Rajasthan High Court - Jodhpur
Dheeraj Khator vs The State Of Rajasthan ... on 16 October, 2024
Author: Farjand Ali
Bench: Farjand Ali
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 10947/2024
1. Nitisha Choudhary D/o Shri Pratap Singh, Aged About 21
Years, Village Norangpura, Tehsil Khetri, District Neem
Ka Thana (Raj.).
2. Saroj Dudi D/o Shri Ramkaran Dudi, Aged About 21
Years, Dudiyo Ka Bara, Village Ratkuriya, Tehsil
Bhopalgarh, District Jodhpur (Raj.).
----Petitioners
Versus
1. The State Of Rajasthan, Through Its Secretary, Ayurved
And Indian Medicine Department, Government Of
Rajasthan, Secretariat, Jaipur.
2. Deputy Secretary, Ayurved, Yoga And Naturopathy
Medicine, Unani, Siddha And Homeopathy (Ayush)
Department, Secretariat, Jaipur.
3. The Director, Ayurved Department, Ashok Marg, Loghal
Road, Savitri College Circle, Ajmer.
4. Dr. Sarvepali Radhakrishnan Rajasthan Ayurved
University, Through Its Registrar, Karwar, Nagaur Road,
Jodhpur (Raj.).
----Respondents
Connected With
S.B. Civil Writ Petition No. 10949/2024
1. Sunita Kumari D/o Suresh Kumar, Aged About 31 Years,
R/o Plot No. 397, Fci Godan, Daijar, District Jodhpur.
2. Sangeeta W/o Rampalsingh, Aged About 30 Years, R/o
Tadamal, Berawal, Tadas, District Nagaur.
3. Alok Singh S/o Randheer Singh, Aged About 34 Years,
R/o Village Post - Dhormui, Tehsil And District
Bharatpur.
4. Suresh S/o Karna Ram, Aged About 31 Years, R/o Village
Post Dayasagar Khara, Tehsil Phalodi, District Jodhpur.
----Petitioners
Versus
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1. The State Of Rajasthan, Principal Secretary, Ayush
(Ayurved, Homeopathy And Unani) Department
Government Of Rajasthan, Jaipur.
2. The Deputy Secretary To The Government, Ayush
Department, Jaipur.
3. The Director, Ayurved Department, Ajmer.
4. The Director, Homeopathy Medicine Department, Jaipur.
5. The Registrar, Rajasthan Ayurved University, Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 10995/2024
Geeta D/o Bhagirath Ram, Aged About 23 Years, R/o Village
Post - Newa Kanasar, Tehsil Bap, District Phalodi, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Principal Secretary, Ayush
(Ayurved, Homeopathy And Unani) Department
Government Of Rajasthan, Jaipur.
2. The Deputy Secretary To The Government, Ayush
Department, Jaipur
3. The Director, Ayurved Department, Ajmer.
4. The Director, Homeopathy Medicine Department, Jaipur
5. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan
Ayurved University, Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 11022/2024
1. Hari Singh Meena S/o Shri Banshidhar Meena, Aged
About 30 Years, Village Todpura, Tehsil Navalgarh,
District Jhunjhunu (Raj.).
2. Ravina Meena D/o Shri Rohitashwa Meena, Aged About
28 Years, Village Todpura, Tehsil Navalgarh, District
Jhunjhunu (Raj.).
3. Sunil Kumar S/o Shri Manni Ram, Aged About 29 Years,
Village Todpura, Tehsil Navalgarh, District Jhunjhunu
(Raj.).
4. Suman Kumari Jatav D/o Shri Jokh Ram Jathav, W/o
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Shri Rajesh Kumar, Aged About 38 Years, Ward No. 50,
Behind New Rpsc, Bandiyagram, Ajmer (Raj.).
5. Radhika Pareek D/o Shri Brajnandan Pareek, Aged About
30 Years, 58, Fatehram Ka Tiba, Brahmpuri, Jaipur
(Raj.).
6. Purshottam Nagar S/o Shri Ashok Nagar, Aged About 30
Years, Village Gotan, Tehsil Merta City, District Nagaur
(Raj.).
7. Rakesh Kumar Mina S/o Shri Foru Lal Mina, Aged About
24 Years, Village Mandir Ka Jhupada, Bei, Tehsil
Jahazpur, District Bhilwara (Raj.).
8. Pratibha Naruka D/o Shri Satyapal Singh Naruka, Aged
About 26 Years, 106, Jharkhand Mahadev Mandir,
Quveens Road, Prempura, Vaishali Nagar, Jaipur (Raj.).
9. Gunjan Sharma D/o Shri Dulichand Sharma, Aged About
28 Years, Ward No. 55, Prempura, Vaishali Nagar, Jaipur
(Raj.).
----Petitioners
Versus
1. The State Of Rajasthan, Through Its Secretary, Ayurved
And Indian Medicine Department, Government Of
Rajasthan, Secretariat, Jaipur.
2. Deputy Secretary, Ayurved, Yoga And Naturopathy
Medicine, Unani, Siddha And Homeopathy (Ayush)
Department, Secretariat, Jaipur.
3. The Director, Ayurved Department, Ashok Marg, Lohagal
Road, Savitri College Circle, Ajmer.
4. Dr. Sarvepali Radhakrishnan Rajasthan Ayurved
University, Through Its Registrar, Karwar, Nagaur Road,
Jodhpur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 11091/2024
1. Pooja Sharma D/o Shri Gajanand Sharma W/o Shri
Ashok Kumar Pareek, Aged About 39 Years, Resident Of
Village Alipur, Tehsil Chirawa, District Jhunjhunu (Raj.).
2. Surendra Pareek S/o Shri Ramdeo Pareek, Aged About
40 Years, Resident Of Behind Dalmai Boys School,
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Chirawa, Tehsil Chirawa, District Jhunjhunu (Raj.).
3. Priyanka D/o Shri Virendra Singh, Aged About 23 Years,
Resident Of Village Kalera Ka Bas, Jaitpura, Tehsil And
District Jhunjhunu (Raj.).
4. Ankit Sharma S/o Shri Om Prakash Sharma, Aged About
28 Years, Resident Of Shiv Colony, Near Shiv Mandir,
Ward No. 32, Churu (Raj.).
----Petitioners
Versus
1. The State Of Rajasthan, Through Its Secretary, Ayurved
And Indian Medicine Department, Government Of
Rajasthan, Secretariat, Jaipur.
2. Deputy Secretary, Ayurved, Yoga And Naturopathy
Medicine, Unani, Siddha And Homeopathy (Ayush)
Department, Secretariat, Jaipur.
3. The Director, Ayurved Department, Ashok Marg, Lohagal
Road, Savitri College Circle, Ajmer.
4. The Director, Homeopathic Medicine Department, Ayush
Bhawan, Sector-26, Pratapnagar, Jaipur.
5. Dr. Sarvepali Radhakrishna Rajasthan Ayurved
University, Through Its Registrar, Karwar, Nagaur Road,
Jodhpur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 11643/2024
1. Atul Kumar Dadheech S/o Pradeep Kumar Dadheech,
Aged About 24 Years, R/o Magrapunjla, Gokul Ji Ki
Piyao, Near Cbi Office, Jodhpur, Raj.
2. Kusum Kanwar D/o Lal Singh Mertiya, Aged About 31
Years, R/o Plot No. 95, Khasra No. 26/107, Dhapi
Marble, Banar Road, Jodhpur.
3. Priyanka D/o Mohan Lal, Aged About 21 Years, R/o
Ridmal Nagar Bhojakor, Tehsil Dechu, Phalodi.
4. Monika Kumari D/o Bhagat Singh, Aged About 21 Years,
R/o Relya Ki Dhani, Gudha Gorji, Jhunjhunu.
5. Manisha Kumari D/o Omprakash Dhabhai, Aged About
23 Years, R/o Ward No. 03, Sanganeriya Kuaa,
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Nawalgarh, Jhunjhunu.
6. Rashisa Kumari Manth D/o Mahesh Kumar, Aged About
27 Years, R/o Dhayalon Ka Bass, Kari, Jhunjhunun.
7. Rajesh Gurjar S/o Rupa Ram, Aged About 30 Years, R/o
Ward No. 24, Chunachok, Nawalgarh, Jhunjhunun, Raj.
