultaneously, a reserve list of 215 candidates was

prepared by the Selection Committee and thus, the total number

of candidates invited for document verification was 1.5 times of

the available seats so as to account for absentees, if any, and to

ensure that the advertised posts did not remain vacant after

completion of the recruitment process.

Be that as it may. It appears that only 446 out of total 643

candidates called for document verification, reported in the

verification process for the Science/ Mathematics subjects. Of

these, 407 candidates were those whose names were placed in

the main select list whereas 39 were those whose names were

placed in the reserve list. After document verification, 392

candidates were offered appointment vide order dated

07.01.2019. However, only 54 candidates joined whereas 338 of

the invited candidates did not join the posts offered. As large

number of seats remained vacant, the recruitment authority wrote

a letter dated 04.02.2019 to the Administrative Department which

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was replied vide communication dated 24.05.2019 indicating that

as more than 6 months had lapsed since the issuance of the merit

list and the reserve list of the selected candidates, there was no

legal sanctity for filling up of the remaining vacant posts and that

these posts would have to be accounted for in the forthcoming

years. Accordingly, the recruitment process in question was

closed.

2. The respondent Mohd. Aslam filed the writ petition

No.11505/2019 for assailing the final select list dated 07.01.2019.

The said writ petition was allowed by learned Single Bench of this

Court vide judgment dated 09.01.2020 while issuing the following

directions to the appellants herein:

"(i) The respondents shall prepare State level merit list, of course, subject to fulfilling eligibility criteria (If a candidate is entitled for relaxation, the same shall be given).

(ii) After preparation of merit list, the respondents shall firstly invite candidate from merit No.644 to 1000 operating the reservation and carry out their document verification.

(iii) List of suitable candidates/select list shall be published, while giving them at least 15 days' time for joining.

(iv) In case, categorywise posts are not filled after documents verification of candidates upto merit list No.1000 and/or consequent to non-joining of persons selected, the seats remain vacant; the respondents shall publish a press note showing the number of vacant posts (categorywise) and call candidates from amongst merit list Number 1000 to 1500 for document verification.

(v) List of suitable candidates/select list shall be published, while giving them at least 15 days' time for joining.

(vi) In case, seats in any category still remain vacant, they will keep on calling candidates in a group of 500 from merit

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list No.1500 to 2000; 2000-2500 and so on and do the needful as directed in point No.(ii) and (iii) above.

(vii) The process will continue until all the 428 seats are filled or the merit-list/category-wise merit list is exhausted, while applying the law relating to reservation and carry forward of vacancies.

(viii) The respondents shall publish list of candidates called for document verification on their official website, while giving the scheduled date(s) and place of document verification. A press release to this effect will also be given in newspaper having circulation throughout the State."

The candidates placed at par with the candidate Mohd.

Aslam, namely Gajendra Upadhyay and Vimal Kumar Upadhyay

(petitioners in Writ Petition No.11917/2019) and Natvar Lal

Choubisa (petitioner in Writ Petition No.2015/2020) also filed writ

petitions which have been allowed by orders dated 11.11.2020

and 02.07.2020 respectively on the basis of the judgment in the

case of Mohd. Aslam. These three special appeals have been

preferred by the State of Rajasthan for assailing the judgments

passed by the leaned Single Bench in the cases of Mohd. Aslam,

Gajendra Upadhyay & Anr. and Natvar Lal Choubisa.

3. Drawing the Court's attention to the judgment in the case of

Mohd. Aslam, learned counsel Shri Salman Agha associate to Shri

Anil Kumar Gaur, learned AAG, vehemently and fervently urged

that the directions given by the learned Single Judge in the

impugned Judgment are totally contrary to the selection rules and

the terms and conditions of the recruitment advertisement. He

urged that the learned Single Judge has wrongly observed that the

criterion of selection i.e. the aggregate weightage to the marks

obtained in RTET/REET and the marks secured in the Graduation is

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alien to the Rules of 2015. By virtue of Rule 25 of the Rules of

2015 which have been amended vide notification dated

21.10.2016, the respondents need not have resorted to a written

examination for conducting the selection process and the criterion

of selection based on aggregation of marks obtained in RTET/REET

and Graduation, was perfectly justified. He urged that the

directions given by the learned Single Judge while accepting the

writ petition of Mohd. Aslam virtually amounts to complete

overhaul of the selection process in question even though its life

had come to an end long back. The directions so given

tantamounts to interference in the policy decisions of the State

which are beyond the scope of powers of Judicial review. He

further urged that there is no foundation behind the observations

made in the order of the learned Single Bench that the list dated

04.09.2018 was not comprehensive merit list but was simply a

categorywise merit list of the first 428 candidates. He averred that

the process which was adopted by the respondents while issuing

the select list of 428 candidates and the reserve list of 258

candidates, is perfectly in consonance with the selection norms. A

comprehensive merit list was prepared; vertical and horizontal

reservations were applied and thereafter, the list of total 428

candidates, which is unquestionably a final merit list, was issued

with categorywise distribution. The reserve list of 215 candidates

was also issued after accounting for the reservation norms. He

submitted that simply because sufficient number of candidates did

not join the posts after document verification, a direction cannot

be given to fill in the posts as the selection process has to be

closed after expiry of six months because the lists do not survive

thereafter. Reliance was placed on a Division Bench Judgment

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dated 09.08.2018 rendered by the Jaipur Bench of this Court in

