BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) PETITIONER challenges that in the selection held in pursuance of advertisement published in Rajasthan Patrika dated 24. 06. 1998 for the post of Teacher Gr. III alongwith other posts, the petitioner being eligible for the post had applied for the post and she was selected and placed in the order of merit at Serial No. 1801 initially and later on it was altered to 1802 by order dated 17. 3. 1999 (Annex. 4 ). The complaint of the petitioner is that notwithstanding that she stood higher in order of merit, the persons below in order of merit have been given appointment but the petitioner has not been offered appointment in pursuance of very same selection. Referring to the case of Saroj, Urmila, Geeta and Geeta who were placed in the merit list at No. 1866, 1871, 1874, 1887 who are respondents No. 3 to 6 in this petition, it is contended that her fundamental rights under Article 14 & 16 have been violated. These facts are not in dispute. However, learned counsel for the respondent, State, has urged that the select list has expired on 31. 03. 1999 and therefore no relief can now be granted to the petitioner. I am unable to accede to this contention. It is undoubtedly true that mere inclusion of the name in select list in particular order of merit does not give a right to claim appointment on that basis. But it is equally well settled that if appointments are offered in pursuance of such selection such appointments are to be offered strictly in order of merit except for the reasons to be disclosed to deviate from the order of merit. When undisputedly the petitioner was overlooked in order of merit, the persons below her have been given appointment, she is entitled to seek a mandamus to be treated at par with those who have been given appointment, in the absence of any compelling reasons to deviate from such merit order. In State of Haryana vs. Subhash Chander Marwaha (1), the Supreme Court has laid down that the mere fact that the candidate's name appear in the list does not entitle him to be appointed and observed as under:- " The only restraint put on the power of the Government to make appointments of Subordinate Judges under Rule 10 is that the State Government shall not travel outside the list and that the Government shall not depart from the ranking given in the list. "
(3.) THE Court further said: " Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government has departed from the rule in this respect". In Shankarsan Dash vs. Union of India (2), reiterating that it cannot be said that if a number of vacancies are notified for appointment an adequate number of candidates are found fit, the successful candidate acquire an indefeasible right to be appointed which cannot be legitimately denied. The Court said: " If the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been constantly followed by this Court. " A Division Bench of this Court in Divya Prakash Pandya vs. State of Rajasthan & Ors (3), observed as under:- " It is true that mere inclusion of the name in the select list does not confer any right to the appointment, it is equally well settled that if such select list is operated, the appointments will ordinarily be offered in order of merit in which their names appear in the select list, no person outside such select list can be appointed during the life of such select list on the posts for which selections have been made. Any deviation from the select list in giving appointment would call for satisfactory explanation to the select list". ;