8. Priyanka Kumari D/o Anil Kumar Mahan, Aged About 28
Years, R/o Balwantpura, Balwantpura, Jhunjhunun.
----Petitioners
Versus
1. The State Of Rajasthan, Principal Secretary, Ayush
(Ayurved, Homeopathy And Unani) Department
Government Of Rajasthan, Jaipur.
2. The Deputy Secretary To The Government, Ayush
Department, Jaipur.
3. The Director, Ayurved Department, Ajmer.
4. The Director, Homeopathy Medicine Department, Jaipur.
5. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan
Ayurved University, Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 11647/2024
1. Dheeraj Khator D/o Nemichand, Aged About 24 Years,
R/o Plot No. 58, Khasara No. 107, Ramdev Nagar, Banar
Road, Nandri, District Jodhpur.
2. Manohar Lal Prajapat S/o Ashuram, Aged About 25
Years, R/o Kumharo Ki Dhani Magasar, Chadi, Phalodi,
District Phalodi.
3. Manohar Singh S/o Kishore Singh, Aged About 31 Years,
R/o Village Post Basni Hari Singh, Tehsil Bhopalgarh,
District Jodhpur.
4. Shshee Kant Swami S/o Ashwini Kumar, Aged About 24
Years, R/o Ward No. 13, Village Post Babai, Tehsil Khetri,
Jhunjhunu.
5. Mohit Kumar Sharma S/o Dalip Kumar Sharma, Aged
About 27 Years, R/o Village Post Pandreu Tibba, Tehsil
Taranagar, District Churu.
----Petitioners
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Versus
1. The State Of Rajasthan, Principal Secretary, Ayush
(Ayurved, Homeopathy And Unani) Department
Government Of Rajasthan, Jaipur.
2. The Deputy Secretary To The Government, Ayush
Department, Jaipur.
3. The Director, Ayurved Department, Ajmer.
4. The Director, Homeopathy Medicine Department, Jaipur.
5. The Registrar, Rajasthan Ayurved University, Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 11836/2024
1. Swati Maheria D/o Khem Chand, Aged About 24 Years,
C/o Suresh R/o Paharganj-Ii, White House, Post
Mandore, Jodhpur
2. Geeta Kumari D/o Khem Chand, Aged About 40 Years,
Village Bhojnagar, Tehsil Navalgarh, District Jhunjhunu,
Rajasthan.
3. Pooja Kumari D/o Ram Prasad, Aged About 31 Years,
Village Shivsinghpura, District Sikar, Rajasthan.
4. Poonam Kumari D/o Ranveer, Aged About 31 Years,
Village Jakhal, Tehsil Navalgarh, District Jhunjhunu,
Rajasthan.
5. Kumari Asha D/o Rajesh Kumar Khedar, Aged About 22
Years, Village Jakhal, Tehsil Navalgarh, District
Jhunjhunu, Rajasthan.
6. Mansi D/o Ranjeet Kumar, Aged About 24 Years,
Nawalri, Jhunjhunu.
7. Bulkesh Kumari D/o Shrikishan Kharinta, Aged About 26
Years, Ward No.8, Sonthali, Post Titanwar, Tehsil
Nawalgarh, District Jhunjhunu
----Petitioners
Versus
1. The State Of Rajasthan, Principal Secretary, Ayush
(Ayurved, Homeopathy And Unani) Department
Government Of Rajasthan, Jaipur.
2. The Deputy Secretary To The Government, Ayush
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Department, Jaipur
3. The Director, Ayurved Department, Ajmer.
4. The Director, Homeopathy Medicine Department, Jaipur
5. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan
Ayurved University, Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 12267/2024
Himanshu Sharma S/o Vishnu Kumar Sharma, Aged About 28
Years, R/o Near Ayurvedic Hospital, Undu, District Barmer,
Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Principal Secretary, Ayush
(Ayurved, Homeopathy And Unani) Department
Government Of Rajasthan, Jaipur.
2. The Deputy Secretary To The Government, Ayush
Department, Jaipur
3. The Director, Ayurved Department, Ajmer.
4. The Director, Homeopathy Medicine Department, Jaipur
5. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan
Ayurved University, Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 15436/2024
1. Ravi Kumar S/o Gordhan Singh, Aged About 24 Years,
Village Talchhera, Tehsil Nadbai, District Bharatpur
(Raj.).
2. Sarika Kumari D/o Ajay Kumar, Aged About 23 Years,
Village/ Post Jharkai, Tehsil Nadbai, District Bharatpur
(Raj.).
----Petitioners
Versus
1. The State Of Rajasthan, Through Its Secretary, Ayurved
And Indian Medicine Department, Government Of
Rajasthan, Secretariat, Jaipur.
2. Deputy Secretary, Ayurved, Yoga And Naturopathy
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Medicine, Unani, Siddha And Homeopathy (Ayush)
Department, Secretariat, Jaipur.
3. The Director, Ayurved Department, Ashok Marg, Lohagal
Road, Savitri College Circle, Ajmer.
4. The Director, Homeopathic Medicine Department, Ayush
Bhawan, Sector-26, Pratap Nagar, Jaipur.
5. Dr. Sarvepaliradhakrishnan Rajasthan Ayurved
University, Through Its Registrar, Karwar, Nagaur Road,
Jodhpur (Raj.).
----Respondents
S.B. Civil Writ Petition No. 16612/2024
Brijendra Panwar S/o Shri Ramavtar Gurjar, Aged About 30
Years, Resident Of Village - Kalarang Ka Pura, Post Kheda
Jamalpur, Tehsil Hindon City, District Karauli (Raj.).
----Petitioner
Versus
1. The State Of Rajasthan, Through Secretary, Ayurved
And Indian Medicine Department, Government Of
Rajasthan, Secretariat, Jaipur (Raj.).
2. Deputy Secretary, Ayurved, Yoga And Naturopathy
Medicine, Unani, Siddha And Homeopathy (Ayush)
Department, Secretariat, Jaipur, (Raj.).
3. The Director, Ayurved Department, Ashok Marg, Lohagal
Road, Savitri College, Ajmer (Raj.).
4. Registrar, Dr. Sarvepali Radhakrishnan Rajasthan
Ayurved University, Karwar Nagaur Road, Jodhpur
(Raj.).
----Respondents
For Petitioner(s) : Mr. Yashpal Khileree with Nitin Gehlot
and Vinita
Mr. M.S. Godara
Ms. Varsha Bissa
Mr. Varda Ram Choudhary
For Respondent(s) : Mr. Narendra Singh Rajpurohit, AAG
with Mr. Sher Singh Rathore
Mr. Suniel Purohit
Ms. Rakhi Choudhary, Dy.GC
For Applicant(s) : Ms. Tanya
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HON'BLE MR. JUSTICE FARJAND ALI
Order
ORDER RESERVED ON ::: 08/10/2024
ORDER PRONOUNCED ON ::: 16/10/2024
REPORTABLE
BY THE COURT: -
1. The instant writ petitions under Article 226 of the
Constitution of India have been preferred by the petitioners
being aggrieved by the action of respondents department for not
granting fair chance of consideration to the petitioners in the
ongoing selection process of Ayurveda Compounder/Nurse Junior
Grade and for quashing of the impugned order dated 28.06.2024
(Annexure 4 of S.B. Civil Writ Petition No. 10949/2024) passed
by the Rajasthan Government's Department of Ayurveda, Yoga
& Naturopathy, Unani, Siddha and Homeopathy (AYUSH
Department) whereby the seats have been added to the post of
Compounder/Nurse Junior Grade in advertisement No. 1/2023
dated 03.10.2023 (05.10.2023) (Annexure 1 of S.B. Civil Writ
Petition No. 10949/2024).
2. The issue involved in all these matters is similar and
therefore with the consent of the parties, all the matters have
been heard together and being decided by the instant common
order. For the purpose of convenience, the facts reflected in this
order would be of S.B. Civil Writ Petition No. 10949/2024.
