Writ petitions sought issuance of a second waiting list for Teacher Gr.III posts after the first reserve list was exhausted. The High Court held that no law permits a second reserve list, the first list complied with Rule 277A, and the petitioners had no subsisting right. Petitions dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 3874/2022
----Petitioners
----Respondents
Connected With
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S.B. Civil Writ Petition No. 16707/2021
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Tehsil Baswa, District Dausa, (Raj.)
----Petitioners
Versus
----Respondents
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Aged About 29 Years, Behind Of M M Court, Nurshing Colony, Tehsil Gangapur City, District Swaimadhopur (Raj.).
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----Respondents
| For Petitioner(s) | : Mr. |
Sushil Bishnoi |
|---|---|---|
| For Respondent(s) | : Mr. Mr. |
Pankaj Sharma, AAG assisted by Deepak Chandak |
HON'BLE MS. JUSTICE REKHA BORANA
Order
Reportable
30th January, 2023
S.B. CIVIL WRIT PETITIONS NOS.3874/2022, 16707/2021 & 17846/2021
The present writ petitions have been filed with a prayer for issuance of waiting list in accordance with Rule 277A of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as ‘the Rules of 1996’) and further with a prayer for issuing directions similar to those in S.B. Civil Writ Petition No.2094/2019 (Kuldeep Kumar Vs. State of Rajasthan & Ors. decided on 25.02.2021).
All the three writ petitions pertain to the advertisement dated 11.09.2017 in pursuance to which, the petitioners herein applied for the post of Teacher Gr.III Level 2 although qua different subjects. But the issue involved in the present petitions being common, they are decided vide this common judgment.
The facts of S.B. Civil Writ Petition No.16707/2021 are being taken into consideration for the purpose of adjudication :
Vide revised/amended advertisement dated 11.09.2017, applications for the post of Teacher Gr. III Level II were invited. The said advertisement was issued for total 927 posts. The select list was to be issued on the basis of the marks of graduation and REET Examination with the weightage of 30% and 70%
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respectively. On 30.01.2018, the first select list was issued and candidates therein were called for document verification. But after document verification, only 37 posts out of the advertised posts were filled up and rest of the posts remained vacant. In the circumstances, several writ petitions were preferred by various candidates with a prayer for publication and operation of the wait/ reserve list in pursuance to the proviso to Rule 277A of the Rules of 1996. One of these writ petitions being S.B. Civil Writ Petition No.17360/2018 (Urmila Devi & Others Vs. State of Rajasthan & Others) was disposed of vide order dated 07.01.2019 in terms of the judgment passed in Bhushan Kumar
Pandaya Vs. State of Rajasthan and Ors. (S.B. Civil Writ
Petition No.14505/2018) decided on 25.10.2018. Vide order dated 07.01.2019, the respondent-Department was directed to upload the reserve list in terms of the proviso to Clause (vi) of Rule 227A of the Rules of 1996 on its website within a period of four weeks. Further, the concerned Zila Parishads were directed to act in accordance with the provisions of the said proviso in respect of the remaining vacant seats, if any. The other similar writ petitions were also decided on the same terms and the special appeal being D.B. Special Appeal Writ No.924/2019 (Principal Secretary Education Department (Elementary) & Ors. Vs. Urmila Devi & Ors.) preferred by the State against the order dated 07.01.2019 was also dismissed vide order dated 07.01.2020. However, while disposing of the Special Appeal, it was directed by the Division Bench that the appellants would operate the wait list only to the extent of the posts vacant as on date.
