CALLA, J. - (1.) THIS Letters Patent Appeal under Sec. 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment and order dated 19. 4. 2001 passed by the learned Single Judge. By this common judgment and order dated 19. 4. 2001, five writ petitions were decided. Out of five writ petitions, one writ petition i. e. SB Civil Writ Petition No. 2987/2000 was allowed and rest of the four writ petitions No. 3125/2000, 3126/2000, 3653/2000 and 3654/2000 were dismissed. There four petitioners, aggrieved against the judgment and order dated 19. 4. 2001, passed by the learned Single Judge, have filed appeals under Sec. 18 of the Rajasthan High Court Ordinance, 1949.
(2.) BRIEFLY stated the facts of the case are that vide advertisement issued in the year 1996-97 on 5. 8. 1996, the Rajasthan Public Service Commission invited applications for filling up 10 posts of Assistant Agriculture Research Officers (Botany) in the pay scale of Rs. 2000-3200. The Rajasthan Public Service Commission after holding recruitment, recommended ten names for appointment to the aforesaid posts and ten persons who were recommended by the Rajasthan Public Service Commission were appointed on the said pasts and all of the had joined also. Besides this list of ten persons, the Rajasthan Public Service Commission had also prepared a reserve list of six persons and the names of all these four appellants did find place in reserve list including two others; one of them being Mr. Ashok Kumar Bansal who was at Sl. No. 1 and Shiv Prakash maheshwari who was at Sl. No. 2. On receipt of the recommendations of the aforesaid ten names, the Government of Rajasthan gave appointments to all the ten persons as per the merit list. However certain representations were made to the government than certain vacancies were still lying vacant. The State of Rajasthan, Department of Agriculture, however, vide its letter dated 3. 10. 1997, addressed to the Rajasthan Public Service Commission, intimating that two vacancies were still lying vacant which were to be filed up and, therefore, request was made to send two names as per the merit. Thereupon, Rajasthan Public Service Commission vide its letter dated 21. 10. 1997 sent all the six names as per the merit with the request that two of the said persons as per the merit of the reserve list and on the roster point can be filled up. Mr. Ashok Kumar Bansal and Mr. Shyam Sunder Meena who were at Sl. No. 1 and 5 respectively in there serve list were appointed and it may be mentioned that appointment of Mr. Shyam Sunder Meena was from the category of Scheduled Tribe in the reserve list but Mr. Shyam Sunder Meena declined to join and therefore, his appointment was cancelled on 6. 4. 1998. Therefore, the remaining four persons who were selected as per the reserve list, whose names were sent on 21. 10. 1997 were appointed on 22. 7. 1998. While all these candidates whose names were included in the reserve list and who had been appointed on that basis were continuing in service as Assistant Agriculture Research Officers (Botany) on the basis of the order dated 27. 7. 1998, an order was passed on 30. 6. 2000, whereby, the appointment of five candidates mentioned therein including the present four appellants were put to notice that they had been given temporary appointments on the basis of the reserve list sent by the Rajasthan Public Service Commission but the Government of Rajasthan on reconsideration had found that according to the decision of the Supreme Court in case of Ashok Kumar & Ors. vs. Chairman, Banking Service Recruitment Board & Ors. (1), in case of Prem Singh & Ors. vs. Electricity Board of State of Haryana & Ors. (2), in case of Madanlal vs. State of Jammu & Kashmir & Ors. (3) and in case of State of Bihar & Anr. vs. Madan Mohan Singh & Ors. (4), the future vacancies could not be filled up on the basis of the reserve list and their appointments had been made without the concurrence of Rajasthan Public Service Commission and it was in breach of the fundamental rights of other eligible candidates who could have competed against the further vacancies-had the vacancies been notified and therefore their appointments were contrary to the Article 19 (1) (g) of the Constitution of India and were unconstitutional and liable to be set aside. In this very notice, it was mentioned that therefore, according to the directions issued by the State Government on 3. 6. 2000, the services of the appellants are discharged in terms of Rule 23a (1) of Rajasthan Service Rules with the expiry of period of one months from the date of notice and from such date, the services will be deemed to have been terminated. Aggrieved from this order dated 30. 6. 2000, the writ petitions were filed and the same had been rejected by the learned Single Judge. It is this order passed by the learned Single Judge read with the basic impugned order passed by the Director of Agriculture, (which was made the subject matter of challenge before the learned Single Judge) is under challenge before us in these appeals. The learned Single Judge has rejected the four petitions out of five petitions and this is how these four appeals are before us. One of the five petitions i. e. the petition of Shri Ashok Kumar Bansal i. e. SB Civil Writ Petition No. 2987/2000 was allowed because he was at Sl. No. 1 in the reserve list and two names had been called for by the Government. It may be mentioned that as a art of the pleadings, a reply dated 31. 