3. Briefly stating the facts of the case are that the Central
Government and State Government for the promotion and
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advancement of the alternate medicine system have made
Department of AYUSH (hereinafter referred as "Respondent
Department") which manages and regulates all these alternate
departments including Ayurveda, Homeopathy and Unani. For
this reason, respondent department decided to recruit/appoint
people and for the same purpose recruitment process has been
made. The respondent department issued an advertisement for
appointment on the post of Nurse/Compounder Junior Grade in
the State vide advertisement No. 1/2023 dated 03.10.2023
(Annexure 1) and this is governed by Rajasthan Ayurvedic,
Unani, Homeopathy and Naturopathy Subordinate Service
Rules,1966 (hereinafter referred as "The Rules of 1966"). The
applications were called accordingly and the notifications & other
terms and conditions were also annexed with the said
advertisement. The prescribed qualification for all three sets viz.,
Ayurvedic, Homoeopathy and Unani for the post of Compounder/
Nurse Junior Grade has been mentioned in the advertisement
itself, which is three years diploma or four years B.Sc. in
Ayurveda Nursing from any University of India which is
established in accordance with law. The condition precedent for
the candidates was that they have to obtain their educational
qualification before the last date of filling of the form i.e.,
05.11.2023 and proof of which would have to be submitted by
them at the time of document verification. Further, it is
mentioned that the qualification stated in the advertisement were
also in consonance to the Rules of 1966. Some of the petitioners
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applied for the recruitment process in their respective categories
for which the bifurcation has been mentioned in the
advertisement for filling up the total 947 posts of
Compounder/Nurse Junior Grade for direct recruitment on the
regular post. Out of total 947 posts, 495 posts are for Ayurveda
Department (Non-TSP = 456 + TSP = 39); 288 posts for
Homeopathy Department (Non-TSP = 265 + TSP = 23) and 164
posts for Unani Department (Non-TSP =160 + TSP= 4). As per
Rule 9 of the Rules of 1966, the actual number of vacancies
occurring during the financial year shall be determined by the
Appointing Authority on 1st of April every year. These writ
petitions consists two categories of participants/candidates i.e.,
the candidates who could not even fill the application forms as
they were not having their degrees at the relevant time because
of the prolongment in receiving their degrees as they were in
COVID batch and government stretched their academic courses
time to time and owing to the above they could not obtained
their degrees before the cut-off date. (As mentioned in S.B. Civil
Writ Petition No. 10947/2024). The another category was the
candidates who though applied for the post in Ayurveda
Department for which the copy of application form has been
annexed as Annexure 2 but were not called for document
verification as they were not holding requisite qualification for
falling in the consideration zone as they only had marksheets of
their qualification but had not received their degrees till the last
date of submission of forms and were also lacking in work
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experience so no bonus marks were granted to them. Some of
the petitioners were already doing services in Government
Institutions in Dr. Sarvepalli Radhakrishnan Rajasthan Ayurveda
University (As mentioned in S.B. Civil Writ Petition
No.10949/2024) but the period of service was not in accordance
with the want of the advertisement.
4. After completion of process for filling of forms and
document verification, the respondent department decided to
enhance/add the number of seats in the said selection process
vide order dated 28.06.2024 (Annexure 4) whereby 247 posts in
Ayurveda and 68 posts in Homeopathy Department were further
added, as per which, the total posts for Ayurveda comes to 742
out of which 683 posts were for the Non-TSP area and 59 posts
for TSP area and in Homeopathy the total number of posts comes
to 356 out of which 328 posts were for the Non-TSP area and 28
posts for TSP. A copy of the revised notification of enhanced
posts is annexed with the writ petition (Annexure 9). Petitioners
submitted their representation to the Government raising
concern to the effect that since they were not at all responsible
for not getting the desired qualification before the cut-off date
and the same had happened due to force majeure due to which
their degrees were delayed, therefore they should be allowed for
the increased posts (Annexure 11) however no response from the
respondent department was received. These enhanced/added
seats were only for those candidates who were eligible till
05.11.2023, which was the last date as per the advertisement
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No. 1/2023 dated 03.10.2023 (Annexure 1). The petitioners who
are eligible to participate in the examination process on the date
of issuance of order of enhancement of seats i.e., 28.06.2024
(Annexure 4) have not been given opportunity, therefore, by way
of filing instant writ petitions, a prayer has been sought for
issuance of a direction to the respondent department to not
include the increased/added vacancies in the Ayurveda and
Homeopathy and to quash the order dated 28.06.2024
(Annexure 4) whereby the directions have been passed regarding
increasing of seats. A prayer has been made to declare issuance
of the advertisement No. 1/2023 dated 03.10.2023 (Annexure 1)
and the order dated 28.06.2024 (Annexure 4) illegal, arbitrary
and contrary to law. A further prayer has been made for passing
necessary directions to the respondent department for issuance
of fresh advertisement for the subsequently determined posts for
the Compounder/Nurse Junior Grade Examination.
5. A reply of the writ petition has been filed by the respondent
department refuting the allegations made in the writ petition and
it is contented that no arbitrariness was adopted rather the
respondent department passed the order in accordance with the
legal provisions and therefore the writ petition is not
maintainable. It is contended that as per Rule 16 of The Rules of
1966, the respondent authorities are authorized and empowered
to increase/enhance the seats in the already advertised seats up
to 50% of the total advertised seats if the vacancies are accrued
due to promotion etc. subsequent to issuance of the
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advertisement. It is specifically contented that since the
petitioners were not eligible to participate in the examination as
per the conditions mentioned in the advertisement No. 1/2023
dated 03.10.2023 (Annexure 1) therefore they have no right
either to participate in the ongoing examination or to challenge
the subsequent order of addition of seats. The department has a
legal right to add the seats in the vacancy and therefore the
petitioners cannot challenge the order which is passed in
accordance with the legal provision. It is empathetically and
repeatedly contented in the reply that as per the advertisement
issued by the respondent department only those persons can be
selected on the post of Compounder/Nurse Junior Grade who
were eligible till the last date of filing of the application forms. A
specific legal plea has been raised since the order has been
passed in accordance with the Rules of 1966, therefore unless a
challenge is made to the rule itself, a writ petition challenging a
legal order cannot be maintained. By averring all those grounds
including the others it was prayed that the writ petition be
dismissed since the same lacks merit.
6. After completion of the pleadings learned counsel for both
the parties canvassed their oral submissions.
7. Learned counsel for the petitioners submits that the actions
of respondent department for not granting fair chance to the
petitioners is illegal, arbitrary and in violation of Articles 14 and
16 of the Constitution of India. Some of the petitioners applied
for the post of Nurse/Compounder Junior Grade as per the
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advertisement No. 1/2023 dated 03.10.2023 (Annexure 1) and
filled application forms accordingly (Annexure 2) but were not
called for document verification as they were not holding enough
marks and qualification required. It was further argued that there
has been an enhancement in posts of Ayurveda
Nurse/Compounder vide order dated 28.06.2024 (Annexure 4)
for which the last date has been kept the same as it was when
the initial advertisement was issued by the respondent
department i.e., 05.11.2023 and the same is never published for
perusal of the public at large. The another list of candidates for
document verification was immediately issued. The counsel for
the petitioners further submit that the State Government due to
various reasons has been revising posts in various recruitment
process but for such revision or enhancement the State
Government reopens the consideration zone for those candidates
who may have now become eligible for any reasons. It is
submitted that in many appointments such as on the post of
medical officer in Ayurveda Department in one instance in the
matter of post of Medical Officer (Dental) when enhancement in
the seats was done, the date of filing up the forms has been
extended by the department or online application forms were re-
opened and revised notification was issued respectively as
annexed in the writ petition (Annexure 7 and Annexure 8). The
petitioners emphasised on the point that the
enhancement/addition which took place is of large number but
the respondent department have not re-opened the consideration
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zone. It was further pointed out by the counsel that Clause 9 of
the advertisement No. 01/2023 dated 03.10.2023 (Annexure 1)
states that the experience will be calculated till the last date of
applying online application forms for the recruitment of these
posts. If the consideration zone gets re-opened then the
application forms can also be filled again and the last date of
education/professional qualification will also extend resulting in
which the petitioners who were otherwise not eligible shall now
become eligible and in that event. The experience gained by the
candidates will be considered till now and they will be eligible for
bonus marks and will become eligible for the recruitment
process. The respondent department is also a part of State
Government and the said inaction by them is a violation of
fundamental rights. The representation has also been submitted
by the petitioners but nothing has been done by the respondent
department. The petitioners approached this Court with the
prayer that the order dated 28.06.2024 (Annexure 4) for
enhancing the seats passed by the respondent department be
quashed and set aside and the entire recruitment process may be
quashed accordingly. Further, it was prayed that the respondent
department may be directed to re-open the application forms in
pursuance to the enhancement of seats vide order dated
28.06.2024 (Annexure 4) and respondent department may be
restrained from proceeding with the said recruitment process for
subsequently added posts. To substantiate their submission,
[2024:RJ-JD:37111] (17 of 43) [CW-10947/2024]
learned counsel for the petitioners have placed reliance on the
following judgments :-
a) Rakhi Ray and Ors. Vs. The High Court of Delhi
and Ors. reported in AIR 2010 SC 932.