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In pursuance to the directions as passed in Urmila Devi’s case (supra), the wait/reserve list was issued and published by the respondent-Department on 14.09.2021. In the said list, names of 874 candidates (equal to the total number of the vacant seats) found place. All 874 candidates who found place in wait/reserve list were called for document verification but however, 381 seats still remained vacant even after the wait/reserve list dated 14.09.2021 having operated. Therefore, the present writ petitions have been preferred for filling up of the said vacant posts with the following submissions :
Firstly , the alleged wait/reserve list dated 14.09.2021 issued by the Department cannot be termed as “Select List” in terms of Rule 277A of the Rules of 1996; secondly , list dated 14.09.2021 cannot be termed to be a wait/reserve list too. It was just a reshuffled result which was issued after taking into consideration the candidates who were found unsuitable after document verification; thirdly , the wait/reserve list could have been issued only qua the seats which remained vacant because of the candidates who did not join in pursuance to the first select list. Regarding other seats which remained vacant because of the candidates who were disqualified after document verification, a reshuffled result was a mandate and the wait/reserve list candidates could not have been adjusted against the said posts and fourthly , the procedure as adopted by the Department in issuing the list dated 14.09.2021 was not in consonance with the provisions of law as the Department ought to have first got the documents of the suitable candidates verified and finalise the select list of qualified candidates. Thereafter, the wait/reserve list
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ought to have been issued. The respondent-Department has acted vice versa and has illegally, first issued the so called select list and then verified the documents. Because of such reverse procedure, those candidates who were found not fit to be selected after document verification, were considered in the select list whereas they could not be termed to have been selected. It was only after the ousting of the said candidates from the final select list that the subsequent wait/reserve list could have been issued.
Mr.Sushil Bishnoi, counsel for the petitioners submitted that the fact that the Department adopted the wrong and reverse procedure is even evident from the documents placed on record. One of them being the advertisement of the year 2021 which although was withdrawn subsequently, provided for the procedure of issuance of the final select list after the process of documents verification being completed.
The other documents which further substantiate the fact are the advertisements issued for the recruitment of the Special Education Teachers as well as in the case of Sports Persons wherein it has been directed by the State Government itself that the select list should be operated till the last and no seat should remain vacant.
Per contra, learned Additional Advocate General Mr.Pankaj Sharma appearing for the respondent State submitted that the present writ petitions are totally misconceived in so far as, vide the present petitions, the procedure for selection notified vide advertisement of the year 2016 (revised/amended in 2017) has been sought to be challenged in the year 2021. Learned counsel submitted that the procedure for the present recruitment was very
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well notified by the advertisement and the petitioners participated in the recruitment process in terms of the said advertisement only. Having participated in the said process, the petitioners are now estopped from challenging the procedure itself and that too, when the recruitment process itself has been completed so far as the Department is concerned.
Further, office order dated 30.08.2017 specifically provided for the procedure for conducting/completing the recruitment in question and vide said order, it was specifically clarified that district wise merit list would be prepared on basis of the preference given by the candidates and the same would be sent to the concerned Zila Parishads. The concerned Zila Parishad would then, after verification of the documents and suitability of the candidate, proceed to offer appointment to the candidate on the basis of his merit.
After the recruitment process of 2016, the recruitment of 2018 has also been taken up and has even been completed and the fresh recruitment process by the State is under contemplation. Even the fresh advertisement for the vacant seats was issued on 31.12.2021, however, the same was subsequently withdrawn on 10.02.2022. But it is clear that the remaining vacancies have been carried forward and the process of 2016 has come to an end for all purposes.
Learned AAG relied upon Clause 12 of the advertisement which specifically provided for the procedure to be adopted for the recruitment wherein the above mentioned procedure was laid out. Learned AAG further pointed out to the declaration given by the candidates to the effect that they are well aware of the fact that
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the documents having not been verified before the present selection, he/she would be required to present the same at the time of appointment. Meaning thereby, at the inception itself, it was clear that the procedure to be adopted was first to issue the select list on the basis of online information provided by the candidates and then to verify the documents before affording appointment. Therefore, the Department was right in adopting the procedure in terms of conditions of the advertisement and the candidates having participated in the said process cannot now turn up and challenge the whole procedure itself.
It has further been submitted that the wait/reserve list in pursuance to the orders passed by this Court was very well issued by the Department on 14.09.2021 and the same was even operated. It is not the case of the petitioners that the reserve list dated 14.09.2021 was not acted upon or was not operated. Even otherwise, a reserve list loses its sanctity after a period of six months in terms of Rule 277A of the Rules of 1996.
Counsel further submitted that Rule 277A does not speak of any wait list. The provision only provides for a reserve list and that too, to the extent of 50% of finally intimated vacancies. In the present matter, the wait/reserve list has already been issued to the extent of total number of remaining vacant seats which is clearly more than 50% of the finally intimated vacancies. Therefore, no further reserve list can be issued in terms of Rule 277A also as the compliance of Rule 277A has been made by the respondent-Department in its letter and spirit. The prayer in the present petitions ultimately is for issuance of a second wait/reserve list which cannot be said to be permissible under any
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provision of law. No law provides for issuance of the second wait/reserve list.
