This order dismisses a writ petition challenging the filling of a Gram Sevak post through transfer rather than reserve list selection. The court held transfers are permissible under rules and distinguished resignation to join other posts from non-joining, finding no exhausted reserve list vacancies.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
S.B. Civil Writ Petition No.6693/2012
Shradhanand Kashyap
Versus State of Rajasthan and others
Date of Order :: 9.5.2012
HON'BLE MR. JUSTICE M.N. BHANDARI
Mr.Bharat Saini for petitioner.
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The petitioner applied for the post of Gram Sevak pursuant to the advertisement issued by the Zila Parishad, Jhunjhunu. He could find place in reserve list of OBC candidates. The grievance of the petitioner for filling vacant post by way of transfer in an illegal manner though on account of non-joining of the candidate, the post should be filled from and amongst the candidates in the reserve list. A reference of a candidate namely Nirmal Kumar Sharma has been given, who did not join the post in question, thus aforesaid post should have been filled from and amongst the candidates in the reserve list. Even two candidates from the OBC category were later on selected on the post of Teacher Grade-II, thus left the services causing vacancy on the post of Gram Sevak, thus those posts should have been filled from the reserve list.
I have considered the submissions made above and perused the record.
I find that as per Rule 260 of the Rules of 1996, post can be filled by way of transfer as it is one of the mode of recruitment provided therein. In
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the aforesaid background, if a candidate has been transferred, it cannot be said to be illegal because transfer of a candidate is otherwise permissible under the aforesaid Rules itself.
Other question is as to whether respondents should have used reserve list to fill the post which remained vacant on account of non-joining of the post by a candidate.
I find that name of Nirmal Kumar Sharma has been given to indicate that he failed to join post. Apart from Nirmal Kumar Sharma, it is not indicated that any other candidate did not join the post. It is necessary as petitioner is not in the reserve list of open category so as to occupy the post fall vacant on account of non-joining of post by Nirmal Kumar Sharma in open category. The petitioner is in the reserve list at S.No.2 of OBC category. The allegation in regard to the OBC quota is also that two candidates did not join the post later as they were selected on the post of Teacher Grade-II. If that is so, then it is not a case of non-joining of the post but leaving the post to join another. It is a settled law that once a selected candidate is given appointment and occupied the post then list is treated as exhausted. Subsequent resignation and joining other post cannot be treated as par with that of a case where candidate did not join the post after appointment.
In the aforesaid background, no post of OBC quota has been shown vacant on account of nonjoining of the post by the candidate as no material has been placed on record for that purpose, which
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otherwise submitted for Nirmal Kumar Sharma.
In the light of the discussion made above, I do not find any merit in this writ petition. The same is, accordingly, dismissed.
This disposes of stay application also.
(M.N. BHANDARI), J.
Sunil/PA
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A.
3 issues framed by the court
Whether filling a vacant government post via transfer violates recruitment rules preventing illegal displacement of reserve list candidates.
Whether reservation rules require filling vacancies arising from non-joining of candidates using the reserve list.
Whether resignation of an appointed candidate to join another post is equivalent to non-joining for reservation quota purposes.
Shradhanand Kashyap
State of Rajasthan
M.N. Bhandari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