b) Arup Das and Ors. Vs. State of Assam and Ors.
reported in (2012) 5 SCC 559.
c) K. Lakshmi Vs. State of Kerala reported in (2012)
4 SCC 115.
d) High Court of Kerala Vs. Reshma A. and Ors.
reported in (2021) 3 SCC 755.
e) Mohd. Rashid Vs. The Director, Local Bodies,
New Secretariat and Ors. reported in AIR 2020 SC
1075.
f) Shankarsan Dash Vs. Union of India (UOI)
reported in AIR 1991 SC 1612.
g) Sugar Singh Meena S/O Shri Ratti Ram Vs. Union
of India [D.B. Civil Writ Petition No. 7256/2022]
decided on 25.05.2022.
8. Per contra, learned counsel for the respondent department
vehemently opposed the submissions made by the counsel for
the petitioners. He submits that the total posts can be increased
or reduced according to the Rules of 1966 and so the seats have
been added before selection as per the advertisement No.
1/2023 dated 03.10.2023 (Annexure 1) and it is as per Rule 16
of the Rules of 1966. The Rule 16 of Rules of 1966 provides for
addition and reduction in posts, if intimation of additional
requirement is received before selection process is completed. He
[2024:RJ-JD:37111] (18 of 43) [CW-10947/2024]
further argued that the respondent department received an
intimation of additional requirement during the recruitment
process as certain posts have become vacant due to promotions.
With this view, the respondent department increased the posts in
pursuance of Rule 16 of the Rules 1966 and in accordance with
the note provided in advertisement No. 1/2023 dated 03.10.2023
(Annexure 1) and the rule specifies that the added seats should
not exceed 50% of the total vacancies. He contended that Rule 9
of the Rules of 1966 which states determination of vacancies
starts with "subject to the provisions of Rules" so the vacancies
are determined every year subject to the provisions of Rules of
1966 and Rule 16 of the Rules of 1966 provides that if intimation
of the additional requirement is received before selection process
is completed then the same can be added. The proviso to Rule 16
is in consonance with law as the same has increased
opportunities for the persons who have already become part of
the recruitment process after filling the application form as they
were eligible at that time but the petitioners were not eligible on
that day, so equity lies in favour of the persons who filled the
application forms to get advantage of increase posts before
selection process comes to an end. He further submitted that the
50% rule has been made with a view that the persons who were
eligible at the initial stage of the process can be given
opportunity for the added seats and the advantage of add on
seats can be given to the candidates who filled the form at initial
date of advertisement. The 50% addition or enhancement in
[2024:RJ-JD:37111] (19 of 43) [CW-10947/2024]
seats is in accordance with law and is rational and quashing of
additional posts as prayed by the petitioners would show that
petitioners would take part in the recruitment for which they
were not eligible and therefore prayed for dismissing the writ
petition. Learned counsel for the respondent department further
argued that since the addition of seats has been made in
accordance with the express rule therefore unless a prayer for
declaration of particular rule to be ultra-vires is not made; the
instant petition would not be maintainable before this Court.
Learned counsels in support of their contention have placed
reliance the following judgments rendered by Hon'ble the
Supreme Court:-
a) Alok Kumar Singh Vs. State of Uttar Pradesh &
Ors. reported in (2019) 14 SCC 692.
b) All India SC and ST Employees Association &
Anr. Vs. A. Arthur Jeen & Ors. reported in (2001)
6 SCC 380.
c) Anupal Singh & Ors. Vs. State of U.P. & Ors.
reported in (2020) 2 SCC 173.
9. I have heard learned counsel for the petitioners as well as
the learned counsel for the respondents and perused the material
placed on record. After anxious consideration of the submissions
and material available with the petition, following is the
observation of this Court.
10. Indisputably, some of the petitioners applied for the
appointment on the post of Nurse/Compounder Junior Grade and
did not qualify for the same on the last date mentioned in the
[2024:RJ-JD:37111] (20 of 43) [CW-10947/2024]
advertisement. After sometime, the respondent department
increased/enhanced/added seats to the existing post debarring
the candidates / applicants / incumbents / aspirants from
applying for the added on seats as the last date of filling up the
application form is still the same as it was notified i.e.,
05.11.2023. While looking into the facts of the case, it is felt that
there would be three types of categories which will be restricted/
excluded from affording opportunity by the order impugned and
the same would be discriminatory for them. The three categories
are as follows:-
i. The candidates who did not receive their degrees
till the time forms were open i.e., 05.11.2023
but now they have received their degrees and
have become eligible for the add on posts/seats
but they shall be deprived from competing in
examination for the seats which are added now.
ii. In COVID times, because of the lockdown
government stretched the courses repeatedly
and due to which the petitioners who took
admission in three years course of Diploma in
AYUSH Nursing and Pharmacy (DAN & P) at
respondent university in the month of March
2020 was completed in the month of April 2024
instead of April 2023 and the degrees for the
same were issued in the year 2024 to the
candidates and this happened for no fault on the
[2024:RJ-JD:37111] (21 of 43) [CW-10947/2024]
part of the petitioners. Government was
responsible for the delay to complete the course
and to provide degrees and as a consequence of
which; till the initial date of recruitment they did
not receive their degrees. Now, at the present
date, they have their degrees in hand but shall
be precluded from the process if the opportunity
of filling the forms will not be given for the posts
which are being enhanced through the order
under assail.
iii. Candidates who were not interested at the time
of the initial advertisement maybe they were
working somewhere else or they were not
interested in the post that time but now they are
desirous to participate, and such aspirants
cannot be prohibited from applying for the
Government post as they are also the citizens of
this country and have fundamental rights and
are eligible now when huge vacancy has been
increased in current process.
The bare perusal of the above categories clearly shows the
discrimination and a case of not giving a fair chance to the
petitioners or to the candidates who wants to contest for the
same but virtually the opportunity to them have been denied
which is a violation of their fundamental rights. Further, it has
been observed that the petitioners also approached the
[2024:RJ-JD:37111] (22 of 43) [CW-10947/2024]
respondent department through representation with a plea that
the candidates who passed in the batch of 2020 i.e., during
COVID period are not included for the appointment by the
department though the delay had not occasioned due to their
fault but they have been deprived of getting a job and the
respondent department snubbed their plea and did not pay any
heed to their representation. It has also been noticed that the
communication of additional requirement of 420 seats due to
DPC was issued by the concerned authority on 22.01.2024
(Annexure 9 of S.B. Civil Writ No. 11836/2024) but the additional
seats which were added/enhanced were 247 posts for Ayurveda
department which is almost fifty percent of what has been
advertised initially in the advertisement. Further, it has been
observed that the accrual date of the vacancies occurred and
number of seats enhanced does not match and the order for
inclusion of seats was issued after almost 8 months of initial
advertisement.
11. Now moving on to the eligibility criteria and qualification of
the candidates. It is clear from the facts that when the
advertisement No. 1/2023 dated 3.10.2023 (Annexure 1) was
issued, some of the petitioners were not eligible as their marks
were not reaching the consideration zone as they did not receive
their degrees being a COVID batch and also no bonus marks
were granted to them as they did not have the requisite
experience. Meanwhile, the petitioners did not stop their services
under the government institutions on which they were working
[2024:RJ-JD:37111] (23 of 43) [CW-10947/2024]
previously and in some months the enhancement of the seats
notification dated 28.06.2024 (Annexure 4) was issued. Now,
they have gained the experience required and have also
completed their Diploma courses in AYUSH Nursing and
Pharmacy (DAN & P) so, presently they are eligible for the post.