It has further been submitted that the right whatsoever, has accrued to the present petitioners only on the basis of the earlier judgment passed in the case of Urmila Devi . In the said judgment too, there was no direction regarding the procedure to be adopted for issuance of wait/reserve list. Moreover, the procedure as adopted, for issuance of the select list, was not under challenge in the said petition too.
The recruitment process of the year 2016, after the operation of the wait/reserve list dated 14.09.2021 has now come to an end and the State Department cannot be directed to go on issuing the wait/reserve list and operating the same in perpetuity.
It is the settled proposition of law that the candidates who find place in the wait list also, cannot, as a matter of right, claim to be appointed and here are the candidates who did not even find place in the wait list. Therefore, by no stretch of imagination, these candidates can pray first for issuance of the second wait list and then ask for appointment on the basis of the said wait list which is even not in existence as on date.
With the said submissions, learned Additional Advocate General prayed for dismissal of the present writ petitions. In support of his submissions, learned counsel relied upon the decisions rendered in the matters of State of Rajasthan & Ors. Vs. Jagdish Chopra ; (2007) 8 SCC 161, State of Jammu and Kashmir and others Vs. Satpal; (2013) 11 SCC 737, Sarita Chaudhary Vs. State of Rajasthan & Ors.; 2016(2) WLC
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(Raj.) 288, Harish Nagpal Vs. State & Ors.; 2016 WLC (Raj.) UC 251 and Sangeeta Vs. State of Rajasthan; (2014) 3 LLJ 230.
In rejoinder, learned counsel appearing for the petitioners submitted that the fresh recruitment process of the year 2021 has admittedly been withdrawn subsequently and therefore, the seats would be termed to be vacant as on date. Further, the fact of recruitment process of the year 2018 having been commenced was already considered in the earlier judgment of Urmila Devi and therefore, the same would now have no impact whatsoever. Learned counsel further submitted that appointments in pursuance to the recruitment process of the year 2016 are still being granted by the respondent-Department and therefore, the arguments advanced on behalf of the State that the process has been completed for all purposes, falls flat. In support of his submissions, learned counsel relied upon certain office orders pertaining to the months of February, March and April, 2022 whereby appointments have been afforded to the candidates selected qua the recruitment process of 2016. In support, learned counsel relied upon a Full Bench decision of Hon’ble Apex Court in the matter of Dinesh Kumar Kashyap and Others Vs. South East Central Railway and Others; (2019) 12 SCC 798.
Heard learned counsel for the parties and perused the material available on record.
From a bare perusal of the facts narrated above, it is clear that the right whatsoever, to the present petitioners, to claim any relief arose as a consequence of the order passed in the matter of Urmila Devi (supra) and other identical matters. For the
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complete understanding of issue in question and adjudication thereupon, reproduction of complete order dated 07.01.2019 passed in Urmila Devi’s case is essential and is therefore reproduced as under :
“Learned counsel for the petitioners confines the prayer made in the writ petition to declaring the waiting list against the vacancies available due to nonjoining of the selected candidates. It is submitted by learned counsel for the petitioners that the issue raised in the present writ petition is squarely covered by judgment in Bhushan Kumar Pandya v. State of Rajasthan & Ors.: S.B. Civil Writ Petition No.14505/2018, decided on 25.10.2018.
It is submitted that pursuant to the revised advertisement dated 11.9.2017, select lists were issued and appointments were made, however, several of the selected candidates have not joined, however, the respondents did not comply with the provisions of Rule 227A of the Rajasthan Rajasthan Panchayati Raj Rules, 1994 (‘the Rules of 1994’) requiring issuance of the waiting list and accord appointments from the said waiting list.
Learned counsel for the respondents made submissions that the petitioners have simply filed the petition based on the assumptions that several of the candidates who have selected, have not joined and that there are vacancies available pursuant to the posts advertised by the advertisement dated 11.9.2017.
I have considered the submissions made by learned counsel for the parties and have peruse the material available on record.
