Vimla vs State Of Rajasthan ...
2023 Latest Caselaw 7959 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2560/2021

1. Vimla D/o Sukh Ram W/o Arun Kumar, Aged About 27 Years, R/o Vpo Neepal Tehsil Rani, District Pali (Raj.).

2. Surygyan Yogi S/o Kishan Lal Yogi, Aged About 34 Years, R/o Deawan Tehsil Sahapura District Jaipur (Raj.).

3. Mangi Lal Dagar S/o Mahoru Lal, Aged About 39 Years, R/ o Village Bhankrota Khurd Post Ajayrajpura Tehsil Sanganer District Jaipur (Raj.).

4. Prem Choudhary D/o Badri Lal Choudhary W/o Madan Lal Choudhary, Aged About 26 Years, R/o Village Rampuraunti Tehsil Sanganer, District Jaipur (Raj.).

5. Pukhraj Lovevanshi S/o Mangi Lal, Aged About 31 Years, R/o Village Piplya Talab, Post Nasirabad, District Bakani (Raj.).

6. Ashok Kumar Atal S/o Jagdish Prashad Atal, Aged About 33 Years, R/o Village Udaipuria, Tehsil Chomu, District Jaipur (Raj.).

7. Anil Kumar S/o Akshay Kumar, Aged About 37 Years, R/o Ward No. 17, Dablivas Molvi, Dabli Rathan, Tehsil And District Hanumangarh (Raj.).

8. Seema Meena D/o Ghasi Lal Meena, Aged About 28 Years, R/o Village Rohda Kalan, Post Khuri Kalan, Tehsil And District Dausa (Raj.).

9. Tarun Kumar Sharma S/o Murari Lal Sharma, Aged About 26 Years, R/o Village Gordhanpura, Post Nayabas, Tehsil Neem Ka Thana, District Sikar (Raj.).

10. Ganesh Prajapat S/o Cheetar Lal Prajapat, Aged About 26 Years, R/o Village Kharoi Post Ghar, Tehsil Dooni, District Tonk (Raj.).

----Petitioners Versus

1. 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 Elementary Education, Rajasthan Bikaner.

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----Respondents

For Petitioner(s) : Mr. Sushil Bishnoi For Respondent(s) : Mr. Deepak Chandak for Mr. Pankaj Sharma, AAG

JUSTICE DINESH MEHTA

Order

05/10/2023

1. By way of present writ petition, the petitioners have prayed

thus:-

"(a) The respondents may kindly be directed to call the three time candidates for document verification against the vacant posts and thereafter prepared a list of suitable/successful candidates and offer the appointment to them and also prepared a waiting list of incumbents after examine their suitability strictly in accordance with the provisions of 277-A of Rule 1996 and operate the waiting list in case of non-joining of suitable candidates.

(b) The respondents may kindly be directed to give the appointment to the petitioners as Teacher Grade III Level 2 (Social Studies) pursuant to the advertisement dated 31.07.2018 (Annex.1) with all consequential benefits.

(c) Any other relief which the Hon'ble Court considers just and proper in the facts and circumstances of the case my kindly be granted in favour of the petitioners.

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(d) Costs of Writ Petition may kindly be awarded to the petitioners."

2. Mr. Deepak Chandak, associate to Mr. Pankaj Sharma,

learned Additional Advocate General, at the outset, submitted that

a co-ordinate Bench of this Court in a bunch of writ petitions led

by S. B. Civil Writ Petition No. 3874/2022 : Santosh Kumar

Nyol & Ors. Vs. State of Rajasthan & Ors., decided on

30.01.2023 in almost similar fact-situation has rejected prayer

made by the concerned petitioners and has held that waiting list

cannot be directed to operate after 4 years of initiation of

recruitment process.

3. Mr. Sushil Bishnoi, learned counsel for the petitioners was

not in a position to distinguish the law laid down by judgment

dated 30.01.2023 passed in the case of Santosh Kumar Nyol

(supra) from the present case, except the fact that the posts

involved in the case of Santosh Kumar Nyol (supra) and present

case was different.

4. Heard learned counsel for the parties and upon perusal of

the judgment in the case of Santosh Kumar Nyol (supra), this

Court is of the view that principle laid down in the case of Santosh

Kumar Nyol (supra) would equally apply in the present case,

particularly when more than 4 years have elapsed after the

recruitment was initiated.