It is the case of the petitioners that due to outbreak of Pandemic
COVID-19, the examination calendar of the diploma course in
(DAN & P) was extended repeatedly and due to which, the three
years course of diploma was completed in the month of April,
2024 instead of April, 2023 for no fault of the petitioners and as
a necessary consequence of which, the petitioners who obtained
the requisite diploma certificate in the month of April, 2024
instead of April, 2023, abstained from participating in the
competitive examination as advertised in advertisement No.
1/2023 dated 03.10.2023 (Annexure 1) since the last date of
filling the form for the same was 05.11.2023. The respondent
department did not issue a different advertisement rather they
enhanced the seats in the initial recruitment and the seats
enhanced were 247 in Ayurveda Department and 68 in
Homeopathy which is a large number as now the candidates who
thought of not applying previously but now upon enhancement of
seats wanted to apply but deprived of by the order under
challenge. It is their right to participate in the examination which
will be done now for increased seats but not giving them
opportunity to fill the form or debarring them from doing so will
violate their fundamental right. This Court is of the view that this
[2024:RJ-JD:37111] (24 of 43) [CW-10947/2024]
is the most unreasonable thing to keep the same date of
submission of application forms for those who were eligible at the
initial date when the advertisement was first issued as it was
almost 8 months from the date of notification of add on seats.
The candidates eligible to compete the exam on the date of
increase of 200 and more seats are kept away from the
opportunity.
12. During the course of the arguments, upon query made by
the Court; learned counsel for the parties supplied to this Court a
copy of a letter dated 04.03.2024 showing the intimation of the
vacancies based on which a decision for adding on 247 more
seats (Annexure 4) in already advertised seats was taken. The
authenticity and genuineness of letter dated 04.03.2024 is not
under dispute and both the learned counsel for the parties did
not dispute to its existence and therefore upon consensus of
learned Additional Advocate General and Counsel for the
petitioners, the letter dated 04.03.2024 has been made part of
the record and thus the same has been taken on record. For
ready reference the letter dated 04.03.2024 is being reproduced
as under:-
jktLFkku&ljdkj
funs'kky; vk;qosZn foHkkx] jktLFkku&vtesj
v'kksd ekxZ] lkfo=h pkSjkgk] vtesj ¼jktLFkku½ 305001
Øekad i-1@izfr&3@ulZ&dEik- fu;qfDr@2023@1955 fnukad% 4@3@2024
mi 'kklu lfpo]
vk;q"k foHkkx]
t;iqj
fo"k;%& dfu"B ulZ&dEikm.Mj ds inksa ij fu;qfDr gsrq tkjh foKfIr la[;k
1@2023 esa inksa dh o`f) dh tkus ckcr~A
[2024:RJ-JD:37111] (25 of 43) [CW-10947/2024]
egksn;]
mijksDr fo"k;kUrxZr fuosnu gS fd orZeku esa jktLFkku vk;qosZfnd] ;wukuh]
gksE;ksiSfFkd ,oa izkd`frd fpfdRlk lsok fu;e] 1966 ds rgr 495 fjDr inksa dh iwfrZ
gsrq foKkiu la[;k 1@2023 fnukad 05-10-2023 dks tkjh fd;k x;k Fkk] ftlds Øe
esa fu;qfDr laca/kh dk;Zokgh izfØ;k/khu gSA
orZeku esa foHkkxkUrxZr ulZ&dEikm.Mj ds fjDr inksa dh fLFkfr fuEukuqlkj
gS%&
1- uflZx v/kh{kd xzsM&I 8 in
2- uflZx v/kh{kd xzsM&II 29 in
3- ofj"B dEikm.Mj&ulZ& 325 in
4- dfu"B dEikm.Mj&ulZ& 989 in
5- dfu"B dEikm.Mj&ulZ 367 in
¼xzkeh.k lsok fu;e 2008 ds rgr½
dqy 1718 in
jktLFkku vk;qosZfnd] ;wukuh] gksE;ksiSfFkd ,oa izkd`frd fpfdRlk lsok fu;e
1966 ds rgr orZeku esa dfu"B ulZ&dEikm.Mj ds dqy 989 in fjDr gSa ftuesa ls
495 inksa gsrq foKkiu tkjh fd;k gqvk gS rFkk 125 in foKkiu la[;k 1@2021 o
2@2021 ds rgr ekuuh; U;k;ky; }kjk gksYM fd;s gq;s gksus ls fu;qfDr gsrq 369 in
fjDr jgrs gSaA
vr% jktLFkku vk;qosZfnd] ;wukuh] gksE;ksiSfFkd ,oa izkd`frd fpfdRlk lsok
fu;e 1966 ds fu;e 16 ds vuqlkj foKkfir inksa esa 50 izfr'kr rd dh o`f) fd;s
tkus dk izko/kku gksus ds QyLo:i foKkiu la[;k 1@2023 ¼ftldh HkrhZ laca/kh
dk;Zokgh izfdz;k/khu gS½ esa 247 inksa dh o`f) fd;s tkus dh Lohd`fr iznku djkos
rkfd foHkkxh; vkS"k/kky;@fpfdRlky;ksa ds fjDr inksa dks Hkjk tkdj foHkkxh;
vkS"kk/kky;@fpfdRlky;ksa dk lqpk: :i ls lapkyu fd;k tk ldsA
Hkonh;k
¼es?kuk pkS/kjh½
vfrfjDr funs'kd
¼iz'kklu½
It is the kind of intimation, reference of which is made in
Rule 16 regarding accrual of vacancies during selection process.
The letter dated 04.03.2024 states increase of posts in circular
no. 1/2023 issued for recruitment to the posts of
Compounder/Nurse Junior Grade and further it is mentioned in
the letter that at present 1718 posts in total are vacant including
all the categories and out of which the total seats for the post of
Nurse/Compounder Junior Grade post is 989 posts out of which
495 posts were already advertised in the advertisement No.
[2024:RJ-JD:37111] (26 of 43) [CW-10947/2024]
01/2023 dated 03.10.2023 (Annexure 1) and 125 seats of
advertisement No. 1/2021 and 2/2021 were put on hold by the
Court in an another litigation and the matter is sub-judice. The
posts which are still vacant were 369 and out of which only 247
were added in already advertised posts (Annexure 4).
13. After minutely observing, a glaring aspect as is observed
that the respondent department enhanced the seats according to
the Rule 16 of the Rules of 1966 which enables the department
to add on additional posts if required provided it should not
exceed 50% of the advertised vacancies if received by them
before selection. For ready reference, the Rule 16 of the Rule,
1966 has been reproduced herein below:-
"16. Inviting of Application. Applications for
direct recruitment to post in the Service shall be
invited by the *"Appointing Authority", by
advertising the vacancies to be filled in the official
Gazette @ "or" in such other manner as may be
deemed fit.
% "The advertisement shall contain a clause that a
candidate who accepts the assignment on the post
being offered to him/her shall be paid monthly fixed
remuneration at the rate fixed by the State
Government from time to time during the period of
probation and the scale of pay of the post as shown
else-where in the Advertisement shall be allowed
only from the date of successful completion of the
period of probation mentioned in the respective
Recruitment Rules:"
Provided that while selecting candidates for the
vacancies so advertised the *"Appointing
Authority", may, if intimation of additional
requirement not exceeding 50% of the advertised
vacancies, is received by them before selection, also
select suitable persons to meet such additional
requirement."