This Court in the case of Bhushan Kumar Pandya (supra) after considering the provisions of Rule 227A of the Rules of 1994 inter alia came to the following conclusion and directed as under:-
“A perusal of proviso to Clause (vi) of Rule 277A of the Rules would reveal that the Authorized Agency may to the extent of 50% of the finally intimated vacancies, keep names of suitable candidates on the reserve list. Further the Authorized Agency may on requisition recommend the name of such candidate in the order of merit to the Zila Parishad concerned within six
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months from the date on which original list was forwarded by the Authorized Agency.
The said clause read with the stipulation made in the advertisement clearly indicates that it is only at the level of Zila Parishad where the documents, eligibility etc. of the candidates selected and allotted by the Authorized Agency are examined and if after grant of appointments to the eligible selected candidates vacancies remain at the Zila Parishad level, the Zila Parishad has to seek further names from the reserve list from the Authorized Agency and on being asked for such names, the Authorized Agency has to send the names to the concerned Zila Parishad and the said exercise has to be completed within six months from the date on which the original list was forwarded by the Authorized Agency.
As already noticed, when 1492 posts were advertised and the select list only contain names of 1379 candidates as filed by the petitioners, obviously the vacancies do exist and therefore, the candidates like petitioners, who have not been selected, have a legitimate expectation i.e. if their names appear in the reserve list, they may get chance of appointment.
The submission made by learned counsel for the respondents that the provision being directory and providing only for the Authorized Agency to ‘keep’ the names of suitable candidates on the reserve list, does not require the respondents to publish the said list cannot be countenanced. Once the provision provides for keeping the suitable candidates on the reserve list, the same must be published by the respondents so as to keep the concerned candidates aware of their status in the reserve list. Further once the provisions are there for the concerned Zila Parishad to seek names of the suitable candidates from the Authorized Agency within a period of six months for the vacant posts, normally the said aspect also must be followed so as to make the recruitment complete and in normal circumstances they must not let the list to expire. In view of the above fact situation, wherein the scrutiny of the eligibility etc. of the candidates is to be
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made at the level of concerned Zila Parishads, there are already vacant positions available, inasmuch as, the Authorized Agency has not recommended full names against the vacancies advertised, it would be in fitness of things, the reserve list which is required to be prepared by the Authorized Agency in terms of proviso to Clause (vi) of Rule 277A of the Rules must be published and operated in terms of the Rules and requirements.
Consequently, the writ petition filed by the petitioners is partly allowed. The respondent-Authorized Agency i.e. respondent No.3 is directed to upload the reserve list in terms of proviso to Clause (vi) of Rule 277A of the Rules on its website within a period of four weeks from today. Further the concerned Zila Parishads are also directed to act in accordance with the provisions of the said proviso in respect of the vacancies and the reserve list.”
In view of the interpretation put by this Court to the provisions of Rule 227A of the Rules of 1994, in case, the vacancies pursuant to the advertisement dated 11.9.2017 are available, the provisions of the said Rule would operate and it would be required of the respondents to do the needful as directed in the case of Bhushan Kumar Pandya (supra).
Consequently, the writ petition filed by the petitioners is disposed of. The authorized agency i.e. respondent No.3 is directed to upload the reserve list in terms of proviso to Clause (vi) of Rule 227A of the Rules of 1994 on its website within a period of four weeks from today. Further the concerned Zila Parishads are directed to act in accordance with the provisions of the said proviso in respect of the vacancies, if any qua the posts advertised and the reserve list.”
The order dated 07.01.2019 was assailed by the State by way of D.B. Special Appeal Writ No.924/2019 and vide order dated 07.01.2020, the Division Bench dismissed the special appeal with the following observation :
“In light of the aforesaid factual matrix, the impugned order does not call for any interference and
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the appeal stands dismissed accordingly. However, the appellants are directed to operate the wait list only to the extent of the posts vacant as on date, in pursuance of advertisement dated 6.7.2016 as revised vide advertisement dated 11.9.2017. All pending applications also stand dismissed.”
A bare perusal of the order dated 07.01.2019 affirmed by the Division Bench clarifies that firstly the respondent-Department was to upload the reserve list in terms of proviso to Clause (vi) of Rule 277A of the Rules of 1996 and secondly the concerned Zila Parishad was to act in accordance with the provisions of the said proviso. Sub-clause (vi) of Rule 277A of the Rules of 1996 and the proviso to the said clause read as under :
“(vi) the Authorized Agency shall prepare category wise select list of the candidates declared successful on the basis of criteria of selection laid down by the State Government from time to time:
Provided that the Authorized Agency may, to the extent of fifty percent of the finally intimated vacancies, keep names of suitable candidates on the reserve list. The Authorized Agency may on requisition recommend the name of such candidate in the order of merit to the Zila Parishad concerned, within six month from the date on which original list was forwarded by the Authorized Agency.”