5. In the case of Santosh Kumar Nyol (supra), a co-ordinate

Bench of this Court has held thus:-

"What can be summed up from the above precedents is that the waiting list can be operated

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only when the selected candidates do not join or the Government takes a policy decision to do so in cases of extreme exigency. In no other circumstance, the waiting list can be operated. Further, no person, even who finds place in the select list, has an indefeasible right to be appointed.

All the judgments relied upon by learned counsel for the petitioners pertain to the cases wherein the wait list was either not prepared/declared by the Department or the same was not operated in terms of law. It was in those circumstances, the Courts granted indulgence and directed the State Authorities to declare the wait/reserve list and to operate the same. The said judgments would not apply to the present matters as herein are the matters where the State has not only declared the wait/reserve list but has also operated the same till the last. The prayer in the present writ petitions is essentially for declaration of the second wait/reserve list. In the specific opinion of this Court, there is no law which provides for declaration of any second wait or reserve list after the first wait list having been operated and exhausted.

It is therefore clear that on the date of filing of the present writ petitions, the petitioners had no subsisting right which can be held to be enforceable. Admittedly, on the date when the petitions were filed, the first wait/reserve list had exhausted and the petitioners who did not find place in the said wait list, had no subsisting right on that date.

In Dr Shri Krishan Joshi's case (supra) while relying upon the judgment of the Hon'ble Apex Court in State of UP & Others Versus

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Harish Chandra & Others, (1996) 9 Supreme Court Cases 309, the Court observed as under:

"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 gain 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."

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As held by the Hon'ble Apex Court in Harish Chandra's case and the Division Bench of this Court in Shri Krishan Joshi's case, a mandamus can be issued by the Court only when it is established on record that the party praying for the same has a legal right to get the performance of a legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of filing of the petition. Admittedly, the present petitioners did not have any subsisting right on the date the present petitions were preferred and therefore also, no mandamus can be issued to direct the Government to do something which is contrary to law.

In terms of law, even a person who finds place in the select list cannot claim a right to be appointed and here are the persons who did not find place even in the reserve list and are seeking a mandamus to be issued for declaration of the second wait list after the first wait list having been issued, operated and exhausted. In the specific opinion of this Court, the wait/reserve list dated 14.09.2021 was totally in consonance with the Rules of 1996. No vacancies can be held to survive in perpetuity and no State instrumentality can be directed to issue and operate the second wait list totally in contravention to the provisions of law.

So far as the orders pertaining to the months of February, March and April, 2022 relied upon by the learned counsel for the petitioners are concerned, a perusal of the same makes it clear that the same have been issued qua the candidates who found place in the wait/reserve list dated 14.09.2021 and whose names had been forwarded to the concerned Zila Parishad by the

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authorised agency and after the document verification, the concerned Zila Parishad, finding them suitable, issued the appointment orders in their favour. A bare perusal of the orders also clarifies that the decision by the concerned Zila Parishad had been taken latest by March, 2022 and not thereafter. Meaning thereby, the said decisions had been taken within the prescribed period of 6 months of the issuance of the reserve/ wait list dated 14.09.2021 i.e. till the period the wait list survived. Therefore, it cannot be concluded that the State has provided appointments to the candidates after expiry of 6 months from the issuance of reserve list.

Regarding the prayer made by the petitioners for issuance of the directions similar to that in the case of Kuldeep Kumar Vs. State of Rajasthan; S.B. Civil Writ Petition No.2094/2019 (decided on 25.02.2021), suffice is to say that the said prayer can also not be granted as in the said case also, the directions were for the declaration and operation of the first wait list only. So far as such directions are concerned, the same had already been issued qua the present recruitment in the case of Urmila Devi and as observed in the preceding paras, the directions as issued have already been complied with by the State. Therefore, no further directions need to be issued now.

In view of above observations, this Court is not inclined to interfere in the present writ petitions and the same are hereby dismissed.

The stay petitions also stand dismissed."

6. Following the judgment in the case of Santosh Kumar Nyol

(supra), the present writ petition is dismissed.

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7. The stay application also stands dismissed accordingly.

(DINESH MEHTA),J 74-akansha/-

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