[2024:RJ-JD:37111] (27 of 43) [CW-10947/2024]
A perusal of Rule 16 of the Rules of 1966 makes it
abundantly clear that the rule framers intended to make a
provision enabling the authority to include more seats in the
same recruitment process if during the process some additional
requirements are intimated to them which is not more than half
of the total vacancy advertised but when the intimated additional
requirement is more than half of the advertised posts then a new
process has to be started. It is clear from the above provision
that Appointing Authority upon receipt of an additional
requirement, may include additional requirement but the same
should not exceed 50% of the advertised vacancies which was
received by them before selection. Here, the respondent
department unduly take advantage of the rule; by splitting the
total posts which were vacated due to DPC and for that they
added on more posts to the already advertised vacancy. The rule
does not envisage splitting of the intimation of additional
requirement, rather the intent is to give a discretion to the
Authority to include all additional requirements in the selection
process which accrued subsequent to issuance of the
advertisement and for which they were intimated. Now the issue
pondered upon by this Court would be that the enhanced number
of seats are so high that many aspirants/participants are getting
debarred from applying for the post as the last date has not been
extended by the department. As going by the rule it cannot go
beyond 50% of the initial advertised seats but the initial posts
were already a large number so if the respondent department
[2024:RJ-JD:37111] (28 of 43) [CW-10947/2024]
wanted to increase the number of seats, they may issue a whole
new advertisement as the number of seats are too large. Nothing
is mentioned in the rule about splitting/dividing the posts/seats
in parts. Upon asking Shri Narendra Rajpurohit, learned
Additional Advocate General made an inquiry from the
respondent office and it is apprised to this Court that the very
first time during the establishment post enforcement of the
Constitution of India and the relevant laws; the total number of
vacancy were 240 and after that in span of 10 years between
1956 to 1966, total of 211 were recruited, so this shows the
circumstances and facts before the rule framers as to why the
Rule 16 of the Rules of 1966 was made. The rule when made
back then, the purpose must be that the vacancies may occur in
a year due to employees promotions, death, retirement, leaving
a position, so there should be a provision to add/enhance the
number of seats in an already advertised posts and in earlier
times there used to be less number of posts which were vacated
due to DPC, death of an employee, retirement, leaving a position.
The 50% rule made for the above purpose may have suitably
served in that period but in recent times when the vacancy is in
hundreds and its half will also be in hundreds will deprive
thousands of candidates from competing for a post advertised.
This Court is of the view that if there are more number of seats
then a new advertisement can be issued to protect the
fundamental rights of the candidates / applicants / incumbents /
aspirants. It was further discerned by the Court that the Rules
[2024:RJ-JD:37111] (29 of 43) [CW-10947/2024]
were made in 1966 and at that time the situations were different
regarding population and employment and limited number of
seats vacated at that time. Now the time has changed and in
2024 the scenario is altogether distinct from the year 1966, so
while considering the facts, the change in circumstances should
also be taken into consideration.
Otherwise also, the language used in this rule does not
make it mandatory upon the authority to include additional
requirement in the selection process rather a discretion has been
conferred upon the authority that he may include the additional
requirement also in the current selection process. Since there is
no compulsion upon the authority to add on more posts then
authority is expected to exercise the discretion justifiably looking
to number of posts and time elapsed between advertisement and
inclusion of additional seats.
14. A bare perusal of letter dated 04.03.2024 sent by the
Additional Director to Deputy Secretary of AAYUSH Department
revealing that total vacancy was of 989 seats for the post of
Nurse/Compounder Junior Grade and out of which 495 posts
were already advertised in the advertisement No. 1/2023 dated
03.10.2023 (Annexure 1). Other 125 posts of advertisement No.
1/2021 and 2/2021 were on hold by the order of the Court as the
matter is still sub-judice and the rest 369 posts were still vacant.
The letter reads further that as per Rule 16 of the Rules 1966,
the vacancies not exceeding 50% of the total seats can be
increased/enhanced however only 247 posts were enhanced. A
[2024:RJ-JD:37111] (30 of 43) [CW-10947/2024]
close scrutiny of the letter would reveal that the actual total
vacancy was of 369 posts and for that further vacancy was to be
advertised but a short cut method has been adopted by the
respondent department by taking resort of Rule 16 of the Rules
of 1966 by arbitrarily and unreasonably exercising the discretion
given under the Rule. Had it been the case that the total accrued
vacancy intimated after issuance of the advertisement was below
50% of already advertised post then there was no bar rather the
authority may be well within their power to add on all
subsequently intimated posts to the already advertised posts but
here the situation is different. Here in this case subsequent to the
advertisement No. 1/2023 dated 03.10.2023 (Annexure 1), the
department intimated for the accrued posts of 369 which was out
of the ambit/scope of Rule 16 of the Rules 1966 being more than
50%. The rule does not prescribe splitting/dividing the newly
accrued/subsequently intimated posts just to make a short cut so
that some of the posts can be added subsequently in the already
issued advertisement. If the situation would have arisen within a
month or two before the last date of filing of submission of
application forms, then the situation would have been different
but after almost 8 months when several like the petitioners have
entered under the eligibility criteria then exercise of the
discretion by authority would be like debarring/depriving them to
participate in the ongoing selection process. This Court is of the
firm view that Rule 16 of the Rules of 1966 enables the
authorities to add on all additional requirement if the same is
[2024:RJ-JD:37111] (31 of 43) [CW-10947/2024]
below 50% of the originally advertised posts. The rule does not
intend to give discretion to the authorities to split/divide the
entire vacancy into two parts as per their suiting by taking the
help of Rule 16 of the Rules of 1966. The interpretation of
statute/rules should be done from the words as it is existing in
the rule and should be read as it is written and any kind of
alteration/modification/addition by distortion cannot be allowed
to the authorities. If the rule framers had an intent to split the
subsequently accrued vacancies, then the same could have been
mentioned in the rule itself in clear terms. In absence of any
express and specific legal provision regarding splitting of
vacancies, the issuance of order dated 28.06.2024 (Annexure 4)
cannot be approved. Here if the total intimated vacancies were of
247 or less and have been advertised as an additional vacancy in
an advertisement then it would have been as per the spirit of the
Rule. The authorities cannot be permitted to divide the additional
requirement by undue exercise of discretion which is not
expressly provided in the Rules.
15. There are plethora of judgments which relates to the issue
of re-opening of the application forms or issuing a new
advertisement for the different kinds of posts as no citizens
should be deprived of their fundamental rights of opportunity in
getting desired job or at least be given a chance to compete for
the same. The petitioners placed reliance on nimiety of
judgments relating to the same issue and issue related to vested
right of candidates of select list. The perusal of the case laws as
[2024:RJ-JD:37111] (32 of 43) [CW-10947/2024]
provided by the petitioners clearly states that the recruitment
should not be discriminative in nature and no one should be
deprived of competing for a desired job as candidates who
become eligible for the succeeding year should be given a chance
to fill the forms and they should also be given a chance to
participate or compete in the examination. The application forms
date should not be kept of a back date as it will deny the
candidates who become eligible this year. It is further discussed
that there is no vested right of candidates who are in the select
list as the whole process has been conducted by the respondent
departments only for a particular number of seats and not for the
enhanced seats. State authorities can either start the process
afresh by including total vacancies accrued till now by giving
opportunity to fill forms by new aspirants also and in that event
the candidates who had already filled the forms can also be
included and can participate afresh. For the perusal, the relevant
parts of the judgments relied on by the petitioners is being
reproduced herein below:-
a) Rakhi Ray and Ors. Vs. The High Court of Delhi and Ors.
reported in AIR 2010 SC 932.
"9. It is a settled legal proposition that vacancies cannot
be filled up over and above the number of vacancies
advertised as "the recruitment of the candidates in excess
of the notified vacancies is a denial and deprivation of the
constitutional right under Article 14 read with Article 16(1)
of the Constitution", of those persons who acquired
eligibility for the post in question in accordance with the
statutory rules subsequent to the date of notification of
vacancies. Filling up the vacancies over the notified
vacancies is neither permissible nor desirable, for the
reason, that it amounts to "improper exercise of power and
[2024:RJ-JD:37111] (33 of 43) [CW-10947/2024]
only in a rare and exceptional circumstance and in
emergent situation, such a rule can be deviated and such a
deviation is permissible only after adopting policy decision
based on some rational", otherwise the exercise would be
arbitrary. Filling up of vacancies over the notified vacancies
amounts to filling up of future vacancies and thus, not
permissible in law.
(Vide Union of India and Ors. v. Ishwar Singh Khatri and
Ors. (1992) Supp 3 SCC 84; Gujarat State Deputy
Executive Engineers' Association v. State of Gujarat and
Ors. (1994) Supp 2 SCC 591; State of Bihar and Ors. v.