The above mentioned sub clause(vi) provides for a select list on the basis of criteria of selection laid down by the State. Admittedly, qua the recruitment in question, the criteria as well as the procedure of selection was laid down in the advertisement dated 11.09.2017 itself. Clause 10 of the advertisement provided as under :
“10- HkrhZ izfØ;k %&
1- mPp izkFkfed fo|ky; v/;kid HkrhZ gsrq ojh;rk lwph (Merit List) esa “kkfey gksus ds fy, vH;FkhZ dks jktLFkku v/;kid ik=rk
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ijh{kk (RTET/REET) esa U;wure 60 izfr”kr mÙkh.kkZad (Minimum Passing Marks) vftZr djuk vfuok;Z gksxkA ijUrq jkT; ljdkj ds vf/klwpuk Øekad F.7(I)EE/PLAN/2011 fnukad 29-08-2012 ds vuqlkj vf/klwfpr {ks=ksa (Scheduled area’s) ds vuqlwfpr tutkfr ds vH;fFkZ;ksa ds fy;s U;wure 36 izfr”kr mÙkh.kkZad (Minimum Passing Marks) vfuok;Z gksxkA vf/klwpuk tkjh gksus ls iwoZ vk;ksftr gqbZ vkjVsV 2011 ds lEcU/k esa mUgsa ;g NwV ns; ugha gksxhA
2- jktLFkku v/;kid ik=rk ijh{kk (RTET/REET) (RTET 2011, RTET 2012 o REET 2015) esa ls vf/kdre izkIrkad izfr”kr dk 70 izfr”kr ,oa Lukrd ijh{kk esa dqy izkIrkad izfr”kr dk 30 izfr”kr fy;k tkdj dqy 100 izfr”kr esa ls jkT; Lrjh; eSfjV cukbZ tk;sxhA
3- vH;FkhZ;ksa }kjk nh xbZ ftys dh izkFkfedrk ds vk/kkj ij ftyk vkaoVu dj ftysokj lwph fu;qfDr gsrq lacaf/kr ftyk ifj’knksa dks Hksth tk;sxhA ftyk ifj’knksa }kjk vH;fFkZ;ksa dh ik=rk ,oa nLrkostksa dh tkap djus ds i”pkr eSfjV ds vk/kkj ij fu;ekuqlkj fu;qfDr dh dk;Zokgh dh tk;sxhA”
Further clause 12(5) of the advertisement provided as
under :
“5vkosndksa }kjk vkWuykbu vkosnu ij miyC/k djkbZ xbZ lwpuk ds vk/kkj ij gh ojh;rk lwph cuk;h tkosxhA muds }kjk izLrqr nLrkostksa dh oS/krk dh tkap ugha dh xbZ gS] vr% bl laca/k esa ik=rk laca/kh leLr mRrjnkf;Ro Lo;a vkosnd dk gksxkA ik=rk laca/kh nLrkostksa dh tkap ds le; ik= ugha ik;s@vH;FkhZ ds vuqifLFkr gksus ij og vH;FkhZ vik= ekuk tk;sxkA”
Further, vide office order dated 30.08.2017, specific guidelines in pursuance to the order passed by this Court in D.B. Special Appeal Writ No.1464/2016 on 27.04.2017 were issued wherein it was specifically provided as under :
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“5vH;fFkZ;ksa }kjk nh xbZ ftys dh izkFkfedrk ds vk/kkj ij izkf/kd`r vfHkdj.k }kjk ftysokj lwph rS;kj dj fu;qfDr gsrq lacaf/kr ftyk ifj’knksa dks fHktokbZ tkosaA ftyk ifj’knksa }kjk vH;fFkZ;ksa dh ik=rk ,oa nLrkostksa dh tkWp djus ds i”pkr esfjV ds vk/kkj ij fu;ekuqlkj fu;qfDr dh dk;Zokgh dh tk;sxhA”
A cumulative reading of all the above mentioned conditions
of the advertisement as well as the guidelines makes it clear that right from inception, the procedure to be adopted for the recruitment in question was firstly, to prepare select list on the basis of merit prepared in terms of online information provided by the candidates and secondly, to prepare the district wise list of such selected candidates on the basis of their preference and allot the preferred district to the candidates and forward the said district wise list to the concerned Zila Parishad and thirdly and finally, the Zila Parishad would verify the documents and suitability of the candidates and then afford appointment on the basis of merit. Therefore, the process as adopted by the State is evidently, in consonance with the criteria and process laid down vide the advertisement. The same cannot be held to be invalid or contrary to the provisions of Rule 277A(vi) of the Rules of 1996. The challenge to the procedure by the petitioners herein cannot therefore be upheld and the ground raised regarding the procedure as raised by the petitioners does not warrant any interference. Moresoalso, in the circumstances when the said procedure was never challenged by the petitioners during the complete recruitment process right from the year 2016 to year 2021. The said ground was evidently not raised in the earlier writ petition too and therefore also, this Court is not inclined to entertain the present petition on the said ground.