7. 2000 had been filed seeking to traverse the claim of the petitioners. Reply dated 18. 9. 2001 was also filed in the Special Appeal. An application dated 28. 9. 2001 with documents dated 3. 10. 1997 and 13. 4. 1998 has also been filed by the respondents in these appeals. Whereas all these appeals are directed against the common judgment and order and involve same question based on identical facts-we proceed to decide all these four appeals by this common judgments and order as under:- We have examined the challenge thrown by the appellant's counsel with reference to the Rajasthan Agriculture Subordinate service Rules, 1978 (hereinafter referred as the Rules of 1978 ). The scheme of the Rules provides the determination of vacancies under Rule 10 and procedure for direct recruitment has been given in Part-IV of these Rules in Rule 17 and onwards. Rules 17 and 21 which are relevant to decide the controversy of the case are reproduced as under:- "17. Inviting of Applications:- Applications for direct recruitment to posts in the Service shall be invited by the Commission or the Appointing Authority, as the case may be, by advertising the vacancies to be filled in, in the official Gazette or in such other manner, as may be deemed, fit" Provided that while selecting candidates for the vacancies so advertised, the Commission the Appointing Authority, as the case may be, 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. "21. Recommendation of the Commission or the Appointing Authority :- The Commission or the Appointing Authority, as the case may be, shall prepare a list of the candidates whom they consider suitable for appointment to the posts concerned, arranged in the order of merit. The Commission shall forward the list to the Appointing Authority" Provided that the Commission or the Appointing Authority, as the case may be, may to the extent of 50% of the advertised vacancies, keep names of suitable candidates on the reserve list. The Commission may, on requisition, recommend the names of such candidates in the order or merit to the Appointing Authority within six months from the date on which the original list is forwarded by the Commission to the Appointing Authority.
(3.) ACCORDING to the Proviso under Rule 17 of the Rules of 1978, the Commission may if intimation of additional requirement not exceeding 50% of the advertised vacancies, is received before selection, it may select suitable candidates to meet such additional requirement. It may be mentioned that in this Proviso the words "before selection" have been used and therefore, to the extent of 50% of the advertised vacancies, the suitable candidates may be selected to meet such additional requirement, if received before selections. In the instant case whereas ten vacancies had been advertised, therefore on intimation of the additional requirement, the candidates upto 5 could be selected, had the additional requirement been received before selection. According to the Rule 21 of the Rules of 1978, the Commission has to prepare a list of the candidates whom it considers suitable for appointment to the post in question. It has to arrange the names in order of merit and forward the list to the Appointing Authority. it has been further provided in Proviso to Rule 21 of the Rules of 1978 that the Commission may to the extent of 50% of the advertised vacancies may keep the suitable candidates on the reserve list and Commission may on requisition recommend the names of such suitable candidates in the order of merit to the Appointing Authority within six months from the date on which the original list has been forwarded by the Commission to the Appointing Authority. So far as the period of six months is concerned, the same is not in controversy at all. The learned counsel for the appellant has submitted that whereas ten vacancies had been advertised, the reserve list to the extent of 50% i. e. 5 candidates could be prepared. The concept of reserve list as contemplated under rule 21 of the Rules of 1978 is entirely different and it has nothing to do with the proviso under Rule 17 of the Rules of 1978. Rule 21 of the Rules of 1978 essentially makes it permissible the preparation of the reserve list and we find that Rules 17 and 21 of the Rules of 1978 have to be applied in the context in which these Rules have been enacted and under Proviso to Rule 21, it is permissible for the Commission to prepare a reserve list of the selected candidates upto 50% of the advertised vacancies. It has not been explained as to why six names were there in the reserve list - but it appears that in the reserve list five names were of general category candidates and one was of schedule tribe - who was appointed but declined to join and therefore, his appointment was cancelled. In the instant case, the sole defence taken by the State is that the vacancies against which the appellants had been appointed were, in fact, not borne on the cadre of the service and whereas the appointments had been wrongly given to these appellants without notifying the same and they could not have been appointed on the basis of the reserve list, their appointments were bad in the eye of law and they have no basis to challenge the impugned order. ;