the case of RPSC vs. Jata Shankar Yadav (D.B. Special

Appeal (Writ) No.823/2018) and it was submitted that after

expiration of period of six months, the recruiting authority cannot

be directed to fill the posts by fishing for the eligible candidates

beyond the reserve list. He buttressed that the directions given by

the learned Single Bench at para No.30 of the impugned order are

totally illegal and hence, the impugned orders deserve to be

quashed and set aside.

4. Per contra, Shri Sushil Bishnoi and Shri Mahaveer Singh,

Advocates representing the respondents, vehemently and

fervently opposed the submissions advanced by learned counsel

Shri Agha. They urged that the fact remains that despite all efforts

of the recruitment authority, as many as 356 posts remained

vacant despite availability of eligible candidates akin to the

respondents. Thus, the recruiting authority should have acted by

calling those qualified candidates whose names did not surface in

the first two lists. Depriving the young contenders from chance of

selection and leaving the cadre of Teachers vacant would be

seriously detrimental to the entire education system. They thus

implored the Court to dismiss the appeals and affirm the orders

passed by the learned Single Bench.

5. We have given our thoughtful consideration to the

submissions advanced at bar and, have gone through the

impugned orders as well as material available on record.

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6. First and foremost, we may observe that the finding recorded

in the order dated 09.01.2020 passed in Mohd. Aslam's case

regarding the recruitment process being contrary to the Rules of

2015, is totally unfounded. The learned Single Bench observed

that since the respondents did not hold the written examination,

Rule 26 could not be resorted to as the operation of the said Rule

was only permissible if the selection process had been made as

per Rule 25 of the Rules of 2015 which prescribe that the selection

process must be undertaken on the basis of a written examination

and as this procedure was not adhered to, Rule 26 would have no

application. In this regard, learned counsel representing the

appellants has drawn the Court's attention to the notification

dated 21.10.2016 issued by the State Government whereby, Rule

25 has been amended by adding the rider "if there is a provision

of it in the rules" to the expression "written examination" and

substituted the whole with the same. Similar substitution has been

made in Rule 26 of the Rules of 2015. Acting in furtherance of the

said amendment, the department issued an order dated

06.11.2017 wherein, it has been stipulated that the selection for

the post of Teacher Grade III (Level-II) would be made on the

basis of aggregate marks secured in RTET/REET and the marks

secured in Graduation in the ratio of 70:30. Thus, there is no

doubt in the mind of this Court that the selection process based on

merit list prepared by proportionate aggregation of these marks,

was compliant to the Rules of 2015. The finding recorded by the

learned Single Bench that the list of 428 candidates issued by the

respondents is not a final list and that the list of 215 candidates

cannot also be termed to be a reserve list, is also without

foundation. Suffice it to say that the observation made by the

(9 of 12) [SAW-87/2021]

learned Single Bench at para 16 of the impugned order that the

respondents were required to publish a consolidated categorywise

merit list of all eligible candidates and then invite them for

document verification, is neither rational nor justified. As per

Clause 12(4) of the Recruitment Notification, the merit list would

have to be prepared on the basis of informations provided by the

candidates and the final eligibility of the candidates would be

dependent on document verification. Thus, the initial merit list had

to be prepared on the basis of the available information which was

provided by the candidates along with their application form. The

first merit list was thus rightly termed to be a temporary select list

prepared by accounting for reservation norms and the eligible

candidates were called for document verification. This list was

published on 04.09.2018 and the reserve list of around 50% of

the main list too was prepared on the very same day wherein also,

reservations have been provided. Thus, the observations made by

the learned Single Bench that no reserve list has ever been

published, is unsustainable in view of the fact that the reserve list

was unquestionably published on 04.09.2018 albeit terming it to

be a waiting list. The nomenclature is hardly relevant as in

substance, it was a reserve list. The number of candidates in this

list is around half of the candidates declared selected as per the

main select list dated 04.09.2018. We are of the view that if the

directions given by the learned Single Bench that first a

consolidated categorywise merit list of all eligible candidates would

have to be prepared and then, the candidates standing in merit

would be invited for document verification on the basis of their

respective merit position were to be complied, then application of

vertical and horizontal reservation would become almost

(10 of 12) [SAW-87/2021]

impossible. This process would result into complications in the

selection process.