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The second ground raised by learned counsel for the petitioners regarding the list dated 14.09.2021 not to be the reserve/wait list in consonance with the proviso to Rule 277A of the Rules of 1996 cannot also held to be tenable on the sole ground that the proviso to Rule 277A provides for a reserve list only to the extent of 50% of the finally intimated vacancies. Admittedly, in the present case, the reserve list equal to the total number of vacant seats has already been issued and even has been operated upon. The said list was issued in pursuance to the directions of this Court in the case of Urmila Devi and the directions as issued in Urmila Devi makes it clear that the same were for a reserve list to be issued in consonance with Rule 277A of the Rules of 1996 and nothing more.
As observed above, the Rule provides for a wait/reserve list equal to 50% of the vacancies only and the said limit having already been complied with by the Department, it cannot be further directed to keep on issuing the reserve list till all the vacancies as advertised are not filled up.
It is the settled proposition of law that in exercise of power of judicial review, the courts cannot substitute the decision of the Department and direct the candidates in the waiting list to be appointed. It is also the settled proposition of law that the select list cannot be treated to be a reservoir for the purpose of appointments, so that vacancy can be filled up taking the names from that list as and when it is so required. It is also the settled proposition of law that any person does not acquire the legal right to be appointed only because his name appears in the select list.
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So far as the law relating to issuance of waiting list, the validity of waiting list, the period till when the waiting list would survive and would remain in operation, the rights of the candidates who find place in the waiting list to be appointed etc. is concerned, the same is no more res integra. The law on all the above mentioned issues is well settled. In the latest Division Bench judgment of this Court in a batch of special appeals lead case being State of Rajasthan & Others Vs. Dr Shri Krishan Joshi & Another; D.B. Civil Special Appeal (Writ) No.81/2020 (decided on 13.12.2022), after an elaborate analysis/discussion of almost all earlier judgments of this Court as well as of the Hon'ble Apex Court on the issues pertaining to waiting list, the Court held as under :
"In this background, the petitioners’ claim of having an indefeasible right of appointment was turned down by the Hon’ble Supreme Court applying well settled principles that mere inclusion in the waiting list does not confer any right and that a waiting list prepared in an examination conducted by the Commission does not furnish a perennial source of recruitment and further that it is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency, the Government may, as a matter of policy decision, pick up persons in order of merit from the waiting list. A broad legal proposition that the waiting list in one examination would not operate as an infinite stock for appointments in future was propounded as a settled legal position that vacancies cannot be filled up over and above the number of vacancies advertised."
The law relating to the operation of waiting list has also been propounded by the Hon'ble Apex Court in the case of Gujarat State Dy. Executive Engineers’ Association Versus State of
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Gujarat and Others, 1994 Supp (2) Supreme Court Cases
591 . The Hon'ble Apex Court in the said judgment held as under :
"9.A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list, in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.”
What can be summed up from the above precedents is that the waiting list can be operated 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
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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 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.
(24 of 26)
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Again on the issue of right of the party to seek mandamus, depending upon the peculiar facts of that case that on the day when the petition was filed, there was no subsisting right on account of expiry of the select penal, relief was denied."
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
(25 of 26)
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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 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.
(26 of 26)
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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.