The Secretariat Assistant S.E. Union 1986 and Ors. AIR
1994 SC 736:(1994 SCW 573); Prem Singh and Ors. v.
Haryana State Electricity Board and Ors. (1996) 4 SCC
319; and Ashok Kumar and Ors. v. Chairman, Banking
Service Recruitment Board and Ors. AIR 1996 SC 976):
(1996 AIR SCW 420).
10. In Surinder Singh and Ors. v. State of Punjab and Ors.
AIR 1998 SC 18: (1997 AIR SCW 3961) this Court held as
under:
"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 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 appointment, 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.... Exercise of
such power has to be tested on the touch- stone of
reasonableness.... It is not a matter of course that the
authority can fill up more posts than advertised."
(Emphasis added)
[2024:RJ-JD:37111] (34 of 43) [CW-10947/2024]
11. Similar view has been re-iterated in Madan Lal v. State
of J & K and Ors. AIR 1995 SC 1088: (1995 AIR SCW
1109); Kamlesh Kumar Sharma v. Yogesh Kumar Gupta
and Ors. AIR 1998 SC 1021: (1998 AIR SCW 793); Sri
Kant Tripathi v. State of U.P. and Ors. (2001) 10 SCC 237:
(2001 AIR SCW 3468); State of J & K v. Sanjeev Kumar
and Ors. (2005) 4 SCC 148; State of U.P. v. Raj Kumar
Sharma and Ors. (2006) 3 SCC 330: (2006 AIR SCW
1985); and Ram Avtar Patwari and Ors. v. State of
Haryana and Ors. AIR 2007 SC 3242): (2007 AIR SCW
6130).
12. In State of Punjab v. Raghbir Chand Sharma and Ors.
AIR 2001 SC 2900:(2001 AIR SCW 4337), this Court
examined the case where only one post was advertised
and the candidate whose name appeared at Serial No. 1 in
the select list joined the post, but subsequently resigned.
The Court rejected the contention that post can be filled up
offering the appointment to the next candidate in the
select list observing as under:-
"With the appointment of the first candidate for the
only post in respect of which the consideration came to be
made and select list prepared, the panel ceased to exist
and has outlived its utility and at any rate, no one else in
the panel can legitimately contend that he should have
been offered appointment either in the vacancy arising on
account of the subsequent resignation of the person
appointed from the panel or any other vacancies arising
subsequently."
13. In Mukul Saikia and Ors. v. State of Assam and Ors.
AIR 2009 SC 747: (2008 AIR SCW 7971), this Court dealt
with a similar issue and held that "if the requisition and
advertisement was only for 27 posts, the State cannot
appoint more than the number of posts advertised". The
Select List "got exhausted when all the 27 posts were
filled". Thereafter, the candidates below the 27 appointed
candidates have no right to claim appointment to any
vacancy in regard to which selection was not held. The
"currency of Select List had expired as soon as the number
of posts advertised are filled up, therefore, the
appointments beyond the number of posts advertised
would amount to filling up future vacancies" and said
course is impermissible in law.
14. In view of above, the law can be summarised to the
effect that any appointment made beyond the number of
vacancies advertised is without jurisdiction, being violative
of Articles 14 and 16(1) of the Constitution of India, thus,
a nullity, in executable and unenforceable in law. In case
the vacancies notified stand filled up, process of selection
comes to an end. Waiting list etc. cannot be used as a
[2024:RJ-JD:37111] (35 of 43) [CW-10947/2024]
reservoir, to fill up the vacancy which comes into existence
after the issuance of notification/advertisement. The
unexhausted select list/waiting list becomes meaningless
and cannot be pressed in service anymore."
b) K. Lakshmi v. State of Kerala reported in (2012) 4 SCC 115.
"25. The legal position regarding the power of the
Government to fill up vacancies that are not notified is
settled by several decisions of this Court. Mr. Rao relied
upon some of those decisions to which we shall briefly
refer.
26. In Rakhi Ray v. High Court of Delhi this Court
declared that the vacancies could not be filled up over and
above the number of vacancies advertised as recruitment
of the candidates in excess of the notified vacancies would
amount to denial of equal opportunity to eligible
candidates being violative of Articles 14 and 16(1) of the
Constitution of India. This Court observed: (SCC p. 641
para 7)
It is settled law that vacancies cannot be filled up
over and above the number of vacancies advertised as
recruitment of the candidates in excess of the notified
vacancies is a denial being violative of Articles 14 and 16
(1) of the Constitution of India.
27. In Hoshiar Singh v. State of Haryana 1993 Supp 4 SCC
377, also this Court held that appointment to an additional
post would deprive candidates, who were not eligible for
appointment to the post on the last date for submission of
the applications mentioned in the advertisement and who
became eligible for appointment thereafter, of the
opportunity of being considered for such appointment. This
Court observed: (SCC p. 384, para 10)
"10.....The appointment on the additional posts
on the basis of such selection and
recommendation would deprive candidates who
were not eligible for appointment to the posts
on the last date for submission of applications
mentioned in the advertisement and who
became eligible for appointment thereafter, of
the opportunity of being considered for
appointment on the additional posts...."
c) High Court of Kerala vs. Reshma A. and Ors. reported in
(2021) 3 SCC 755.
[2024:RJ-JD:37111] (36 of 43) [CW-10947/2024]
"54. The fourth difficulty in accepting the line of approach
of the High Court rests on constitutional principles.
Undoubtedly, the validity of Rule 7(2) was not in question
before the High Court. Counsel for the Respondents argued
that it does not lie in the province of the Appellant to raise
a doubt about the validity of its own rules, more
particularly Rule 7(2). It is necessary to note that Mr. V.
Giri, learned Senior Counsel appearing on behalf of the
Appellant did not suggest or argue that Rule 7(2) should
be held to be invalid. The submission of learned Senior
Counsel is that the expression "probable" denotes an
addition/deduction which has to be made due to the
imponderables of service such as death, resignation and
promotion. The submission of the Appellant is that a literal
interpretation of Rule 7(2), without reference to the
constitutional requirement of not operating a select list
beyond the notified vacancies, would render the Rule
violative of Articles 14 and 16 and such an interpretation
should be avoided. In other words, his submission was that
a constitutional interdict cannot be overcome in the
manner it has been suggested by the Respondents and a
harmonious interpretation of the judicial service Rules in
the light of the directions in Malik Mazhar Sultan (3) should
have been resorted to by the High Court. We are in
agreement with this line of submissions, based as it is on
the precedent of this Court. It is a settled principle of
service jurisprudence that when vacancies are notified for
conducting a selection for appointments to public posts,
the number of appointments cannot exceed the vacancies
which are notified. The answer to this submission, which
has been proffered by the Respondents is that Under Rule
7(1) a probable number of vacancies is required to be
notified and since an exact number is not notified, there is
no constitutional bar in exceeding the 37 probable
vacancies that were notified in 2019. The difficulty in
accepting the submission is simply this: it attributes to the
expression "probable number of vacancies" a meaning
which is inconsistent with basic principles of service
jurisprudence, the requirement of observing the mandate
of equality of opportunity in public employment Under
Articles 14 and 16 and is contrary to the ordinary meaning
of the expression. Black's Law Dictionary [11th Edition
(Thomsan Reuters West, 2019)].
The definition of 'Probable' in the 4th edition, Revision 6
(1971) of the Black's Law Dictionary was: "Having the
appearance of truth; having the character of probability;
appearing to be founded in reason or experience...; having
more evidence for than against; supported by evidence
[2024:RJ-JD:37111] (37 of 43) [CW-10947/2024]
which inclines the mind to believe, but leaves some room
for doubt; Apparently true yet possibly false."] defines the
expression 'probable' as:
"Probable': likely to exist, be true, or happen"
'Probable number of vacancies', as we have seen, is based
on computing the existing vacancies and the vacancies
anticipated to occur during the year. It also accounts for
the possibility of inclusion of some of the candidates that
are in the wait-list. However, the expression 'probable'
cannot be interpreted as a vague assessment of vacancies
that isn't founded in reason and can be altered without a
statutorily prescribed cause. To allow the concept of
probable number of vacancies in Rule 7(1) to trench upon
future vacancies which will arise in a succeeding year
would lead to a serious constitutional infraction.