7. In our opinion, the controversy at hand is squarely covered

by the following observations made by a Division Bench of this

Court in the case of RPSC vs. Jata Shankar Yadav (Supra)

wherein, it was held as below:

"The paras quoted above show how the lists have to be arranged. It is not in dispute that the revised list was arranged in order of merit by applying the rule of reservation. After arranging the main list, the reserve list was prepared out of the left out candidates. It was again for the different category which includes the open/SC/ST & OBC category. The reserve list was arranged from and amongst left out meritorious categories by arranging them in order of merit. The recommendation was made from and amongst the candidates of the category who failed to join the post. For illustration a candidate from OBC category failed to join the post, the reserve list of OBC has been used to make recommendation for appointment. Similarly, a candidate from open category has failed to join the post, the name of candidate from the reserve list of open category has to be recommended. In the said process, reserve list is not to be reshuffled.

There is no provision and practice to reshuffle the reserve/shadow list. It is stated by the counsel for the RPSC that even the reserve list has been arranged strictly in order of merit and while arranging open category, the name of candidates of SC/ST & OBC category could also find place in order of merit and thereupon reserve list of SC/ST OBC category was prepared thus rule of reservation has been applied therein also. If that is the position then the non- appellants have no case.

In any case, we are of the opinion that for filling up the vacant post, a direction cannot be given for reshuffling of the reserve list. It is more so when the prayer of the non-

appellants was not to reshuffle the reserve list but to result as a whole by excluding names of those who did not join the post. The non-joining of the post never result in reshuffling of the result. The reserve list is prepared to make up the

(11 of 12) [SAW-87/2021]

contingency like the post remained vacant due to non- joining. It is otherwise considered to be in public interest, as selection is not only time consuming but involves public exchequers. The purpose of reserve list is to avoid immediate selection for the post remained vacant on account of non-joining or for other reasons. The direction of the learned Single Judge is quoted hereunder for ready reference to show what would be the out come of the direction, if applied. Whether due to the non-joining of the post by the candidates, reserve list is to be redrawn :

"In the result, the respondents are directed to redraw the reserve list strictly in accordance with principle enunciated by the Apex Court of the land in the case of Anil Kumar Gupta (supra). Thereafter, names of the candidates from the reserve list, strictly on the basis of merit, shall be recommended for appointment and forwarded to the State Government to fill up the vacancies, become available owing to non-joining of the selected candidates in the merit select list. The respondents would do the needful to ensure compliance of this order as expeditious as possible; preferable, within two weeks from the date a certified copy of this order is presented."

The direction quoted above shows nothing but to redraw the reserve list in accordance with the principles laid down in the case of Anil Kumar Gupta & Ors. Vs. State of U.P. & Ors reported in 1995 (5) SCC 173.

The direction aforesaid has been given in ignorance of fact that non-joining of the post by few candidates cannot result in redraw of reserve list and otherwise if we go with the statement of learned Additional Advocate General, the reserve list was drawn after arranging name in order of merit of the left out candidates. It was again by applying the rule of reservation. The list for open category consists of the name not only of general but reserve caste and for that the reference of result, enclosed with the writ petition has been given. The fact aforesaid was not brought to the notice of the learned Single Judge thus on facts and principles of law, we are unable to endorse the view taken by the learned Single Judge. The examination agency has arranged the list based on the marks of the left out candidates after applying the rule of the reservation."

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8. In wake of the discussion made herein above, we are of the

view that the appellants have issued the main select list and the

reserve list strictly in accordance with the rules of selection and

that the recruitment process does not suffer from any illegality

whatsoever. The directions given by the learned Single Bench in

the impugned orders would completely jeopardize the process of

selection and it would virtually become impossible to apply the

mandatory reservations against the seats in the order of merit.

Needless to say that once the period of six months has

passed, the recruitment authority cannot be directed to invite the

candidates beyond the reserve list because the selection process

has to be given a finality at some point of time. The criterion of six

months has been prescribed in the Circular dated 13.01.2016

issued by the Department of Personnel, Government of Rajasthan

and the same is absolutely rational and cannot be made subject

matter of judicial review. The candidates, who have not been

selected, would have the opportunity of applying in the upcoming

recruitment processes because the remaining vacant seats would

be accounted for therein.

9. As an upshot of the above discussion, the impugned orders

dated 09.01.2020, 11.11.2020 and 02.07.2020, cannot be

sustained. Hence, the same are quashed and set aside.

The special appeals are allowed in these terms.

10. A copy of this order be placed in each file.

                                   (SAMEER JAIN),J                                         (SANDEEP MEHTA),J

                                    Tikam Daiya/-









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