S.B. CIVIL WRIT PETITION NO.3139/2022
The issue in the present writ petition being totally akin to the above three writ petitions, has been heard together and is being decided by this common judgment. The only difference is that the dispute in this petition pertains to the advertisement dated 12.04.2018 for recruitment of Teacher Gr.III Level I (General Education). In the present matter too, the vacant seats could not be filled up after the select list being issued and operated and therefore, several writ petitions were preferred, wherein directions were issued for declaration of wait/reserve list. In pursuance to the directions of the Court, the wait/reserve list dated 19.12.2020 was issued qua 894 seats which remained vacant. The said wait list was operated and was exhausted. Even after the said process, 826 seats still remained vacant and therefore, the present writ petition has been preferred for the same reliefs as made in the above three writ petitions.
In light of the observations made in S.B. Civil Writ Petition No.3874/2022, the present writ petition is also dismissed.
The stay petition also stands dismissed.
(REKHA BORANA),J
9-12Vij/-
2 issues framed by the court
Whether the petitioners, who were not included in the first reserve list, have any subsisting right to seek issuance of a second reserve/waiting list for the post of Teacher Gr.III Level 2 under Rule
Whether the procedure adopted by the State in first issuing a select list and then verifying documents was contrary to the advertisement and Rule 277A?
Colour shows how this judgement treated each authority
Kuldeep Kumar Vs. State of Rajasthan & Ors.Referred¶107
S.B. Civil Writ Petition No.2094/2019 (Kuldeep Kumar Vs. State of Rajasthan & Ors. decided on 25.02.2021)
Urmila Devi & Others Vs. State of Rajasthan & OthersReferred¶114
S.B. Civil Writ Petition No.17360/2018 (Urmila Devi & Others Vs. State of Rajasthan & Others)
Bhushan Kumar Pandaya Vs. State of Rajasthan and Ors.Referred¶114
Bhushan Kumar Pandaya Vs. State of Rajasthan and Ors. (S.B. Civil Writ Petition No.14505/2018) decided on 25.10.2018
Principal Secretary Education Department (Elementary) & Ors. Vs. Urmila Devi & Ors.Referred¶116
D.B. Special Appeal Writ No.924/2019 (Principal Secretary Education Department (Elementary) & Ors. Vs. Urmila Devi & Ors.)
State of Rajasthan & Ors. Vs. Jagdish ChopraReferred¶149
State of Rajasthan & Ors. Vs. Jagdish Chopra ; (2007) 8 SCC 161 · Who else cites this
State of Jammu and Kashmir and others Vs. SatpalReferred¶149
State of Jammu and Kashmir and others Vs. Satpal; (2013) 11 SCC 737 · Who else cites this
Sarita Chaudhary Vs. State of Rajasthan & Ors.Referred¶149
Sarita Chaudhary Vs. State of Rajasthan & Ors.; 2016(2) WLC (Raj.) 288
Harish Nagpal Vs. State & Ors.Referred¶153
Harish Nagpal Vs. State & Ors.; 2016 WLC (Raj.) UC 251
Sangeeta Vs. State of RajasthanReferred¶153
Sangeeta Vs. State of Rajasthan; (2014) 3 LLJ 230
Dinesh Kumar Kashyap and Others Vs. South East Central Railway and OthersReferred¶154
Dinesh Kumar Kashyap and Others Vs. South East Central Railway and Others; (2019) 12 SCC 798 · Who else cites this
State of Rajasthan & Others Vs. Dr Shri Krishan Joshi & AnotherApplied¶218
State of Rajasthan & Others Vs. Dr Shri Krishan Joshi & Another; D.B. Civil Special Appeal (Writ) No.81/2020 (decided on 13.12.2022)
Gujarat State Dy. Executive Engineers’ Association Versus State of Gujarat and OthersApplied¶220
Gujarat State Dy. Executive Engineers’ Association Versus State of Gujarat and Others, 1994 Supp (2) Supreme Court Cases 591
State of UP & Others Versus Harish Chandra & OthersApplied¶234
State of UP & Others Versus Harish Chandra & Others, (1996) 9 Supreme Court Cases 309
1 provisions across 1 enactments
Santosh Kumar Nyol & Ors.
State Of Rajasthan & Ors.
Sushila Kanwr Rathor & Ors.
Alka Kumari Sharma & Ors.
Amit Singh Rajput & Ors.
Rekha Borana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