Candidates who become eligible for applying for
recruitment during a succeeding year of recruitment would
have a real constitutional grievance that vacancies which
have arisen during a subsequent year during which they
have become eligible have been allocated to an earlier
recruitment year. If the directions of the High Court are
followed, this would seriously affect the fairness of the
process which has been followed by glossing over the fact
that vacancies which have arisen during 2020 will be
allocated for candidates in the select list for the year 2019.
Such a course of action would constitute a serious
infraction of Articles 14 and 16 and must be avoided. To
reiterate, the submission of the Appellant which we are
inclined to accept is not that Rule 7(2) is invalid but that a
harmonious interpretation of Rules 7(1) and (2) must be
adopted that is consistent with the Article 142 directions in
Malik Mazhar Sultan (3) to bring the Rules in accord with
the governing principles of constitutional jurisprudence in
matters of public employment."
A perusal of the above cited judgments clearly shows that
the appointment on additional posts would deprive the
candidates who were not eligible at the time of last date of
submission of application forms but are eligible on the date of
enhancement of seats and also if this kind of process will be
followed and the previous year wait list candidates would be
[2024:RJ-JD:37111] (38 of 43) [CW-10947/2024]
given a chance in the succeeding year then the same would be in
violation of Article 14 and 16 of Constitution of India. The
interpretation of rules must be done as it is written with keeping
a fact in mind that what would have been the purpose of making
such type of Rule at the time when it was made and accordingly
it should be interpreted. The interpretation of law/statute/rules
should always be in coherence with the rights of citizens as
provided under Constitution of India. Here in this case, the date
for applying has not been changed for an add on seats and the
seats which accrued are huge in number. In guise of Rule 16 of
the Rules 1966 the additional posts accrued have been dissected/
divided/splitted in two fractions which is contrary to law and in
violation of the fundamental rights provided to the citizens of this
country. The adjudication should be done with congruity to
Constitution of India and keeping in mind the most crucial
Articles i.e. 14, 15, 16, 19 and 21 of Constitution of India as the
Courts cannot forgo the fundamental rights provided by these
articles.
16. As it has been discussed above, this Court is of the firm
view that Rule 16 of the Rules of 1966 does not authorise the
State authorities to split the total subsequently accrued vacancy
just to add on certain more vacancies in already advertised seats
rather a plain meaning of Rule 16 is to enable the authorities to
add on certain more numbers not exceeding 50% of the initially
advertised posts if the total number of subsequent vacancy is
below 50% of the already advertised posts. The plain
[2024:RJ-JD:37111] (39 of 43) [CW-10947/2024]
interpretation of Rule 16 of the Rules of 1966 should be taken as
the total subsequent vacancy should be below 50% of the
advertised posts.
17. Now when viewing the issue from another angle, it would
come to fore that even after adding on certain more numbers of
vacancy in the advertised posts; lots of vacancy is still existing
and for fulfilment of which, the respondent department would
have to initiate another process of recruitment. In simple words,
it can be said that even after adding on 247 seats in the existing
process, 122 number of seats are lying vacant and in near, the
respondent department would further be obligated to commence
a fresh process for that purpose. If it is so, then why the
authorities should not complete the process of advertisement No.
01/2023 dated 03.10.2023 (Annexure 1) for the vacancies
advertised only and why a fresh advertisement may not be
issued for the subsequently accrued whole/entire seats that is
around 369 seats. It is notable that the candidates have applied
for the advertised posts only, so there would be no question of
not doing justice for them however, contrary to this the
candidates who are now eligible to participate in the process are
being deprived from participating in the recruitment process for
247 seats which is being added now. It is done simply because
they were not able to fill up the forms 7 months ago. They
abstained from filling up the form before 05.11.2023 because of
the circumstances beyond their control.
[2024:RJ-JD:37111] (40 of 43) [CW-10947/2024]
18. Permitting the respondent department for adding on 247
seats in existing selection process would be against the concept
of equal opportunity guaranteed by the Constitution of India
which ensures all interested individuals having the same ability to
access chance of receiving particular resource such as
employment without discrimination based on irrelevant factors.
Article 16 of the Constitution of India guarantees equal
opportunities to all citizens in matters related to employment in
the public sector or any office under the State. This constitutional
provision serves as the bedrock for fair and non-discriminatory
practices in matters of public employment. All the citizens should
have been given equal chance of being employed or appointed to
a State office prohibiting discrimination based on any
unreasonable and improper factor. No rule of law would like to
see benefiting a class of citizen and closing the opportunity for
the others. Rules are made for its use for betterment of the
societal interest but, for sure, not made for being misused by the
authorities. Taking resort of a provision, the State authorities
can't be allowed to snatch reasonable opportunities from the
others for which they are otherwise eligible. I am of the firm
opinion that division of vacancy cannot be permitted to benefit
some and causing loss to the others. If the total subsequently
accrued vacancy i.e., 369 posts would have fallen within the
ambit of Rule 16 of the Rules 1966, then it would be a different
thing. In my considered opinion, Rule 16 has been framed for the
above purpose only and therefore it cannot be allowed to be
[2024:RJ-JD:37111] (41 of 43) [CW-10947/2024]
misused. Adding on half of the vacancy after almost 8 months of
the commencement of the process that too by dividing/splitting
the vacancy is not only beyond the purview of Rule 16 but also
the same is illegal and unreasonable. After anxious consideration
of the legal and factual aspect of the matter, this Court is of the
view that the reasonability and propriety would be to allow the
State authorities to complete the selection process for the
advertised vacancies only without adding on additional vacancy
and a new selection process should be commenced for whatever
vacancies has arisen till now so that every individual can be
given opportunities to contest. In the new process, all the
aspirants who are eligible till now shall be eligible to participate.
It won't be justifiable or reasonable to permit increase
opportunities to those candidates only who applied till
05.11.2023 by enhancement of more seats after almost 8
months and lessening the opportunity to the others who are
eligible at the time of adding on of the seats. If the opportunity is
not given for the vacancies which are being added now to the
candidates who are eligible from all aspects as on date; then, in
my considered view the same would be very unfortunate and
against the spirit of law and justice and would be in conflict with
the constitutional guarantee.
Thus, viewing from all aspects, this Court is of the view that
exercise of discretionary power by the authorities in ordering for
enhancement of 247 more seats for the post of
Compounder/Nurse Junior Grade in AAYUSH (Ayurveda,
[2024:RJ-JD:37111] (42 of 43) [CW-10947/2024]
Homeopathy, Unani) Department in the selection process is
improper, unjust and against the mandate of law and the same
does not come under the ambit of Rule 16 of the Rules of 1966
and therefore the impugned order dated 28.06.2024 (Annexure
4) regarding enhancement of the seats is liable to be quashed
and set aside. The petitions deserves to be allowed.
19. Accordingly, in view of the discussion made herein above,
the writ petitions are allowed in the following terms: -
A. The impugned order dated 28.06.2024 (Annexure 4)
enhancing the seats in the already advertised posts in
advertisement No. 01/2023 dated 03.10.2023
(Annexure 1) is hereby quashed and set aside with
immediate effect to the extent it relates to
enhancement of posts of Ayurveda Compounder/Nurse
Junior Grade wherein 247 posts were enhanced being
unjust & violative of the fundamental rights; against
propriety & legislative intent and the underlying
principles of law.
B. The respondent department is directed to complete
the process of advertisement No. 01/2023 dated
03.10.2023 (Annexure 1), advertised for the post of
Compounder/Nurse Junior Grade in AAYUSH
(Ayurveda, Homeopathy, Unani) Department
Government of Rajasthan, Jaipur, only for the
vacancies advertised vide 03.10.2023 (Annexure 1).
the process shall be completed expeditiously.
[2024:RJ-JD:37111] (43 of 43) [CW-10947/2024]
C. The respondent department shall make sincere
endeavour for issuance of fresh advertisement with an
immediate effect for the subsequently intimated
number of additional requirement that are around 369
seats [or more, if any accrued in the meantime] for
the post of Compounder/Nurse Junior Grade in
AAYUSH (Ayurveda, Homeopathy, Unani) Department
for enabling all the candidates / aspirants /
participants / incumbents to compete the public
employment examination process.
20. No order as to cost.
21. All the stay petitions and pending applications, if any, are
disposed of accordingly.
(FARJAND ALI), J
Mamta/-
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